POPTS and Medicare Billing

Attached is a letter from the Department of Health and Human Services discussing the implications of the “incident to” rule on physician billing for physical therapy rendered either by physicians themselves or their staff. The letter offers much 'food for thought' and is a great read for anyone interested in the potential downsides of 'incident to' arrangements. The letter provides good evidence for the rise in claims coming from POPTS. Thoughts?

John

Download DHHS-2006-POPTSMedicareBillingLtr.pdf

Comments

[Selena Horner]

From my experience in a POPTS situation, my perspective is that physicians have been introduced to the amount of revenue that can be generated by providing PT services. I was with an ortho group, but in that list you can see that there were quite a few family physician groups. I don't believe that the family physicians were providing "physical therapy," but instead a procedure that fell in the physical medicine and rehabilitation CPT code category. There was a number somewhere in that OIG letter that indicated 50 patients treated in a day... I'm not saying that doesn't happen or couldn't happen, but the wrong CPT codes may have been used OR from the report there was no way to know who was providing the care - under incident to, how many providers were being supervised by the physician?

Without the appropriate personnel providing services and without personnel that are aware of the ever changing rules and regulations of CMS, I would expect what that OIG letter indicated. The orthos that I was employed with seemed to believe that because it was incident to that anything could be done. Not a single ortho knew that plans of care were required - they all assumed that if they wrote a patient needed PT, the patient needed PT and that met "medical necessity." I can attest that they also were unaware of the full definition of the CPT codes - unaware of the level of supervision and unaware of the 8 minute rule. From a business perspective, physicians probably tend to provide physical therapy services as a revenue generator without knowing the actual business of physical therapy.

Although that letter is directed toward POPTS, how much of that letter could be said about chart reviews of physical therapy provided in any setting?

[Mark F. Schwall, PT]

The OIG report on POPTS provides incontrovertable evidence that Physical Therapy continues to be vulnerable for exploitation due to our own failure to insist on ownership of our own profession.

Few other "professions" allow ownership of their professional services by those not licensed to provide those same professional services. As long as we as a profession fail recognize ownership as a primary tenet of professionalism we will continue to be exploited by those with the means and desire to do so.
Ms. Horner points out what seems to be in the forefront of the physician owners of POPTS is not doing what is in the best interest of the patient but the available revenue that can be gained especially if such services are being rendered in ways counter to the regulatory compliance standards established by state licensing boards, CMS etc.
While the point cannot be argued that there are those among us as private practitioner PT's who elect to practice unethically, I can also say that those scenarios which I've observed as being the most egregious are those Physical Therapy services being provided in non-PT owned situations either lay owned or by referral for profit owners.
How long will we let the media paint all of us with the same broad stroke of the "Physical Therapy" brush when they report the misdeeds of the miscreants exploiting Physical Therapy to their own benefit?
How much evidence must we have before we start to insist on exclusive ownership of Physical Therapy services by Physical Therapists?
Without ownership there is no accountability or control.

[Selena Horner]

Mark,

I definitely hear your perspective. I'm not sold on exclusive ownership of physical therapy businesses by physical therapists as being realistic.

The way I look at it, technically all physical therapists should be held accountable and should be responsible for the choices that they make. I will admit, that it is very, very difficult to be the one that makes waves and confronts situations that are unethical, fraudulent or not in the best interest of the patient. It isn't easy and there are consequences when taking a stance (especially over issues that potentially have an impact on profit). Of course the easy route is to either a) look the other way and decide that pulling a salary is of the highest priority or b) leave and never look back.

Most employers never really view that it can be costly to NOT follow rules and regulations. It seems that the common view is short-term and focused on profit. In other words, there seems to be an atmosphere in our professional world to roll the die and hope to not get caught. I guess that's a cynical opinion. I believe the other problem in our profession is the simple fact that there is very little value and no expectations for physical therapists to actually know the rules and regulations within their specific practice setting. I don't believe that every problem that occurs in our little world can or will be solved by exclusive ownership of physical therapy services by physical therapists. The lack of consistent regulations for various settings and poor enforcement of rules and regulations secondary to budgetary constraints combined with apathetic professionals, in my opinion, are the factors that if addressed could solve any type of referral for profit situation.

In my opinion, no one owns me but me. I don't care who I work for - be it physician, hospital, home health agency, school, CORF... My role as a physical therapist isn't just to treat the patient. My role as a physical therapist isn't to blindly follow what any employer may ask of me. My perspective of my role and my responsibilities and accountabilities reach much deeper - knowing my state practice act, knowing the third party payers that have business contracts with whatever organization I am employed, following the rules and regulations of those contracts to meet third party payer expectations, and not tolerating situations that are less than acceptable are factors that are just as important as treating a patient. The next important responsibility is to change those less than acceptable situations and not allow them to exist.

