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PRESS RELEASE ARCHIVES
Time To Revamp Archaic PIP “Utilization
Review System”
On May 3, 2001, the
Massachusetts Board of Registration of Chiropractors published “Peer Review
Guidelines.” Those guidelines were to be used by the Board as an
“internal management tool in formulating decisions that relate to issues of
chiropractic practice.” In that very same instrument the Board stated
that the profession needed to respond positively to the evolving managed
health care delivery system. In that very same document, the Board
highlighted that one of its responsibilities was to ensure that licensees
follow appropriate protocols and criteria in all aspects of the delivery of
chiropractic services, including the performance of independent medical
examinations and record
reviews.
The Board’s Failure to Meet its
Own Published Goal Has Resulted in Numerous Complaints Against Massachusetts
Chiropractors.
On May 3, 2001, the Board stated
that it was responsible for ensuring that licensees followed “appropriate
protocols and criteria in all aspects of the delivery of chiropractic
services.” Today, more than 5.5 years later, is it not fair to say that the
Board has failed to provide licensees that guidance? Nowhere is the Board’s
failure to lead more noticeable than the highly visible personal injury
arena.
In 2001, The Board expressly
stated its expectation to monitor the practice of chiropractic through the
use of “appropriate protocols and criteria.” Despite this published
purpose, to this day, treating chiropractors must develop care plans for
accident victims without such board guidance. Taking advantage of this
“information vacuum,” IME and record review doctors render “opinions,” often
generic, citing a sentence(s) from an alleged authority as rationale for
terminating benefits. Even more concerning is that such reviewers will
frequently opine, without citing authority, that the patient received too
much treatment. When passed to the insurer, these “opinions,” can and have
led to Board complaints.
Any counsel representing
chiropractors in front of this Board will tell you that it is a timely,
expensive and pain-staking situation for the licensee. The Board secures
medical records, bills and reviews the same against the “complaint.”
Frequently, the Board will then decide whether the medical records and bills
comply with 233 CMR 4.02, and 4.05. Since the chiropractor’s documentation
regulations are comparatively so extensive, the Board, if it so desires, is
able to take a typographic error, or a failure to document the time, or
other detail of a supportive modality and “create” a case against a
licensee. The chiropractor
has no “protocol or guideline”
to fall back on. In these cases, the chiropractor is a victim of a system
fraught with misinformation, no information, and (as promised 5.5. years
ago), absolutely no “protocols or guidelines.”
Board of Registration of
Chiropractors regulations are not universally applied. A licensee,
completing an IME or record review, is “practicing chiropractic.” (See Board
of Registration of Chiropractor’s June 3, 2005, Advisory Opinion) At a June
15, 2006, public hearing on IME’s and Record Reviews, the Board Chairman
stated that almost half of the complaints filed against chiropractors were
against chiropractors doing IME and Record Reviews. Despite that admitted
fact, a review of the Division of Professional Licensure’s web site would
prove that chiropractors working for the insurance industry somehow are able
to escape scrutiny unscathed. Standards simply are not applied
equally.
Concerns Regarding Patient
Safety and Utilization Review Does Not End With the Licensing Authority.
Auto Parts or Body Parts?
On the surface it would appear
nonsensical to include discussion about automobile damage appraisals in a
document concerning utilization review; however, one cannot ignore the
weight that the current system places on one “inspection” over the other.
On February 16, 2006, the
Commissioner of Insurance approved the proposed revisions involving Section
IV Voluntary/Ceded Claims Handling Differential and the Penalties Section of
the Performance Standards. Sections I, II, III and V concerning the
handling of the physical damage and Property Damage Liability, No Fault
Personal Injury Protection, Bodily Injury Expenses and the Measurements to
reflect NAIC requirements. These performance standards provide considerable
insight into the industry and how particular matters are “valued” by the
automobile insurance industry.
Section I, Paragraph 7, of the
approved standards, Appraisal of Damage and Reinspections state in part that
“carriers must have a plan for periodic evaluation of the quality and
accuracy of independent appraisers used by carriers.” Few would argue that
this performance standard would seem to safeguard the consumer from
inaccurate, or under valued appraisals.
In Section III, of the same
performance standards, the automobile insurance industry addressed No-Fault
Personal Injury Protection Benefits Handling. These standards recommend that
a “Carrier should establish a plan to maintain a continuing awareness of the
disability claimed, the medical treatment, and whether the treatment and
medical expenses are reasonable, necessary, and related to the auto
accident.” It continues to state that “any plan must include consideration
for arranging timely independent medical examinations, medical bill reviews
including but not limited to a determination of usual and customary charges,
use of preferred provider organizations, managed care programs, and/or
expert medical systems.”
These standards were approved by
the Insurance Commissioner. The performance standards for the automobile
insurance industry require periodic evaluation of the quality and accuracy
of independent damage appraisers used by carriers. Those same performance
standards are strangely silent as to whether to evaluate the quality and
accuracy of independent medical examiners and record reviewers. How can it
be said that the existing system is safeguarding consumers when assessing
the quality of vehicle damage appraisals is given more weight than assessing
the quality of physicians examining patients?
Auto Insurers are NOT Set Up to
“Manage Care.”
Massachusetts insurance defense
attorneys often point to the same standards mentioned above, in defense of
their clients’ activities in the handling of Personal Injury claims. The
insurers quickly argue that they are only doing what they are mandated to
do, that is, that “carriers should establish a plan to maintain a continuing
awareness of the disability claimed, the medical treatment, and whether the
treatment and medical expenses are reasonable, necessary and related to the
auto accident.” Defense Counsel argue that these standards require them to
perform “timely independent medical examinations, medical bill reviews,
including but not limited to a determination of usual and customary charges,
use of preferred provider organizations, managed care programs and/or expert
medical systems.”
