NEWS AND VIEWS FOR PTs

A complimentary newsletter from

MAILLY INGLETT & BARMAK, LLC

Educators and Consultants to Physical Therapists

 
NOVEMBER, 2011 - Volume 2, Issue 8
In This Issue
The Physical Therapy Profession is in Jeopardy of Disappearing
For Your Information Q&A


 

Barry
Barry Inglett

 

Ken
Ken Mailly

 

David
David Barmak

The Physical Therapy Profession is in Jeopardy of Disappearing

 

David S. Barmak, Esq.

Court Decisions Undermining the Profession of Physical Therapy

 

In 2006, the Law Offices Of David S. Barmak, LLC represented a physical therapist. We brought suit against a business providing physical therapy and owned by a non-licensee. The suit alleged that the non-licensee owner decided to set our client's professional fees based upon making the numbers round out to an even number, not based upon the therapist's sense as to appropriateness for services rendered. There were additional complaints all of which stemmed from the business owner's agenda being in perceived conflict with licensee's professional perspective. Unfortunately the Court didn't address the underlying ownership issue and instead the lawsuit ended prematurely based upon a different issue.

 

In 2007, the Kentucky Supreme Court held that an orthopedic surgeon as well as a licensed physical therapist, may provide physical therapy and that the surgeon may represent to others that he is providing physical therapy services. (Surgeon was permitted to use AMA billing codes for "physical therapy evaluation" and "physical therapy reevaluation")

 

In 2010 a physical therapy practice sued an orthopedic practice over the employment of physical therapists. The Washington State Supreme Court held that orthopedic surgeons can employ physical therapists.

 

In 2011,the New Jersey Society of Independent Physical Therapists sued a non-licensee owner of a business employing a physical therapist for improper corporate structure and fee splitting. Unfortunately these issues were never addressed because the court decided the matter on the limited issue of standing.

 

Court Decisions Supporting the Profession of Physical Therapy

 

In the early 1990's, a New Jersey Court held that "strengthening and stretching exercises" constitute physical therapy and therefore within the scope and practice of physical therapists, not chiropractors. Subsequent to this decision, the chiropractor practice act today permits chiropractors to provide "rehabilitative exercises among other things" but this is NOT the same as "strengthening and stretching exercises". The ultimate determiner of the meaning behind these words will need to be a court addressing the issues of what is the accurate legal definition of physical therapy and what constitutes physical therapy.

 

In 1995 the Pennsylvania Supreme Court held that the term "physical therapy" is NOT a generic term and therefore chiropractors can not claim that they provide physical therapy.

 

In 1999, the New York Supreme Court upheld a similar conclusion when it determined that Health South had violated the New York State prohibition against general business corporations practicing physical therapy.

 

Prior to 2006, Judge Villanueva in Morris County, NJ held repeatedly that improper incorporation by a professional required a return to the insurance company of all moneys received by the professional; improper fee splitting with a non-licensee constituted fraud.  Judge Villanueva repeatedly upheld the Corporate Practice of Medicine prohibition that general business corporations cannot engage in the practice of medicine or chiropractic. 

 

Judge Villanueva also repeatedly upheld the requirement that professionals must be established in the corporate structure of a PC or PA under the New Jersey Professional Service Corporation Act.

 

In 2006, the South Carolina Supreme Court prohibited a physical therapist from working as an employee of a physician when the physician refers patients to the physical therapist for services.

 

In 2006, the Superior Court of New Jersey decided that a physical therapist can not split fees with a non-licensee and that a physical therapy practice if incorporated, must adhere to the Professional Services Corporation Act.

 

Conclusion

 

There are a handful of court decisions in various states, including New Jersey, that clearly indicate that physical therapy is a profession. There are a few court decisions that undermine this perspective by fraying the edges of the profession. It seems to me that now is the time to push the courts to review and determine clearly the issue of ownership and the definitions needed to define for everyone the exclusive realm of the profession of physical therapy.

 

The physical therapy profession has not made much effort to engage in a relationship of mutuality with physicians, chiropractors, business people and even other physical therapy licensees from a position of strength with firm, well defined boundaries. Time does not appear to be on the licensee's side. Erosion is slow and subtle but over a long period of time erosion can have a devastating and irreversible impact.  The courts are the last venue in which to further define physical therapy services, who can provide physical therapy services and who can own a physical therapy practice which provides physical therapy services.   This perspective is supported by the successes, albeit limited, throughout the country, especially in New Jersey.

 

So while time may be running short for physical therapists to finally claim full and proper possession of the professional services that they work so hard to provide, the clock has not yet run out. Will physical therapists fight to retain what is already theirs, despite the fact than many physical therapists fail to recognize the fact that they possess it?  Time will tell.

For Your Information Q&A

Question: 

I recently saw that after Dec 31 we were going to need form 5010 to submit to Medicare.  My software company requires new software to accommodate this, which is very costly.   Just wondering what the Society knows about this and if anyone has any software recommendations for this, as well as computerized notes.

 

Response:

You are correct that beginning 1/1/12, all providers must comply with the new 5010 format for submitting electronic claims.  This is part of the preparation for transitioning to ICD-10, currently scheduled for 2013.  You might consider reviewing the fact sheet regarding this transition here:

https://www.cms.gov/ICD10/downloads/w5010BasicsFctSht.pdf.  While NJSIPT does not make recommendations for products or services, you might take advantage of networking with your member colleagues to discuss their own experiences with various vendors and products.

