(Some “Legal” Things to Think About)
By: Larry J. Laurent, Attorney at Law
1. Establish Your Reputation as Honest and Hard Working Early on. Be ethical, thorough, and professional in all aspects of your practice. Take no nonsense from anyone.
2. Types of Practice:
a. Major-medical/health insurance:
You must make the HMO/PPO happy. Good source of referrals, Competition is minimal. Must have base criteria to qualify for admission. Dollar value of fees are usually discounted.
Clean practice. No insurance headaches. Takes right kind of doctor to do it. Number of patients are limited. Patients pay for care and submit their own insurance claims. Be very careful to avoid the occurrence of a dual fee schedule — you cannot charge $ X dollars for cash patients and $ X + Y dollars for insurance/PI patients, despite the fact that your overhead is increased on insurance patients. Dual fee schedules are in violation of the Board of Chiropractic Examiner’s Rules.
c. Personal Injury:
i. Automobile Accidents.
ii. Slip and Fall
(A) Marketing is key – don’t be afraid, everybody else is doing it! Targeted telemarketing is legal once again due to the United States Court of Appeals decision in Mark Bailey, et al. v. Dan Morales.
(B) Telemarketing efforts
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must comply with state open records laws and Transportation Code provisions and must avoid “kick-back” arrangements in violation of the Texas Barratry and Illegal Remuneration Laws.
(C) Claims Processing – Will be dealing with insurance companies, utilization review of bills. Proper CPT coding and documentation is very important here.
(D) Utilization review of claims – arbitrary reductions in amount of bills. Be aware that the Texas Insurance Code does not permit Utilization Review of PIP benefit claims (Tex. Ins. Code Ann., §5.06-3(d)(3)) — however, insurance carriers generally disregard this fact. Bear in mind that insurer’s usually pay no heed to defensive responses. Be aggressive in your pursuit of insurance payments, especially PIP payments.
(E) Referrals – Essential to developing successful PI practice. Referrals are not against the law. You can refer patients to attorneys and can accept referrals of patients from attorneys – you cannot pay for referrals. Be careful about charging high narrative fees or entering into other arrangements which could be construed to be “kick-backs” for referrals.
Slip and Fall Cases:
Not popular with attorneys. Difficult to get insurer to accept liability. Quite often get self-insured entities. Owner of premises must have known about the existence of the water, grape, etc. on the floor and disregarded his opportunity to clean it up. Hard test to overcome.
d. Worker Compensation: On the job injuries
i. Primary care – basic chiropractic treatment, Secondary care – extended rehab, includes work hardening and work conditioning programs;
ii. Treating Doctor status;
iii. Must adhere to TWCC CPT coding, pricing of services, treatment Guidelines, including preauthorization;
iv. Billing practices are scrutinized;
v. Formal “appeal” process for claims disputes, compliance and practices issues;
vi. Filing of medical fee disputes must be done properly, otherwise you run the risk of having the Commission “sit” on your claim for years.
vii. Be aware TWCC billing guidelines contained at §134.801. Providers must bill for services they render. This applies to diagnostic testing companies and other entities who may perform services for your patient.
i. Federal program
ii. Must adhere to pricing and billing criteria
iii. Regulations apply strict on-site supervisory obligations
iv. Starke laws apply barring self-referral
3. Marketing: You, too, can market your professional services.
a. Types of Marketing Programs:
i. Advertising: Television, Radio, Mailouts, Telemarketing re: auto accident victims), Telephone directories, Booths in malls, Volunteer for athletic events. Be Careful about entering into “deals” with attorneys and other chiropractors/Physical therapists which would involve your contribution to a joint marketing fund for use by the other entity. You can do this in some instances but you must be very careful about potential violations of the Illegal Remuneration laws.
ii. Patient Referral Programs: Can do this. You cannot enter into any relationship which would call for a guaranteed, or quid pro quo, number of patient referrals.
iii. Direct Solicitations: Telemarketing, direct mail outs. You can do targeted telemarketing (accident victims, medicare patients, etc.).
iv. Law firm/attorney referrals. It is ok to refer patients to a specific attorney; it is not ok to refer patients to a specific attorney (or any attorney) with the expectation of any form of “kick-back”.
v. Chiropractors, can clearly retain marketing firms to market and solicit their services to the general public but only when it is handled on a non-patient/client specific basis. That is, a number of chiropractors can join in a joint marketing program with patient referrals based upon the geographic pattern of patient demographics. Or, a chiropractor can retain a marketing firm to market his/her services exclusively to attorneys, through media advertisements or otherwise, but only without guarantees of specific numbers of patient referrals. Plainly stated – doctors cannot pay per head for the referral of patients. The success of failure of the overall marketing enterprise can be the only determining factor in prolonging the continuation of the marketing relationship – has the marketing relationship been suitably successful based upon the doctor’s individual judgment.