This argument is sound and is
supported by language in the “PIP statute” itself. MGL ch. 90 s. 34M,
states in part:
“…The injured person shall
submit to physical examinations by physicians selected by the insurer as
often as may be reasonably required and shall do all things necessary to
enable the insurer to obtain medical reports and other needed information to
assist in determining the amounts due…”
And that…
“no insurer shall refuse to pay
a bill for medical services submitted by a practitioner registered or
licensed under the provisions of chapter one hundred and twelve, if such
refusal is based solely on a medical review of the bill or of the medical
services underlying the bill, which review was requested or conducted by the
insurer, unless the insurer has submitted, for medical review, such bill or
claim to at least one practitioner registered or licensed under the same
section of chapter one hundred and twelve as the practitioner who submitted
the bill for medical services…”
Well then, automobile insurance
companies are correct in coordinating such reviews, right? Right. But, we
now know that there is no requirement for monitoring the doctors assessing
the reasonableness and necessity of a particular patient’s care. In short,
there is no “quality assurance monitoring” of physicians that automobile
claims adjusters rely upon when deciding to “cut-off” a patient’s PIP
benefits. Something must change.
Most automobile insurers, will
contract with a separate, unregulated entity to assign reviewers and
examiners. Most if not all of these companies are not headed up by a
physician. There is no oversight as to what physicians are placed on their
panels. Managed care in Massachusetts is markedly different.
Companies coordinating such
“examination” and “peer review services” for Massachusetts automobile
insurers include, at least:
Quality Medical Evaluations,
Inc., 110 Turnpike Rd., Suite, 204, Westboro, Massachusetts. The President
of the company is listed as Mr. Joseph M. Quaranto. A review of the Board
of Registration in Medicine and the Board of Registration of Chiropractors
fails to list Mr. Quaranto. It would appear that any quality assurance or
credentialing of medical doctors or chiropractors would be led by a lay
person.
Scope Medical, LLC, 62J Montvale
Avenue, Stoneham, Massachusetts. This company list Katherine S. Jordan and
Kathleen M. D’Amore, as its Managers. Upon a review of both Board of
Registration in Medicine and the Board of Registration of Chiropractors’ Web
site, it appears that neither Ms. D’Amore,
or Ms. Jordan is licensed
physicians in the Commonwealth of Massachusetts.
Soft Tissue Solutions, LLC,
lists its address as 32 Pelican Drive, Walpole, Massachusetts. Maryann
Falvey is the president of Soft Tissue Solutions, a consulting organization
that provides adjuster education, risk assessment and expert opinions on
soft-tissue injuries to local, regional and national automobile insurers.
Maryann has served as a multi-line casualty adjuster, fraud and litigation
specialist. See Dynamic Chiropractic, May 22, 2006, Volume 24, Issue 11.
Ms. Falvey is not listed as a physician Member by either the Massachusetts
Registration of Chiropractors or Medicine.
Northeast Medical Evaluations,
Inc. lists its office at 83 Cambridge Street, Burlington, Massachusetts.
This company lists its President as Mr. Philip M. Bibbo, and Treasurer, as
Mr. Joseph S. Smalarz. Neither of these gentlemen is listed as Massachusetts
physicians.
Managed Care entities retain
Medical Directors to oversee utilization and quality of care concerns.
Allen J. Hinkle, M.D., is Tufts Health Plan’s Senior Vice President and
Chief Medical Officer. Dr. Hinkle is responsible for medical management and
clinical services for Tufts Health Plan. Roberta Herman, MD
is the Chief Medical Officer and Senior Vice President of Health Services,
for Harvard Pilgrim Health Care. Not to be out done, John Fallon, M.D., is
the Senior Vice President, Chief Physician Executive, for Blue Cross Blue
Shield of Massachusetts.
Managed care insurers all have
rigid credentialing procedures for their physicians. Automobile insurers,
unlike managed care insurers have no credentialing process for physicians
completing IME’s and record reviews. Automobile insurers, like managed care
insurers, perform utilization and quality reviews on a case by case basis.
Unlike the aforementioned Managed Care insurers, automobile insurers have no
medical oversight of such activities.
Patient Protection for
Individuals involved in Car Accident?
Largely due to overwhelming
public sentiment, the Massachusetts managed care industry, and its
utilization review processes, are both highly developed and regulated.
Massachusetts Automobile insurance companies, and their paid, “utilization
reviewers” are neither. The Massachusetts’ Board of Registration of
Chiropractors in its “Peer Review Guidelines” state that it expects that
chiropractors will voluntarily follow said guidelines “in order to protect
and preserve public confidence in these utilization review mechanisms.”
As more clearly described below,
voluntary guidelines fail because it appears that when Board Members
complete record reviews for insurance companies, they do not cite “currently
accepted literature” in supporting their opinions. Evidently, “leading by
example” is not monitored at the Board of Registration of Chiropractors.
Managed care is different. The
Legislators, in drafting MGL ch. 176O, and, in regulating the managed care
industry, actually created a separate office called, the Office of Patient
Protection. See MGL ch. 111 s. 217. Patients involved in automobile
accidents in Massachusetts have their initial benefits determined by
unregulated and unknown “physicians.” Victims of Massachusetts automobile
accidents do not have any formal appeal process. Victims of Massachusetts
automobile accidents do not have the right to an external review of their
case. The unfortunate individuals injured in automobile accidents in the
Commonwealth of Massachusetts need “protection.”
