Academy of Chiropractic’s Doctors PI Program
Practice Compliance #3
From the Desk of :
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
“Predetermined Practice Protocol”
I just received this:
State Farm has filed yet another Federal Lawsuit against a medical provider, the owner, doctors and billing company. I am not providing the name of the defendants on purpose. They are alleging (a) subjecting patients to services that are performed pursuant to a predetermined protocol, if they are performed at all, and not because they are medically necessary; and (b) submitting bills and supporting documentation for services that are not lawfully rendered because they are performed in violation of medical director law. They are alleging unnecessary…
40-50% of the time that I do compliance reviews for doctors nationally, I see predetermined protocols of treatments. Most are quoting the “Croft Guidelines” based upon those being accepted by our political and other organizations. First, let me state that Arthur Croft is by far, the best at what he does and I strongly recommend that you take his courses in crash dynamics. There is no one else in the world who does what he does. However, he does not do what we do.
I happen to agree with his guidelines as a global game plan, but not for any individual patient. By many Federal and state guidelines, you need to follow a specific protocol in recommending care. There is no licensure board or state entity that supports those guidelines and that is the root of the problem. In addition, it exposes you to serious allegations, lawsuits and licensure violations should you choose to follow those guidelines and worse, document them in your reports (see above language in the State Farm lawsuit as verification).
The other problem is that too many have already memorialized those guidelines and others in their previous reports and those are now “fair game” to the carriers because in fraud allegations, there are no statute of limitations in most courts. In addition, the carriers when claiming fraud either in a state action or Federal RICO take significant liberties and allege that 100% of your care and referrals are also fraudulent in the hope that if only 1 point is won, then you lose everything. Or… based upon the allegations, you will have HUGE legal defense bills in an action that can play out for years and you eventually settle because you ran out of money or fear or frustration, which is a huge payday for both the carriers and their lawyers.
As verification, here is the rest of that lawsuit from State Farm:
The Predetermined Protocol includes: (a) failing to legitimately examine patients to determine the true nature and extent of their injuries; (b) rendering predetermined diagnoses of, among other things, sprains and/or strains of the cervical, thoracic, and/or lumbar regions of the spine, as well as tenderness, for the vast majority of patients; (c) the referral of patients for medically unnecessary re-examinations and/or consultations at XXX that invariably result in the same predetermined diagnoses and treatment plans for nearly every patient; (d) implementing the same treatment plan for virtually all patients, which consists of a laundry list of chiropractic manipulations and the same passive modalities – hot and/or cold packs, electrical stimulation, mechanical traction, therapeutic ultrasound, and manual therapy/therapeutic massage (“the Five Modalities”) – combined, only in limited instances, with active modalities such as exercise, to nearly all patients on every visit for as long as possible to exhaust, or substantially reduce, the patients’ No-Fault Benefits, regardless of their unique conditions, needs, and progress, or lack thereof; (e) the ordering and performance of computerized range of motion (“ROM”) and muscle strength (“MS”) tests to more than half of the patients to support the purported need for continued treatment at the XXX when, in fact, the results of these tests are not considered or integrated into the treatment plans; (f) the ordering and dispensing of medically unnecessary TENS units to more than half of the patients at the XXX , which were purportedly purchased by the YYY, a shell company owned by ZZZ, as a ruse to enable the XXX to support fraudulent charges for such units; (g) the billing of services provided at the XXX by YYY, a sham entity that is owned by LLL and which purports to be a separate provider located within certain XXX locations that bills for medically unnecessary services; (h) the ordering and performance of medically unnecessary x-rays and MRIs to support the purported need for continued treatment at the XXX, and not because these diagnostic images are considered or integrated into the treatment plans; (i) referring a majority of the patients for medically unnecessary MRI services to XXX MRI, an entity that is owned by LLL; (j) providing services until the patients either decide on their own volition to stop treatment or No-Fault Benefits are substantially reduced or exhausted; and (k) submitting bills and supporting documentation to State Farm falsely representing that the examinations, diagnoses, diagnostic services, and treatments purportedly rendered to patients were medically necessary when, in fact, they were either not performed or were performed pursuant to the Predetermined Protocol, not because they were medically necessary.
Virtually none of these allegations are true, but this entire action was spurred by the doctor rendering an “entire case” treatment plan on day 1.
I have held for over a decade that you do not do that, in spite of others pumping out guideline after guideline. It is the shortest road to practice, financial and personal ruin!
The ONLY protocol you can follow is treat for 30 days and then based upon your next re-evaluation make your recommendations for the next 30 days. PERIOD!!! The Federal guidelines (ones that you are required to follow with Federal reimbursement (Medicare) state that the patient in any physical medicine environment (that includes chiropractic) SHALL re-evaluate the patient every 30 days. What does that have to do with personal injury and managed care if they are not a Federal entity? EVERYTHING!!!
Most carriers follow the Federal guidelines and even if they don’t, the Federal guidelines are the most stringent in the nation and if you meet that standard, you should be close to bulletproof. As a caveat, there are some state guidelines with Workers Compensation and No-Fault states that required a re-evaluation in 45 days vs. 30 days. This is where you MUST know the regulations in your state and follow them to the letter. This is not the pace for artistic freedom.
In addition, some of you are truly “demented” and try to “outsmart” the system and figure that in 30 days you will see the patient 3 times a week for 4 weeks and change the rules to have the patient re-evaluated in 12 visits. Those aren’t the rules and if you break them… take out your checkbook because that is a predetermined protocol. This is an issue of time between re-evaluations in active care.
The lawyer who forward this to me through one of our doctors concluded:
The provider that was sued is looking at huge legal defense fees. This is what State Farm does. They drain the providers’ money until they have no choice but to settle. I have seen it a few times. State Farm hates paying claims even to good doctors.
Although the lawyer has seen this a few times in his career, I go through this on a monthly basis with doctors nationally. Perhaps not this exact scenario, but this is a common theme.
When I give you protocols to follow, they are at the most conservative level of practice and based upon the EXACT letter of the regulations. Follow them and be as bulletproof as possible. Sleep better at night and KEEP YOUR MONEY!!!