 

Question:

We are having kind of an argument in our office, and are wondering if you can help settle it.  If I communicate with my patient via email, is that considered part of their medical record?

 

 

Response:

Simply put, yes.  We now live in an electronic age, and laws are being changed to reflect this reality.  Not only should such electronic communications be considered part of the patient record under NJ PT regulations, which would arguably including documentation of phone conversations and instant messages (IMs), but federal law requires that such communications be archived and produced upon demand.  This requirement is contained the Federal Rules of Civil Procedure (FRCP).  As of December 2006, we must meet the Discovery requirements as stated in the FRCP. These rules were amended to help courts adapt to the onset of electronic stored information (ESI).

 

These requirements recognize all electronic communications, especially email and IMs as discoverable in legal proceedings.  This means that there is now a clear responsibility to produce ESI or face penalties under the law.   These potential penalties are outlined in Section V, Rule 37 "Failure to Make or Cooperate in Discovery; Sanctions," and include paying the expenses of the opposing party, contempt of court, imposition of sanctions, or even a default judgment.

 

Reference:

Federal Rules of Civil Procedure: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Civil%20Procedure.pdf

 

NJ PT Regulations:

http://www.njconsumeraffairs.gov/laws/ptregs.pdf

 

Question:

We are trying to track down in the NJ State law where it specifically indicates that a patient must be seen within two weeks from the original date of the prescription. Can you help us pin that down?

  

Response:

You are having trouble tracking down such a requirement in NJ law because it doesn't exist. In fact it never has, nor has a requirement for "prescription". If you still have questions regarding this response we would suggest a conversation to clear up any misconceptions.

 

 

 

 

 

 

 

 

 

Mailly Inglett & Barmak, LLC  
Ken Mailly, PT, MPA, NJ Lic. # NJ40QAOO335900
 
Ken is a graduate of the State University of New York at Downstate Medical Center, and completed his Master's in Public Administration at Seton Hall University, with a concentration in Health Care Policy and Management. He is also certified as an Ergonomic Specialist, and as a Rehabilitation Agency Medicare Surveyor.

In addition to his graduate studies, with well over 2,500 hours of continuing physical therapy education, Ken has amassed an extremely diverse and extensive knowledge of the clinical practice of physical therapy, rehabilitation, and practice management. Ken's primary clinical focus is in orthopedics, chronic soft tissue disorders, and management of patients with bleeding disorders.

Along with this clinical knowledge base, Ken has devoted the last 10 years to the study of regulation, legislation, and reimbursement for physical therapy & rehabilitation services. He has served as an expert witness, on behalf of both plaintiffs and defendants, in numerous malpractice cases. He has also been consulted on state, federal, and third party payer inquiries regarding physical therapy and rehabilitation billing, regulatory, and legal issues.
 
Ken is a partner in Mailly & Inglett Consulting. His focus is on compliance with professional standards, state and federal regulations, as well as practice management strategies.
 
Barry G. Inglett, PT, CHT, Cert. MDT, NJ Lic # NJ40QA00146200
 
Barry is a graduate of Columbia University, a Certified Hand Therapist and a Credentialed McKenzie Therapist. He is a physical therapist and co-owner of Wayne Physical Therapy & Spine Center, a private practice established in 1977. Barry is also a partner in Mailly & Inglett Consulting, working with both physical therapists and Payers.
 
Barry is a guest lecturer for UMDNJ's Physical Therapy Program as well as a clinical instructor for several colleges including Columbia University, New York University, Temple University, Stockton State College, Kean College and the University of Medicine and Dentistry's Physical Therapy Program. He is also an instructor for HMW (Human Mechanical Wellness) Seminars, specializing in mechanically oriented treatment programs for the spine and extremities.

Barry has been retained by numerous insurance companies as well as the New Jersey Attorney General's Office offering expert witness testimony in physical therapy practice. He has been involved in utilization review and reimbursement issues in physical therapy for over 20 years. Barry also instituted, and was retained as the lead expert, in the largest PT fraud case in NJ history (Cobo v. MTF). He also served as a physical therapy consultant from 1997-2005 for Horizon Healthcare running the NJ Plus pre-certification program. Barry has served on the New Jersey Board of Physical Therapy Examiners in the past for eight years and has also served as the Chairman of the Board of Physical Therapy Examiners.

David S. Barmak, Esq.
 
David S. Barmak, Esq. received a JD from Cornell University and a BA from Duke University. The Law Offices Of David S. Barmak, LLC was established in 1984. David is licensed to practice law and has clients in the states of New York, New Jersey, Pennsylvania and Connecticut.
 
David's legal focus is in the areas of corporate compliance, risk management, human resources and operational legal affairs.
 
David has a strong background in operations, having served as both the Associate Administrator and General Counsel for a large New York Certified Home Health Agency, initiating and directing a New York Licensed Home Care Services Agency as well as owning and operating a Durable Medical Equipment company. David also provides defense of enterprises, directors, officers and other professionals accused of misconduct.
 
For more information, please contact us:
 
Mailly Inglett & Barmak, LLC
info@maillyinglettbarmak.com
 
© Copyright, 2011. Mailly Inglett & Barmak, LLC. All rights reserved. No portion of these materials may be reproduced by any means without the advance permission of the author.