The Office of Patient Protection
develops regulations and implements new statutory provisions of M.G.L. Ch.
176O. The Office governs managed care carriers' internal grievance
procedures, details certain guarantees of continuity of care, specialty care
referral and coverage, and establishes a process for obtaining an
independent external review where coverage is denied based upon a medical
necessity determination. The personal injury protection system lacks such
governance and oversight.
Through efforts of such leaders
as Nancy Achin-Audesse, the Executive Director of the Board of Registration
in Medicine, in 1996, that Board implemented the first in the Nation,
physician profiling system. This system provides the consumer the ability
to access information about a provider’s malpractice history, criminal
history and hospital discipline history via the internet.
Following the leadership of the
Board of Registration of Medicine, the Board of Registration of
Chiropractors now publishes “Board discipline” histories of individual
chiropractors. As outlined in much further detail below, public disclosure
information is compromised if all cases do not receive equal scrutiny.
In a June 15, 2006, public
hearing on IME (Insurance Medical Examinations) and Peer Review/Record
Reviews, the current Chairman of the Board of Registration of Chiropractors,
stated that almost half of complaints received by the Board involved IME and
Record Reviews. As stated earlier, it appears that chiropractors paid by the
automobile insurance companies do not receive formal discipline by current
Board members.
The message sent to the public
is that it is fair and just to have different standards and expectations for
treating chiropractors than for chiropractors examining patients for
automobile insurance companies. It appears this way because chiropractors
evidently receive far less scrutiny from the licensing authority when
practicing chiropractic at the request of automobile insurance companies.
Oversight and Accountability.
In drafting and ultimately
implementing MGL ch. 176O, the legislators and Governor, created a number of
processes, tools and committees to oversee the adverse determinations,
complaints against providers and quality of care rendered to manage care
patients. The Regulations were drafted very particularly to ensure that the
Office of Patient Protection, did not overlap, or duplicate efforts of the
Managed Care Bureau, or the Commissioner of Insurance. Here is what the
Office of Patient Protection does:
(1) administer and enforce the
standards and procedures established by sections 13, 14, 15 and 16 of
chapter 176O, and to promulgate regulations therefor. Such regulations shall
protect the confidentiality of any information about a carrier or
utilization review organization, as defined in said chapter 176O, which, in
the opinion of the office, and in consultation with the division of
insurance, is proprietary in nature
(2) establish a site on the
internet and through other communication media in order to make managed care
information collected by the office readily accessible to consumers. The
internet site includes such information as a health plan report card
developed pursuant to MGL ch. 118G s. 24,, and compares by health insurer,
the percentage of premium dollars spent on health care services, versus
“over head.”
(3) assist consumers with
questions or concerns relating to managed care, including but not limited to
exercising the grievance and appeals rights established by sections 13 and
14, of said chapter 176O;
(4) monitor quality-related
health insurance plan information relating to managed care practices;
(5) regulate the establishment
and functions of review panels established by section 14 of chapter 176O;
(6) periodically advise the
commissioner, the managed care oversight board established by section 16D of
chapter 6A, the joint committee on health care and the joint committee on
insurance on actions, including legislation, which may improve the quality
of managed care health insurance plans. See MGL Ch 111 s. 217
It is time that Massachusetts
citizens involved in motor vehicle accidents have a similar “safety-net.”
The existing PIP utilization review system fails to provide the patient with
any information about how to assess whether the physician that is examining
him/her was selected, or the actual qualifications of that doctor. The
patient has no formal appeal process, and has no right to an external review
by an impartial physician. The Massachusetts motoring public has absolutely
no information on the utilization and quality care programs established by
automobile insurance companies. Such information, if made available to the
public, could dramatically impact which insurance company an insured
selects.
Utilization Review in Managed
Care and Personal Injury Protection Matters
Perhaps a comparison between the
utilization review systems in managed care and automobile insurers might
prove enlightening.
The utilization review process
for managed care is highly developed. Massachusetts law mandates that an
insurer or a utilization review carrier have a written plan, under the
supervision of a physician and staffed by appropriately trained and
qualified personnel. The law also states that a managed care insurer shall
include a documented process to (i) review and evaluate its effectiveness,
(ii) ensure the consistent application of utilization review criteria, and
(iii) ensure the timeliness of utilization review determinations. See MGL
ch. 176O s. 12(a)
Massachusetts automobile
insurers have: 1) no physician supervision; 2) no written utilization review
plan; 3) no process to review and evaluate effectiveness; 4) no tool to
ensure the consistent application of utilization review criteria.
ADVANTAGE: MANAGED CARE.
The aforementioned laws mandate
that Massachusetts managed care insurers or their utilization review
organization adopts utilization review criteria and conduct all utilization
review activities pursuant to said criteria. The criteria shall be, to the
maximum extent feasible, scientifically derived and evidence-based, and
developed with the input of participating physicians, consistent with the
development of medical necessity criteria pursuant to the provisions of
section 16. Utilization review criteria shall be applied consistently by a
carrier or a utilization review organization. See MGL ch. 176O(a)
Massachusetts automobile
insurers contract with unregulated entities that contract with physicians of
unknown quality to render medical decisions. Participating providers are not
involved in the creation of any criteria because no consistent criteria
exist.