4. Relationships With Law Offices:
a. Referrals by firms and to firms are not prohibited
i. Avoid anti-kick back traps (no quid pro quo requirements – Barratry and Illegal Remuneration Statutes)
ii. Try to work within the referring attorney’s client’s availability
iii. Do not require an LOP before the first visit – but do get one soon!
iv. Keep the referring attorney informed about status of patient’s treatment progress – but don’t let attorney dictate the nature of your treatment or its duration.
v. Notify the attorney if/when you feel patient requires serious diagnostic testing, surgery, referral to specialist.
vi. Fully document your files.
vii. Do not charge excessive narrative fees – they may be construed as means of obtaining kick-back.
viii. If your patients’ cases turns into a lawsuit expect to have your files subpoenaed. Make sure that the attorney handling your patient’s case works with you in defending you if you are deposed.
b. Letters of Protection
Get one, but make sure it will be legally binding. Many LOPs you will get these days are not worth the paper they’re printed on. To be enforceable, an LOP must expressly provide that the attorney agrees to protect your financial interest, withhold that sum of money from the final settlement of your patient’s case and remit payment to you upon settlement of the case in the amount of your outstanding bill. With this type of LOP and an assignment of benefits signed by your patient you can file a grievance against an attorney who stiffs you with the State Bar of Texas.
i. When an attorney is not willing to give an LOP or provides an LOP which hedges his/her obligations to pay your bill, be careful, chances are he/she will not work with you in recovering your bill.
ii. When attorney drops your patient’s case, the LOP is no longer any good. You need a new one from new attorney.
iii. Be careful about attorneys taking your patient’s PIP payments. When an attorney requests his/her name be put on PIP check, insurers will generally send the PIP payment to the attorney.
iv. Insufficient LOPs leave you with no recourse against the attorney.
c. Provide Prompt and Responsive Services to Patient.
i. Assist Patient in filing insurance claims, especially PIP claims.
ii. Make sure you find out if patient has PIP or Med-Pay insurance coverage.
iii. PIP insurance coverage is not subrogatable. PIP coverage is a contract between patient and the insurer. Insurer cannot raise patient’s rate based upon PIP claims.
iv. Med-Pay coverage is subrogatable. Patient may have to repay med- payments upon final settlement of PI claim.
v. Uninsured Motorist Coverage: Is a claim against the patient’s own insurance carrier. Patient must have obtained a description of the vehicle which caused the accident or must have had actual contact with the other vehicle. UM coverage and PIP coverage can be made for the same accident but the PIP coverage is subrogatable in UM claims.
vi. If you are in area with high Hispanic/Asian population it is beneficial to have bi-lingual staff.
5. Properly Document Your Patient Files:
a. Do maintain thorough medical records. Do not change medical records once they have been completed.
b. Do not maintain dual records.
c. Make sure that your records spell out exactly what your diagnosis, prognosis and course of treatment is. Do not short cut your explanation of your diagnosis, prognosis and course of treatment. Write in language we can understand.
d. Make sure that your bills correlate with your medical records and your CPT codes.
e. If treating multiple parties in same accident, do not “Xerox” the same treatment notes for each patient. Make sure that each patient’s medical records reflect unique findings as to that patient. No two patient treatments will be identical. Each patient should be unique as to himself/herself.
f. Do not get into a habit of using the same billing protocols, CPT codes, medical records, etc. for every “accident patient”, “comp patient”, etc.
6. Avoid Insurance Fraud:
‘TEXAS PENAL CODE, §35.03 (Insurance Fraud):
(a) A person commits an offense if, with intent to defraud or deceive an insurer, the person causes to be prepared or presents to an insurer in support of a claim for payment under a health or property and casualty insurance policy a statement that the person knows contains false or misleading information concerning a matter that is material to the claim, and the matter affects a person’s right to a payment or the amount of payment to which a person is entitled.