[Ken Mailly, PT]

My comment is that we need to take the results of this OIG report, multiply it across the entire universe of "physical therapy" claims for ALL payers, and imagine the impact. Now consider that Physical Therapists rely 100% on reimbursement for physical therapy, yet others who are being paid for "physical therapy" have alternative sources of reimbursement (E&M, Surgery, Management fees, etc).

I also think it is worth noting that the abuses within Chiropractic offices may be a great deal worse, as private payers would likely agree. The financial impact of such abuses on the private side likely dwarfs that under the Federal programs. Even so, the presence and enforcement of laws prohibiting such non-PT ownership is sadly lacking. As a result, "PT" is again dragged through the mud by Non-PTs.

From conversations we have had in cosulting with some of these payers, it is likely that they would strongly support a greater accountability in the provision of PT services, and restrictions on ownership of same. Would we?

These are some of the reasons I also support pursuing exclusive ownership of physical therapy services by physical therapists. This is a critical priority for our profession. We are being castigated for the misdeeds of others.

Below is a case-in-point in how Chiropractic & "physical therapy" can be painted with the same brush. IMHO, we should have great concern with such linkages.

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News: 2006 Press Release

For Release: May 3, 2006
Media Calls Only: 213-346-6342

Insurance Commissioner John Garamendi Announces No Contest Plea for Encino Chiropractor and Legal Assistant for Insurance Fraud - Must Perform 200 Hours of Community Service

Undercover investigators posed as traffic collision victims – found Encino chiropractor allegedly over- billed insurance companies for chiropractic treatments never rendered; legal assistant invoiced insurance companies for more than $30,000

LOS ANGELES - Insurance Commissioner John Garamendi announced today that Encino chiropractor Nasrin “Nancy” Hadizadeh Fathi, 43, and legal assistant Behrouz Beck Saffary, 51, have pled no contest and were found guilty of one count each of insurance fraud. Both defendants, who entered pleas on April 25, were placed on three years probation, ordered to perform 200 hours of community service and ordered to pay $9,416 restitution. They were also sentenced to one day in Los Angeles County Jail with credit for time served.

In February 2004, the California Department of Insurance’s (CDI) Fraud Division received a citizen complaint that Fathi was over-billing insurance companies for chiropractic treatment she never performed. Based on the complaint, the Fraud Division initiated an undercover investigation into Valley Spine Institute, the clinic operated by Fathi. Undercover investigators visited the clinic posing as traffic collision victims seeking treatment. On their first visit, Saffary made the investigators sign forms in order to be represented by the Law Offices of Karineh Avanessian. The investigators were treated by Fathi on no more than three occasions each. On their last visit to the clinic, Fathi and Saffary made the undercover investigators “sign-in” on multiple sign-in sheets to give the impression of a longer-lasting and more extensive chiropractic treatment than was actually delivered.

“This kind of fraud adds tremendously to the overwhelming costs that insurance companies face as a result of fraudulent claims,” said Insurance Commissioner John Garamendi. “I am committed to successfully finding these perpetrators and holding them accountable for their illegal activities.”

The involved insurance companies later received chiropractic bills from Fathi and settlement demands from Saffary, representing the Law Offices of Karineh Avanessian. 21st Century Insurance Company received medical bills and a demand for settlement in the amount of $18,770 for the two undercover investigators’ “injuries” and chiropractic treatment for 28 and 30 physical therapy visits each. Liberty Mutual Insurance Company received medical bills and a demand for settlement in the amount of $13,310 for one investigator’s “injuries” and chiropractic treatment for 27 physical therapy visits.

According to investigators, on June 9, 2005, Fathi and Saffary were arrested by CDI Fraud Division investigators, each on two counts of felony insurance fraud. Both individuals were booked at the L.A. County Jail with bail set at $40,000 each. At the time of the arrests, search warrants were executed at Valley Spine Institute and the Law Offices of Karineh Avanessian (the law office utilized by Saffary). The L.A. County District Attorney’s Office is prosecuting the case.

The National Insurance Crime Bureau, and the special investigative units of Progressive Insurance Company, Farmers Insurance Company, 21st Century Insurance Company and Liberty Mutual Insurance Company assisted the Fraud Division in this one-year investigation.
###

Please visit the Department of Insurance Web site at www.insurance.ca.gov .
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Telecommunications Devices for the Deaf (TDD), please dial 800.482.4833.

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[Ken Mailly, PT]

Selena:

I know you may feel that no one owns you, but if they own & control your professional services, that is almost as bad. While you may have taken action to address the abusive/fraudulent situation that you left, I'm sure you would agree that to do so requires severe sacrifice.