ADVANTAGE: MANAGED CARE
Managed Care law states that
adverse determinations rendered by a program of utilization review, or other
denials of requests for health services, shall be made by a person licensed
in the appropriate specialty related to such health service and, where
applicable, by a provider in the same licensure category as the ordering
provider. See MGL ch. 176O(a)
In this area, MGL Ch. 34M, has
proven challenging because a Courts have been unable to reach consensus as
to whether it is proper for physicians licensed under different sections of
MGL ch. 112, are permitted to rendered decisions as to medical necessity,
reasonableness of care, and other such determinations.
ADVANTAGE: NEITHER. (As an
aside, why have both the managed care and automobile industries fought so
strongly against “actual peer review?” It would seem logical that a
practitioner similarly trained and educated would be most qualified to
question decisions made by a treating “physician.” Perhaps, MGL ch. 152, and
the Workers Compensation laws’ “same school” standards should be applied to
all)
In Managed care, a carrier or
utilization review organization makes an initial determination regarding a
proposed admission, procedure or service that requires such a determination
within two working days of obtaining all necessary information. In the case
of a determination to approve an admission, procedure or service, the
carrier or utilization review organization notifies the provider rendering
the service by telephone within 24 hours, and provides written or electronic
confirmation of the telephone notification to the insured and the provider
within two working days thereafter. In the case of an adverse determination,
the carrier or utilization review organization notifies the provider
rendering the service by telephone within 24 hours, and provides confirm
ation of the telephone notification to the insured and the provider within
one working day thereafter. See MGL ch. 176O(a)
In the automobile insurance
“system,” even when IME’s are performed, there can be a lapse of time
between examination and notification.. Perhaps even more concerning is that
insurers frequently feel compelled not to send the results of the IME to the
treating physician. Automobile insurers, oftentimes, will inappropriately
cite “confidentiality laws” as the reason for not doing the same. This
ill-advised refusal (since even HIPAA, the often misunderstood, Federal Law
governing “protected health information” permits disclosure for “payment,
treatment, and health care operations.”) has added to the adversarial
relationship between automobile insurers and health care providers because
the provider has no direct source to obtain information to refute
allegations made about his/her treatment, i.e., his or her practice.
Even when time limits are
expressly mandated in law, the Courts have been reluctant to enforce the
same. MGL ch. 90 s. 34A,M, Bohorquez v. Metropolitan Prop and Cas. Insr.
Co., 2000 Mass App Div 226 Armed with such decisions, it would appear that
insurers frequently proceed slowly in investigations. The cynic might
suggest that the process, at times taking as long as several months, and
years in the extreme, permits funds (and interests) to be retained in the
insurance company’s accounts longer then actually the should.
ADVANTAGE: MANAGED CARE
Managed care law mandates that a
written notification of an adverse determination include a substantive
clinical justification consistent with generally accepted principles of
professional medical practice, and shall, at a minimum: (1) identify the
specific information upon which the adverse determination was based; (2)
discuss the insured's presenting symptoms or condition, diagnosis and
treatment interventions and the specific reasons such medical evidence fails
to meet the relevant medical review criteria; (3) specify any alternative
treatment option offered by the carrier, if any; and (4) reference and
include applicable clinical practice guidelines and review criteria See MGL
ch 76O(a)
Personal Injury Protection (PIP)
patients and providers have never been afforded any “relevant medical review
criteria.” Patients and their treating providers, when faced with coverage
denials, often face completely different and seemingly arbitrary rulings by
insurance doctors. (As an example, one well-known, “peer reviewer” will
almost universally permit only “12 safe and effective chiropractic
treatments. Not once, to this author’s knowledge has that physician ever
supplied any supportive authority, i.e., evidenced-based studies to support
his “opinion.”) Simply put, there are no clinical practice guidelines or
review criteria.
ADVANTAGE: MANAGED CARE
The Massachusetts managed care
law affords consumers very real and substantive appeal rights. The managed
care law affords the provider to “step in” and pursue the case on behalf of
his/her patient. The managed care law affords a “reconsideration” process
that is not contingent upon use of the managed care entity’s own internal
grievance process, and is outside of the managed care entity’s control. See
MGL ch. 176O(a)(b).
Massachusetts automobile
insurers have no appeal process. A provider can always draft a “rebuttal”
to the insurer/reviewer; however, any treating provider will emphasis that
the response back is almost universal, (i.e., no change in original
decision) and frequently will not even address concerns highlighted by the
treating physician.
The lack of any internal review
process, or appeal process, leaves treating chiropractors with two options,:
1) accept the decision of the insurance doctor and not get paid for services
rendered; or 2) spend considerable time and resources fighting the insurer
in court. Judging by the extreme delays in securing even small claims
hearing dates, it would seem evident that the judiciary would be a strong
advocate for the creation of any external system of appeal for PIP medical
disputes.
ADVANTAGE: MANAGED CARE.
Managed care law requires that
insurance companies compile and submit pre-determined and universal data
sets. This law mandates that the data be sent to the Division of Health
Care Finance and Policy, and the Office of Patient Protection. As stated
above, the Massachusetts automobile insurer’s standards are seemingly more
stringent for reporting and monitoring vehicle damage appraisers than
medical quality.
ADVANTAGE: MANAGED CARE.
It Can Not Possibly Be This Bad…
Can it?
Unfortunately, the answer to
that question is in the affirmative. Treating chiropractors have actually
faced discipline when bringing complaints against IME doctors. In one case,
a chiropractor faced discipline when the treating chiropractor brought an
IME doctor to the attention of the Board who concluded that a patient was at
an end result. In that case, the treating chiropractor noted that the IME
report did not include documentation of all areas the patient complained of
injury. In that case, the insurance doctor, without fully assessing the
patient’s injury was able to determine that the patient was at an end
result. The licensing authority asked for all medical records. When
received, the Board thought it proper to not proceed against the IME doctor,
but then disciplined the treating doctor because the medical records
forwarded did not meet all the specific mandates of 233 CMR 4.02, 4.05.