(b) A person commits an offense if, with intent to defraud or deceive an insurer, the person solicits, offers, pays, or receives a benefit in connection with the furnishing of health care goods or services for which a claim for payment is submitted under a health or property and casualty insurance policy.
. . . . .
(d) An offense under this section is: . . . (4) a [ ] jail felony if the value of the claim is $1,5000 or more . . . . .
a. Maintain Proper Documentation for Services Billed.
b. Do not bill for services which are not rendered.
c. Do not record medical records reflecting services not performed.
d. Have your patient sign and date each day’s medical record (this will greatly enhance your ability to recover payment from your patient if you are required to pursue legal action).
e. Keep accurate patient sign-in records.
f. Avoid obvious over treatment.
7. Avoid Illegal Remuneration:
The Texas Health Professionals Council Act, Tex. Occupations Code, §102.001, et seq. (Vernon 1999) (the Texas “Illegal Remuneration” Act) provides:
A person commits an offense if the person knowingly offers to pay or agrees to accept, directly or indirectly, overtly or covertly any remuneration in cash or in kind to or from another for securing or soliciting a patient or patronage for or from a person licensed, certified or registered by a state health care regulatory agency.
This law prohibits any payment made by a health care provider, or a health care provider’s agent for the purpose of securing or soliciting the referral of patients. It also prohibits the receipt of any payment by a health care provider for the referral of a patient or patronage. Violations of the above statute carry both criminal and civil sanctions.
8. Other Dangerous Things to Avoid:
a. You don’t ever get something for nothing!!!
i. Be careful of diagnostic testing schemes offering billing discounts to you, while letting you bill for the full cost of the test.
ii. If you bill for a service or test performed it is presumed by the Texas Board of Chiropractic Examiners that you are properly trained to perform such service or test.
b. When treating patients of the opposite sex keep the door open and have one of your CAs present.
c. Be careful with the use of treatment equipment which might be misconstrued (e.g. percussers/vibrators, etc.)
d. Don’t discuss things with your patients which may be misconstrued (e.g. “I like you”, “I believe in Voodoo, do you?”, etc.)
e. If a patient requests copies of their medical records, give them to them.
You are required by TBCE rule to provide your patient with a statement of the nature of services rendered and the full amount of the patient’s bill. Give it to the patient if requested. There are other ways to protect your financial interests.
f. Avoid Dual Fee Schedules.
It is permissible to offer a reduced
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fee to members of an identifiable group (e.g. a corporation’s employees, employees of a trade association, etc., so long as you provide the same reduced fee to all members of the group). You cannot charge one fee for insurance cases (e.g. PI) and a lower fee to cash patients – despite the obvious fact that your cash patients require lower overhead (no “cash discounts”)!
g. Keep your license current.
No brainer here, however, if your licensure fee is over one (1) year past due you are out of luck!!!
h. Be careful about disclosing confidential patient information. The federal Health Insurance Portablitiy Accountability Act (“HIPAA”) imposes every stringent guidelines and penalties on health care providers who disclose confidential patient information without consent.
9. PIP Claims
a. Be aware that Article 5.06-3(b) of the Texas Insurance Code Ann., (Vernon 1998) expressly provides that PIP coverage requires an insurer make payment to an insured of all reasonable expenses arising from an accident. . . for necessary medical , etc. services. Article 5.06-3(d) provides that all payments due under Article 5.06-3 are to be paid within thirty (30) days of the date upon which proof of treatment is received by the insurer.
b. If an insurer reduces a patient’s bill through UR on the basis of overtreatment/medical necessity the patient may have a valid claim against the insurer under Article 5.06-3(b) of the Texas Insurance Code and the Texas Deceptive Trade Practices Act.
10. Incorporate or Otherwise Formally Organize Your Practice – Don’t be penny wise and pound foolish!!
a. Spend what it takes to set up a corporation, limited liability company or a limited liability partnership. Anyone who provides professional services should practice under a limited liability format (corporation, limited liability company or limited liability partnership). Hire an attorney who knows what he/she is doing, as structuring business entities for health care providers are different and must adhere to specific rules, hoops and hurdles.
b. The “corporate” nature of your practice will effectively shield you from personal liability — above and beyond professional liability insurance.
c. Make sure that you adhere to proper corporate formalities; never personally guarantee a corporate debt or use corporate funds to pay personal debts. Document personal loans with your “corporate” entity in the form of a promissory note.