Submitted by: ACA Insurance and Managed Care Committee

The American Chiropractic Association is the preeminent professional organization representing doctors of chiropractic in the United States. We have an obligation to our membership and to the profession as a whole to comment on topics that support or harm the profession and the public it serves. The topic of Multi-Discipline Practices (MDP) is receiving increased attention in the media, as a quality option for treating patients.

The goal of this policy is to provide general education as opposed to specific legal or practice advice. It is incumbent upon each doctor of chiropractic to determine relevant state or federal laws, local board regulations and/or association recommendations that may be pre-emptive.

Background: The ACA fields an increasing volume of calls from doctors of chiropractic as to the advisability of entering into a MDP, and who also seek more detailed information on its acceptance, structure and operating philosophies. At the same time, ACA receives complaints from payers that certain arrangements appear to emphasize financial gain for providers rather than clinical appropriateness and the best interests of patients. With respect to providing education to both the chiropractic and insurance professions, ACA established a Fraud Sub-Committee under the Insurance and Managed Care Committee to research and provide commentary on this topic and others.

These recommendations are not all-inclusive, but are intended to encourage thoughtful consideration and examination.

ACA RECOMMENDATIONS

Scope of Practice: The ACA encourages state associations and licensing/examining boards to adopt rules, regulations and laws that define the scope of practice for doctors of chiropractic and specifically comment on new and emerging practice arrangements including but not limited to Multi-Discipline Practices. Attention to the provision of ethical care and accepted treatment standards is important, as is identifying potentially illegal or unethical practice(s) that may constitute a danger to the health, safety and welfare of the public or that violate state statute. The Arizona Board of Chiropractic Examiners under section ARS 32-924(15) and a Chiropractic Practice Alert issued by the New York State Education Department Office of Professions http://www.op.nysed.gov/chiroalertmulti.htm may provide a model for discussion and action in other states.

It is also recommended doctors of chiropractic maintain a current license in good standing in the state in which they practice, and comply with the full letter and intent of that state’s chiropractic scope of practice statute. All care provided by a doctor of chiropractic must fall under the applicable scope of practice regardless of who recommends or orders it.

Seek Expert Opinion and Counsel:

To assist associations, boards and individual providers, ACA may be contacted for information on the National Association of Chiropractic Attorneys (NACA) as one source of possible legal counsel.

There are many potentially complex legal issues that one should keep in mind before getting involved in a Multi-Discipline Practice. You may consider seeking legal advice on specific issues, including the following:

• All licensed healthcare providers are held to administrative, civil and criminal law considerations. In addition, state and federal law impacts compliance, formation, ownership structure and operational issues and may present certain complexities requiring the advice of an attorney specializing in professional limited liability (PLLC), Partnership (PLLP) and/or other arrangements.
• A federal health care criminal statute, along with related state health fraud statutes, criminalize any “scheme or artifice” intended to obtain reimbursement from any healthcare plan or entity under false pretenses. Federal mail fraud concerns are included in this level of analysis, among other potential violations. (18 u.s.c. 1341, 1343)
• Another issue deals with legal concerns regarding federal and state anti-kickback laws. These are enforced for the most part by civil versus criminal sanctions. This requires a comprehensive review and careful consideration of “safe harbor” provisions of the Civil Monetary Penalty Act (42 u.s.c. 1320a-7a).
• Legal prohibitions against self-referral for some healthcare services, or “Stark Laws” (42 u.s.c. 1395 nn) are enforced through civil sanctions and relate to the provision of certain designated health care services. Mini-Stark laws may also exist at the state level and should be considered in any MDP analysis.
• The Internal Revenue Service (IRS) may also have specific compliance standards in the reporting of MDP revenue, investment gains and/or other financial situations.

Another source of advice may be the local or regional FBI (add website), or your state Attorney General’s office as to types of activities in the health care industry that may prompt investigation or indictment. Currently we are not aware of any national MDP directives or policies employed by the FBI, but we understand that initiatives exist in certain states.

The Department of Health and Human Services Office of Inspector General ‘Compliance Program for Individual and Small Group Physician Practices’ (65 Fed. Reg. 59434, Oct. 5, 2000) found at http://oig.hhs.gov/authorities/docs/physician.pdfis also another source to consult, and your malpractice carrier may also have additional recommendations based on risk management protocols and actual claim experience.

Other Considerations and Questions to Answer

• Hiring Licensed and Unlicensed Providers/Professionals: Are you comfortable with providing oversight and supervision for licensed and unlicensed providers/professionals for services that are not included within the scope of practice for a doctor of chiropractic? Is this allowable by state law? Remember you are responsible for all acts of licensed and unlicensed employees and staff in your employ.
• Patient Supervision: Are you available and on-site with sufficient frequency and predictability to oversee patient care provided by all licensed and unlicensed employees and staff? Is continuity of patient care a major priority? In the event of an emergency, do you have sufficient oversight to direct employees and staff to appropriate action that protects patient safety and the best possible clinical outcome? Are there written compliance procedures in place and are they reviewed periodically for safety and confidentiality compliance? Remember that absentee ownership may create unnecessary risk and liability.
• Patient Referrals: If a patient is referred to you within a MDP owned by a physician other than a doctor of chiropractic are there delineated criteria for referring patients that may benefit from your specialized care?
• Is the referring physician or provider familiar with chiropractic principles of care and fluent in your evaluation and diagnosis protocols, treatment and techniques, therapies or related services? Is the referred patient aware of the same principles and are they educated as to the expected results?
• Is there an expected clinical outcome that is anticipated by making a referral either within or outside the MDP? Is there a plan of care and an expected time frame for results recorded and reported between providers and the patient?
• Is there an adequate level of clinical documentation to support the referral and all care and treatment? What kind of written communication will the referring provider expect of the doctor of chiropractic, and do the DC’s clinical records provide enough objective evidence to continue care?
• Have steps been taken to steer clear of “automatic” referrals that lack clear and convincing evidence of the need for specialized care?
• Coding and Billing: Are all codes and billing procedures consistent with CPT definitions and policies, and do they not duplicate services the patient received prior to or during concurrent care at the MDP facility?
• Incident-to services: Incident to billing procedures can vary from carrier to carrier, and may be state specific. Always check with the particular plan to assess whether billing a chiropractic service as “incident to” another physician’s service is authorized.
  Are evaluation and management services and/or consultation services appropriate and properly documented? Are the billed procedures separately identifiable? Do these services require significant patient time, assessment, cognitive skills and patient care management over and above existing recorded information on the patient? Under what situation does a patient require complex and/or multiple complex assessments by the same or different provider in the MDP facility?
• Are your services billed under your tax ID number and not under a higher level or specialty ID number?
• Are your services billed under your tax ID number, and not under the ID number of a higher-level specialty?
• Remember, coding abuse-especially for frequently performed E/M services or for frequently billed complex services that are not clinically supported-is a red flag for investigation. Financial recovery, penalties and even license sanctioning can be an outcome of intentional coding irregularities. An argument for determination of intentional abuse is easily made when claims data shows an established business pattern.

CONCLUSION

The above is a sampling of important considerations, and is provided to help promote the creation of innovative patient-focused healthcare entities that are lawful and ethical. ACA provides this education to help prevent undesirable situations that could inadvertently occur when there is inadequate analysis and preparation for new and emerging business collab