The Board of Registration of
Chiropractors’ Mission states that it is established to “protect the
public.” Is it accomplishing that goal when it fails to discipline insurance
doctors? The effect that such conduct by the Board has on its Members is
“chilling.”
By acting in the manner
described above, the Board of Registration of Chiropractors has in fact
discovered a rather ingenious way to ignore the IME/RR problem in the state
The Board can simply dismiss such complaints without prejudice because
treating providers, scared of retaliation often refuse to provide the Board
copies of their medical records. The Board can “justify” its ruling because
it simply did not have all the information it “needed” to determine whether
the IME/RR doctor acted properly. Given the above, can one blame a
treating chiropractor for “cowering in fear” of the licensing authority?
It does not end here. More
egregious examples of the Board’s failures to correct
Disingenuous practices by
insurance IME/RR doctors include:
a) A chiropractic physician
completing inconsistent IME’s and Record Reviews. In this particular case,
the Board was presented with numerous examples of an IME doctor who
documented completing “provocative orthopedic maneuvers, range of motion
tests, palpation examination, assessing for myospasms, and documenting the
presence (or lack thereof) of subluxations.” However, when this very same
insurance chiropractor “reviewed” his peers’ medical records for automobile
insurance carriers; he was able to introduce, “evidenced-based” literature
discrediting each and every one of the above tests/findings. This conduct
is the height of hypocrisy. It would appear that this particu lar
chiropractor forgot the fact that each “claim” represents a patient. The
Board failed to do anything to correct this reprehensible conduct. The
Board of Registration of Chiropractors is not protecting the Massachusetts
citizenry. Docket No. CH-05-006, CH-05-007.
b) On or about June 24, 2006,
cases where numerous “canned text” IME reports were presented to the Board
of Registration of Chiropractors. These reports showed identical findings.
In the extreme, all tests and ranges of motion were exactly the same. Once
again, no action was taken against such devious conduct. Protecting the
public?
c) The Board was presented with
an example of a relationship between a Massachusetts automobile insurer, a
“peer review entity,” and a licensed, Massachusetts Chiropractor. The
information provided to the Board was also depicted in two different
district court law suits naming both the automobile insurer and the peer
review entity, (one of the two also named the chiropractor peer reviewer as
a defendant). The facts were as followed: The insurance company’s agent
forwards a letter to the provider stating that its computer system has
completed an assessment of the case. The insurer represents that its
advanced software program “has evolved to the point where it thinks like a
peer reviewer.” The total bill is then cut and the provider is told that
if it does not accept the reduced rate than the “offer” would be retracted
and the case referred to a peer reviewer. The original letters were even so
brazen to warn that if that occurred, it was “likely” that the peer reviewer
would cut even more money from the provider’s payment.
Boldly, some providers actually
challenged the findings of their “computer peer.” When this occurred, the
insurance company retracted the offer and forwarded the case to a
chiropractor for review. In most cases, the “independent peer review”
concluded that the treating chiropractor should be paid less. Unbeknownst
to many chiropractors, the “peer” who performed the record review was
actually the President and Owner of the software company that rendered the
“initial opinion!” CH-05-009.
Egregious? Apparently not. The
Board of Registration of Chiropractors took no action on this complaint.
The Division of Insurance did not see that it had any authority to assess
the situation. The “peer reviewer” in that case, you ask?
He has since been appointed by
the Board of Registration of Chiropractors as a “Compliance Monitor” for
chiropractors who have encountered disciplinary problems with the Board.
Protecting the Public?
When unchecked, the process
worsens. Chiropractors in the western part of the State have provided this
Office with IME’s performed on patients by a doctor not even licensed to
practice in the Commonwealth of Massachusetts. Unfortunately, but perhaps,
not surprisingly, the chiropractor who treated the patient does not wish to
bring the matter to the licensing authority’s attention. The famous British
historian of the late nineteenth and early twentieth centuries, Lord Acton
once said: “Power corrupts, and absolute power corrupts absolutely.”
Unfortunately, thanks in large part to Massachusetts automobile insurance
companies and their paid “experts,” these words resonate true in modern day
Massachusetts health care.
Are There Recourses Against Such
Conduct?
To date, at least two different
District Court Judges, have dismissed actions against IME/Record Review
physicians for their conduct in specific cases. At this time, it would
appear that the Courts are not eager to bring these deceptive insurance
doctors to justice. As stated above, the Massachusetts Board of Registration
of Chiropractors has done precious little to reel-in such outrageous
conduct.
If the licensing authority and
courts do not act, where else can the public turn to protect itself from
such aberrant conduct? One certainly could look towards the legislators;
however, these legislators recently drafted and Governor Romney signed into
law, MGL ch. 175 s. 113V. This law would seemingly provide almost universal
protection to those advancing the automobile insurance industry’s position
of denying care to automobile accident victims. MGL ch. 175 s. 113V (3)(f)
reads:
“… In the absence of fraud or
bad faith, an insurer or employee or agent thereof, member of said insurance
fraud bureau or an employee or an agent thereof, member of said medical
licensing boards or an employee or agent thereof, member of said Automobile
Insurers Bureau of Massachusetts or an employee or agent thereof, or other
person subject to this section, shall not be subject to criminal or civil
liability, and no civil cause of action of any nature shall arise against
such person for any information relating to suspected over-treatment or
fraudulent insurance transactions furnished to medical provider licensing
boards or the insurance fraud bureau, their agents and employees pursuant to
this section. Nothing herein is intended to abrogate or modify in any way
common law privilege of immunity heretofore enjoyed by any person.”
