“REHAB BY UNLICENSED PROVIDERS, A GROWING AREA OF INVESTIGATIVE CONCERN” RAISES ADDITIONAL QUESTIONS
-Linda K. Christy, D.C.-
Daniel J. Osborne, M.S. has expressed concerns regarding perceived current trends/practices in which chiropractors permit unlicensed individuals to perform therapeutic procedures in a manner violative of the Physicians’ Current Procedural Terminology CPT guidelines (“CPT guides”). Mr. Osborne states:
In working with health care providers throughout the country on compliance related matters I find that one of the more confusing areas, and potentially volatile practice activities for today’s chiropractor, is the billing for Therapeutic Procedures rendered by unlicensed staff. (Emphasis in the original.)
Mr. Osborne proceeds to reference several cases in which chiropractors are either sentenced, indicted, convicted, or sued for ill-defined practices, the suggestion of which is that the activities to which Mr. Osborne refers may result in similar consequences. Mr. Osborne goes on to state:
So what is the answer? Can a chiropractor train their unlicensed staff on “rehab,” or the administration of therapeutic procedures? Can a chiropractor have their unlicensed staff provide therapeutic procedures to patients while the chiropractor is in the clinic treating other patients? Can the chiropractor then bill for the procedures rendered by their unlicensed staff as if he/she personally performed them?
The foregoing are good questions. Unfortunately, many chiropractors fall prey to spurious interpretations of the actual services the codes represent. Too often, regulatory agencies (e.g., chiropractic licensing boards), law enforcement agencies, and insurance carriers rely on rather myopic applications of these codes, the result of which may be catastrophic for the unwary provider caught up in investigations undertaken by one or more of the aforementioned entities.
To ensure that there is no confusion regarding this issue, we would draw your attention to CPT guides 2004, i.e.,
A manner of effecting change through the application clinical skills and/or services that attempt to improve function.
Physician or therapist required to have direct (one-on-one) patient contact.
97110 Therapeutic procedure, one or more areas, each 15 minutes; therapeutic exercises to develop strength and endurance, range of motion and flexibility
AMA’s CPT Information Services (“CPT-IS”) states that to satisfy the “one-on-one@ requirement, the provider or therapist must remain in contact with the patient via sight, sound or touch.
In the AMA’s The CPT Companion: Frequently Asked Questions About CPT Coding (1998, p. 133), we find the following:
The term “provider,” as found in the Physical Medicine section of CPT, is a general term used to define the individual performing the service described in the code. The provider does not have to be a physician but can be, and in most case (sic) is, a physical or occupational therapist. Therefore, when the CPT manual refers to provider, it is referring to the individual, such as a physician, chiropractor, therapist, etc., who will be rendering the service described in the code.
In addition to the foregoing, as explained in the AMA’s CPT Assistant Volume 8, Issue 12 – Winter 1998, page 2,
[N]o distinction is made concerning the licensure or credentials of the “provider,” and that those codes containing the term “provider” can be used by anyone qualified to perform the service represented by the specific code. CPT is not a regulatory entity, nor does it become involved in third-party payer issues. As such, appropriate state and institutional entities should be consulted regarding the appropriate requirements of . . . services rendered by health-care professionals. (Emphasis added.)
The Texas Board of Chiropractic Examiners (“TBCE”) Board Rules, § 80.1 provides the following guidance:
(a) Except as provided in this section, a licensee shall not allow or direct a person who is not licensed by the board to perform procedures or tasks that are within the scope of chiropractic, including:
(1) rendering a diagnosis and prescribing a treatment plan; or
(2) performing a chiropractic adjustment or manipulation.
(c) “Qualified and properly trained” as used in this subsection means that the person, in addition to the requisite training and skill, has any license or certification required by law in order to perform a specific task or procedure. A licensee may allow or direct a qualified and properly trained person, who is acting under the licensee’s supervision, to perform a task or procedure that assists the chiropractor in making a diagnosis, prescribing a treatment plan or treating the patient if the performance of the task or procedure does not require the training of a chiropractor in order to protect the health or safety of a patient, such as: * * *
(5) performing prescribed physical therapy modalities;
(6) demonstrating prescribed exercises or stretches for a patient; or
(7) demonstrating proper uses of dispensed supports and devices.