I'm sure we all wish to fully realize Vision 2020. I'm sure we also recognize the linkage between autonomy, professionalism & accountability. We need to similarly recognize the linkage between accountability, ownership & control. Otherwise I fear our Vision will prove to be myopic.

[Paul Simonetti]

I studied this report and realize that the most important change in the law has been made. PT provided in physician practices must be provided by PTs (correct my paraphrase as needed). The days of 97 series codes being performed by non-trained, non-educated PTs is abolished, which would take the 91% number down signifigantly. In the future, demanding each PT have his/ her own billing and ID number would make it easier for the audit to target individual providers who are billing out of logical norms. The PT can then be held responsible for their misbehaviour. Let us hope that those who were responsible in this report have met the proper punishment.

From the OIG report, a pediatrician was billing and average of $25K per beneficiary during a given year. Do the math on that one! Assume that they close on weekends and holidays, and that pediatric patients are likely to cancel and no show at a rate greater than average, and you are looking at 200 visits per year at a rate of > $100 per visit.

Is anyone shocked that no single ortho has made the list?

What are the OB/GYNs doing to make the list?

While at face value this report is alarming, some of it makes no sense.

[Selena Horner]

Ken, ownership and control... that kind of a statement would need further details.

For full control of our profession and our practices, as a whole, we need to be more active in assisting with creating the rules and regulations.

In regard to ownership, you know, patient care would not be better if ownership was completely owned by physical therapists. There are so many diverse employment opportunities that if ownership changed to only physical therapists owning anything that dealt with physical therapy, there would be a detrimental effect in patient care. What would happen to the cool things you hear about Kaiser Permanente (I'm sure I killed the spelling). What about hospitals? What about home health agencies?

Ownership of the CPT codes could potentially take care of some of the problem. Any physician can use those codes. IF the AMA altered the definitions for the CPT codes in the 97000 series such that physical therapists/physical therapist assistants were the only professional to utilize those codes, that might be quite helpful for our profession. It would clarify who was using the codes and then during any kind of audit or investigation, it would definitely keep the analysis more simple - either a PT provided the care/supervised the care or didn't. Combine that with a description that the codes cannot be utilized by a physical therapist or a physical therapist assistant until the patient was evaluated by a physical therapist. That kind of language would negate the ability for physicians to have physical therapists on staff doing "incident to" procedures as a revenue generator and being called "physical therapy" without the full package being provided to the patient. IF that kind of change occurred, well, to keep everyone happy, those same description of codes could be utilized in another series of numbers so that physicians could do that "incident to" procedure, but that "incident to" procedure just wouldn't be called "physical therapy." Someone could make up a whole slew of regulations that physicians would need to follow in utilizing those new codes - they just wouldn't be tagged to us as physical therapists and they wouldn't be considered physical therapy. I would hope that if physicians did have their own procedural codes that there would be limits put on the frequency of their use. If they use the codes on one particular patient in a frequency of 1-5 visits/week, then the interpretation is that the services being provided would be borderline "physical therapy" and payment would be denied because of the frequency of the provision of service and that a level of service of that frequency should be provided by physical therapists. A clause like that would protect third party payers and would protect us.

I think there are options and solutions to the issues we face that could keep everyone happy and allow for revenue to be generated by all.

[Jason Silvernail]

Ah, yes, more regulations... that's just the thing. That always improves things. Wait...

J

[Brian Duncan]

It seems that patient care would actually improve if PT's owned their own shop. Most other "doctoring" professions do not work for the hospital at which they provide servies. This allows for the doctor to focus on patient care and the hospital to focus on profitability and operations. This type relationship would probably spurn even greater innovation in the provision of physical therapy services...even at places like Kaiser Permanente. Heck, then hospitals might even have a Chief of Physical Therapy.

If we want to play with the big dogs, we must act like one. We must work with other physical therapists in partnerships and not for hospitals or any other professionals. Karl Gibson, member of the APTA Board of Directors, provides an excellent example. He is part of a hospital-based PT partnership in Pittsburgh that is doing quite well. This is a great example of a win-win for the patients, hospital, and physical therapists.

While a transistion to only PT owned PT practices would be a logistical challenge, it could be done. I hope for all therapists and especially us newbies it gets done sooner rather than later. Otherwise our professional growth will be limited not by ourselves, but by physicians, legislators, and healthcare administrators. What a frustrating thought.

[Ken Mailly, PT]

I think that all of the various viewpoints and opinions on ownership really boil down to one question: What is Physical Therapy?

Is it a service provided by many individuals, or a profession practiced by specific individuals?

If we are collectively undecided or unsure as to how we would answer this question, we have a very long road ahead of us.