It would seem that neither the
Court, nor the licensing authorities, nor even the legislators have taken a
position to support the Massachusetts consumer. Considering the above stated
facts, does anyone truly believe that such
conduct deserves protection?
What Next?
MGL ch 175 s. 113V, mandates
that “medical licensing boards” receiving funds, as outlined by that law,
shall meet at least annually with the Automobile Insurers Bureau of
Massachusetts and that “where overutilization of practice or fraud is
suspected, the board shall conduct an investigation.” The law further
mandates that if overutilization of practice or professional misconduct
exists, disciplinary proceedings shall be initiated. Not only does the law
mandate action against fraudulent providers, it would seemingly mandate
discipline for “professional misconduct.” In essence, that law goes far
beyond legislating against “insurance fraud.”
Mandating such a meeting is not
necessarily bad, except, if one uses history as a predictor for the future.
Each year, the Commissioner of Insurance initiates a hearing process to
determine the following year’s automobile rates and criteria for
categorizing drivers. Representatives from the Automobile Insurer’s Bureau,
the Attorney General’s Office and the State Rating Board present markedly
different information. The striking thing about this entire process is that
these three entities all get their figures from the same source, the
aforementioned, Commonwealth Automobile Reinsurers, (CARS) It would seem
that each entity is able to take information and “slant it” to favor their
view point.
Given what has been permitted in
the past, who is to ensure that the CARS data presented by the AIB to the
licensing boards will be accurate? Who in that mandated process will
question the data? Who in that process will stand up and fight for the
unpaid providers? Who in that process will realize that the “utilization
review system” used to forge such “numbers” is broken? Who will finally
turn their eyes towards the insurance industry and their paid “experts” and
realize that tactics used are intimidating, coercive and misleading, who in
that mandated process will stand up for the patient?
Conclusion:
In May, 2001, the Board of
Registration of Chiropractors publicly stated its expectation that licensees
would follow appropriate protocols and criteria in all aspects of the
delivery of chiropractic services, including the performance of independent
medical examinations and record reviews. To this very date, the Board has
failed to foster, develop, or adopt any such criteria, or protocol. Over
the years, bolstered by the vacuum created by the Board’s failure to lead,
the automobile insurance industry, through their paid “experts” have taken
highly suspect steps to deny hundreds, if not thousands, if not tens of
thousands of cases, through unregulated, and highly suspect “utilization
review” tactics.
Recently, automobile insurers,
implemented specific standards to ensure that vehicle damage appraisers were
current, accurate and issuing legitimate findings. Placing the value of
metal higher than people, the automobile insurance industry has not
implemented a similar system for medical “experts” retained to examine and
render opinions on patients injured in motor vehicle accidents. This
failure, coupled with the Board’s failure to advance protocols or
guidelines, has ultimately led to some of the egregious claims review
processes described above.
The health care system has many
problems. In search for solutions and improvements, one must always remember
to focus on, and not forget, the most important element in health care, the
patient. I would suggest our State, led by the financing of the efforts of
the Massachusetts automobile insurance industry and their lobbyist, has lost
that focus.
Can the legislators and the
incoming administration implement a system to monitor the automobile
insurance industry and its paid medical/chiropractic experts? The answer
is, of course, yes. The more germane question is will the legislators and
the incoming administration implement new laws and regulations putting an
end to such improper conduct by insurers and its medical and chiropractic
experts?
The managed care system has
created a system of patient safeguards. Managed Care insurers have
universally retained Medical Directors to oversee medical coverage issues.
The Workers’ Compensation system (MGL ch. 152) uses “impartial” physicians,
from the “same school” to assist administrative judges in rendering
coverage/medical decisions. There are many steps that could be taken to
improve the unregulated Massachusetts automobile utilization review system.
As in many things in life, the first step, no matter how painful is actually
admitting that there is a problem.
On the way to my office this
morning, I noticed an old campaign sign by the side of the road, just before
an intersection. The intersection, not surprisingly, permits drivers to go
in a number of different directions. The sign had a very catchy, and
evidently, a well received slogan. It simply said: “Together, we can.”
Together, the road to an improved system of review for patient’s injured in
accidents can be taken. Together, we can, the time must be now.
Immunity For Whistle Blowers Affirmed in Absurd
Texas Criminal Trial.
February 11, 2010
It took a jury less than an hour to determine that a nurse who reportedly
filed a complaint against a Dr. Rolando G. Arafiles, to the Texas Medical
Board for: 1 ) performing a skin graft, without medical staff privileges;
2) suturing a rubber tip to a patient’s crushed finger, an unconventional
remedy that was flagged by the State as being inappropriate; and 3) emailing
patients about an herbal supplement that he sold “on the side,” was
protected as a “whistle-blower.”
The State Prosecutors advanced the case arguing that the nurse (Anne
Mitchell) had a personal vendetta against the physician, triggering her and
a fellow nurse (Vickilyn Galle), to file the Board of Medicine complaint.
The State failed to meet its burden of proving that Mitchell disseminated
confidential information for a nongovernmental purpose with the intent to
harm Dr. Arafiles.