CPT-IS, in response to an inquiry regarding the issues discussed herein, dated 09-19-02, responded, in part, as follows:
The term “provider” as stated in the guidelines for the Physical Medicine and Rehabilitation section of the CPT coding system is intended to encompass both physicians and therapists. To answer your specific question, the term “provider” is interchangeable with both terms “physician” and “therapist” in the Therapeutic Modality and Therapeutic Procedure subsections of the CPT coding system.
It is important to recognize that the listing of a service and its code number in a specific section of the CPT 2002 book does not restrict its use to a specific specialty group. (Emphasis added.)
Mr. Osborne concludes by stating:
When all is said and done, the provider must determine for themselves, via use of suitable legal and compliance resources, the appropriateness of billing for therapeutic procedures by unlicensed staff. The answer here could be that if the [respective regulatory] board allows for the delegation of these procedures to non-licensed staff, and the involved third-party payer is aware of this activity and has approved it, then I suspect that the provider would have minimal problems, if any. However, providers who do not take the necessary steps to ensure compliance may find themselves in the midst of a nightmare should this activity become the next big area of focus for health care fraud investigators and prosecutors.
We would caution providers not to abandon reason. As we are often told, “When all else fails, read the instructions!”
If we adopt the position Mr. Osborne appears to suggest, absent the imprimatur of both regulatory agencies and insurance carriers, we are left with the conclusion that licensed providers are the only individuals who can administer both therapeutic procedures (e.g., CPT-97110) and therapeutic modalities (e.g., CPT-97039). In lieu of approaching the issue with preconceived notions, read the information provided herein carefully. In doing so, I suspect providers will reach conclusions contrary to Mr. Osborne’s.
Once again, CPT-IS, in response to an inquiry regarding the issues discussed herein, dated 09-19-02, responded as follows:
The term “provider” as stated in the guidelines for the Physical Medicine and Rehabilitation section of the CPT coding system is intended to encompass both physicians and therapists. To answer your specific question, the term “provider” is interchangeable with both terms “physician” and “therapist” in the Therapeutic Modality and Therapeutic Procedure subsections of the CPT coding system. (Emphasis added.)
The Physical Medicine and Rehabilitation section to which the foregoing refers encompasses the following: (1) therapeutic modalities, both “supervised” (e.g., hot/cold packs) and “constant attendance” (e.g., ultrasound); (2) therapeutic procedures; (3) active wound care management; (4) tests and measurements; and (5) other procedures. “Constant attendance” modalities include CPT-97032 through CPT-97039.
Therefore, if the terms provider, therapist, and physician are interchangeable, and if Mr. Osborne is correct in his concern (i.e., the performance of “rehab by unlicensed individuals . . . [will] become the next big area of focus for health care fraud investigators and prosecutors”), and therapeutic procedures must be performed by licensed individuals, sans the requisite imprimatur to which Mr. Osborne refers (i.e., “the board allows for the delegation of these procedures to non-licensed staff, and the involved third-party payer is aware of this activity and has approved it”), it would be logical to conclude the following:
Provider = Therapist = Physician;
Constant attendance modalities require direct (one-on-one) patient contact by the provider/therapist/ physician;
Ultrasound (i.e., CPT-97035) is a modality requiring “constant attendance”;
Therefore, the application of ultrasound requires direct (one-on-one) contact by a licensed provider.
The foregoing is merely a logical extension of Mr. Osborne’s argument. However, we have not encountered any insurance carriers that assert that only licensed individuals may administer ultrasound, assuming a licensed and qualified individual has prescribed the modality.
Contrariwise, if one were to argue that properly trained and otherwise qualified unlicensed individuals may administer duly-prescribed ultrasound, and “the term ‘provider’ is interchangeable with both terms ‘physician’ and ‘therapist’ in the Therapeutic Modality and Therapeutic Procedure subsections of the CPT coding system,” one must inexorably conclude that properly trained and otherwise qualified unlicensed individuals may also administer the duly-prescribed therapeutic procedures to which Mr. Osborne refers.
Although we agree with Mr. Osborne that the issue he raises is worthy of discussion, we respectfully disagree with Mr. Osborne’s conclusions. We certainly encourage providers to review billing practices carefully and to be judicious with respect to the eisigetic (i.e. reading one’s own interpretation into an issue) use of CPT codes. However, we would also caution providers against allowing other individuals, albeit well-meaning, to pigeonhole them into adopting billing practices that are inconsistent with the very guidelines in which the codes are contained.