The Prosecutor argued that the nurse had a history of making inflammatory statements
about the physician and intended to damage his reputation when she reported
him to the Texas Medical Board. The case seemingly got legs when the
physician contacted the local sheriff. The sheriff, a former patient of the
physician, whom the sheriff credits with saving his life after a heart
attack, obtained search warrants to seize the nurses work computers.
The Texas Board of Medicine sharply criticized the trial warning that the
case could have a significant chilling effect on reporting medical
malpractice, and adverse outcomes. Evidently, the hospital administrator
reported that Dr. Arafiles had been reprimanded on several occasions for
improprieties in writing prescriptions and performing surgery. Alarmingly,
the administrator also stated that it was hard to recruit physicians to
remote West Texas. In fact, the administrator admitted that he knew the
doctor already had a restriction on his license stemming from supervising a
weight-loss clinic when he recruited him.
While the felony-criminal case is now over, Mitchell’s attorney has a
pending action against the hospital, county, district attorneys, and the
sheriff. Perhaps, justice will win out after all.
Most States and the Federal Government have strong whistle-blower protection
designed to encourage, prevent retaliation, and in some cases potentially
even reward individuals for reporting fraud, abuse, and medical
misadventures.
ANOTHER REASON TO RETURN OVER PAYMENTS
February 11, 2010
In
2009, Congress enacted the Fraud Enforcement and Recovery Act (FERA). (Pub.
L. No. 111-21 ss. 4, 123 Stat. 1621-25The primary purpose of this law was to
reduce fraudulent activity in the financing market place; however, it has
also expanded the use of the Federal False Claims Act. (31 USC ss
3729-3733)
By
now, most healthcare providers realize that the Federal False Claims Act
makes it illegal for:
…(a)
Any person who (1) knowingly presents, or causes to be presented, to an
officer or employee of the United States Government or a member of the Armed
Forces of the United States a false or fraudulent claim for payment or
approval; (2) knowingly makes, uses, or causes to be made or used, a false
record or statement to get a false or fraudulent claim paid or approved by
the Government; (3) conspires to defraud the Government by getting a false
or fraudulent claim paid or approved by the Government;. . . or (7)
knowingly makes, uses, or causes to be made or used, a false record or
statement to conceal, avoid, or decrease an obligation to pay or transmit
money or property to the Government…. BUT….
In
Allison Engine Co. v.
U.S.
ex rel. Sanders
(128 S.Ct. 2123 – 2008) and in
United
State ex. Rel. Totten v. Bombardier Corp.
(380 F.3d 488) the Courts ruled that False Claim liability mandated the
presentment of a fraudulent, or false claim for payment directly to the
government. (ex. Medicare, Medicaid) However, FERA covers acts when a
person “has possession, custody or control of property or money used, or
to be used by the Government and knowingly delivers or causes to be
delivered, less than all of that money or property.” FERA continues…
“ knowingly conceals or knowingly and improperly avoids or decreases an
obligation to pay or transmit money or property to the government.” In
fact, Congress even goes so far as to include: “retention of any
overpayment” in its definition of “obligation.
What all this
means to providers who desire to comply fully with the law, is to monitor
bills and payments out of and into the practice/facility. Any health care
provider that identifies an overpayment has occurs, now has an additional
reason to do what is right, and promptly return the funds.
RECENT COMPLIANCE RELATED RULINGS:
In the Southern District of Florida, on February 4, 2010, Yasmanny
Benavides, the former owner of two Miami-area durable medical equipment (DME)
companies, was found guilty by a jury of defrauding the Medicare program out
of millions of dollars. According to the evidence presented at trial,
through one company Benavides caused, over a six-month period, the
submission of nearly $4.9 million in false claims to Medicare for DME items
and services that were never prescribed by physicians or provided as
claimed. Then, in the following six months, Benavides and a co-conspirator
caused the submission of false claims to Medicare in the amount of $14.5
million through a second DME company. Again, the claims were for DME items
and services that were not prescribed by a physician or provided as claimed
In another Miami-area case, that also involved a DME company and it s owner,
on February 2, 2010, Maria A. Aloise was convicted for submitting false
claims. Over one year, the DME company, filed approximately $1.4 million in
fraudulent claims to Medicare for various types of DME. It was determined
that Aloise forged prescriptions and certificates of medical necessity for
items such as oxygen concentrators, urinary leg bags, and equipment used to
treat other chronic illnesses
In Maryland, Joanne Radulski, was recently charged for causing the
submission of false claims to the state Medicaid program for psychotherapy
services that she was not licensed to perform. The indictment charged
Radulskis acts caused her employer to wrongly bill Medicare because she was
not licensed to provide said services. If convicted Radulski faces a
maximum sentence of five years’ imprisonment and a $100,000 fine if
convicted.
Closer to home, in New
Jersey, on January 27, 2010, Osvaldo Morales, Sr., the co-owner of a
now-defunct mental health clinic in Trenton, NJ, pled guilty for his role in
a conspiracy to fraudulently overbill Medicaid by more than $160,000.
Morales and co-conspirators admitted that, for almost two years, over nearly
a two-year period, they billed Medicaid for longer counseling sessions that
those that were actually provided, and for counseling services that were not
provided by a psychiatrist
On January 27, 2010,
Mark Darby, a resident of Bronx, NY, was sentenced to three years’
imprisonment on charges of billing the state Medicaid program for services
that he never provided. Darby formerly worked as a behavioral services
counselor for a clinic in New Jersey. According to plea documents, Darby
admitted that, over a six-month period, he submitted false timesheets
claiming over $4,000 in services to four Medicaid recipients, when, in fact
he had not provided such services. The sentencing judge also ordered Darby
to pay over $7,000 in fines and restitution, and barred him from
participating in the Medicaid program for a five-year period. Read Dow’s
For Skilled
Nursing Facilities: OIG Work
Plan Summary
Remember, President
Obama’s budget calls for increased money to identify, correct and
discipline false claims, and improper provider/facility conduct. The Feds
believe that they will make money by spending money in these areas.
As you know, each year
the Office of Inspector General publishes its Work Plan. Prudent Providers
use the same in organizing their finite compliance dollars to focus on the
areas highlighted in said plan. For instance, for this year, the OIG has
informed all that it plans to focus on:
1: Part B: Patient
Mental Health Needs: Payments to be reviewed for psychotherapy services
provided to patients during their Part A stays. Expect the OIG to look into
medical necessity, coding and documentation of said services. The Feds
believe that upwards of 30% of Part B outpatient claims for psychotherapy
could be denied.
2. Accuracy of Coding.
“Big shock here.” Expect the OIG to continue to assess RUG coding through
chart review. Does the record support the level of services provided to
your patients?
3. Employee Background
checks. This is always one area that makes one scratch their heads.
Periodically, one will see a news report where a SNF has run into problems
because of patient abuse, or neglect by a staff member with a criminal
record that would otherwise strongly suggest that the employee should not
have been working in those areas. There are a number of ways to check into
employees, providers and the like. If you are not tapped into the National
Practitioner Data Base, get there. For Nurses, check out
www.Nursys.com
4. Quality of Care
Standards: Expect the OIG to look into Plans of Care, and to be sure that
your facility is using the standardized RAI (Resident Assessment Instrument)
to help create the plan of care. I have heard of some SNFs auditing their
own charts and making sure that CNA services are actually consistent with
the plan. Be careful here, it is possible that some staff are not looking
into each patient’s care plan. The OIG expects that and will be looking!
5. Antipsychotic Drug
Use. The OIG is dead set serious in making sure that each of your
patients/ rights to be free from chemical restraints are met. Expect the
OIG to be sure that FDA required conditions are met. The OIG intends to
look into Part B, D reimbursements to help identify potential problems.
6. Emergency
Preparedness and Evacuations. The OIG wants to be sure that your Disaster
Plan is updated. What did your State Surveyor’s report suggest? Hint: If
deficiencies noted, ACT on them. While not necessarily a OIG mandate, how
is your facility compared to the Joint Commission’s mandates to ensure that
you have back up for physician services? Is your back up plan, often the
Medical Director, really working? How is that re-admission rate to the
local hospital? Every Health Care reform initiative that I have read
indicates that there is a plan to bundle costs here. In other words, the
Feds strongly believe that there is a ton of money to be saved by keeping
your patients in your facilities. Does your physician back up plan assure
timely response to a physician? Is that physician really committed to
providing medically necessary services, i.e., could that transfer out to the
acute care hospital be prevented? Various studies show that upwards of 20 –
40% of all SNF transfers to acute care hospitals were preventable.
7. Part B Services in
SNFs: Is there a disconnect? The OIG will look at Part B services billed
for residents whose stays are paid under Part B SNF benefits. The Feds are
concerned that Part B is being separately billed when consolidated Part A
services could.
8. Oversight of the
MDS: Accurate data is critical to health care reform, as one cannot address
complex problems without accurate data. The OIG will review CMS’ oversight
of the Minimum Data Set submitted by participating SNFs.
9. Quality of Care and
Preventable Patient Conditions: The OIG will look at Medicaid data to
determine substandard care and preventable bed sores and infections. This
is part of a more significant program linking quality to reimbursement.
Numerous cases already reveal that billing for poor quality care is akin to
submitting a false claim.
10. Enteral
Nutrition: It is expected that the OIG will review the medical necessity,
documentation and coding for tube feeding. The initial thrust will be a
subset of these patients, the Medicare patient that is not covered under
Part A.
11. Bad Debt Handling:
The OIG has expressed its intent to investigate SNFs recorded bad debt to
see if it may have been reimbursable.
12. Medicaid Incentive
Payments: The OIG will review the Medicaid incentive that were paid to SNFs
by states for quality of care performance measures. The OIG wants to be sure
that the incentives are valid, within program requirements and active.
Another link to quality of care, payment. and the submission of accurate
data. The Government evidently understands the importance of connecting
these three elements.
13. SNF Ownership:
The OIG will look into ownership of SNFs. The Feds believe that in some
cases new owners create complex organizations that virtually leave those
operating the SNFs without the resources needed. The OIG also wants to be
sure that owners to not reduce staffing to unsafe levels.
14. Clinical Social
Work Services: Another search into whether such services were billed
properly. More specifically, the OIG has expressed interests in assessing
whether such services billed under Part B, should have been under Part A.
15. Oversight of Poorly
Performing SNFs: Both CMS and State agencies will be assessed to ensure
that they are properly enforcing and improving services at SNFs that have
been flagged as “poor performers.” Again, this is another angle to assess
that funds spent are having the desired effect. In this case, the OIG will
investigate the effectiveness of CMS and State oversight Agencies. My
experience would tell me that those SNFs should expect increased scrutiny
from CMS and the State.
The above comments and material
is the sole opinion of Frank E. Biedak, Esq. Attorney Biedak is a health
law attorney, representing numerous Massachusetts health care providers.
For questions related to this instrument, you are encouraged to write to
Attorney Biedak, c/o of the Law Office of Frank E. Biedak, P.C., 57 Main
Street, Taunton, MA 02780
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