May a doctor delegate the administration of therapeutic procedures to unlicensed staff and bill payers as if they actually administered them?


A number of boards opine that therapeutic procedures can be delegated to unlicensed staff. Some ‘certify’ chiropractic assistants who complete (minimal) training programs, and these boards purport that the certification is similar to those of boards for other disciplines (i.e., physician assistants and physical therapy assistants). Is such a comparison analogous to comparing ‘apples to oranges’ with the stark differences between physician assistants, physical therapy assistants and chiropractic assistants, particularly, on requisite clinical education, training and experience?


Scott Whitehead, D.C., opining in 2007 at the request of his State Association writes: “As a doctor you can delegate therapeutic procedures to whomever you wish to perform those services. You simply must be in the building at the time services are rendered to ‘supervise’. You do not have to perform the treatment yourself, nor do you have to stand over them and watch…. However, as far as I know, no insurance company has any policy in place to prohibit you from delegating to staff. As far as statute goes in Texas, if an insurance company did write that into their policy, we would have to go to the [Texas Department of Insurance] with [a] complaint. The P.T.’s (sic) would love to have those rules in place as well.”


- Dr. Whitehead’s position is reflective of the position many providers have taken, but that position is violative of applicable laws, rules, and regulations. Doctors may delegate therapeutic procedures only to those individuals who are qualified and properly trained, not to whomever they wish.


- It is true, as Dr. Whitehead proclaims, insurers (e.g., payors) don’t have policies to prohibit doctors from delegating to staff; however, they do have policies that limit and/or prohibit payment of provider services administered by non-providers (e.g. unlicensed staff).


- To add to the confusion, contrary to Dr. Whitehead’s contention, the board jurisdiction in which his opinion was provided does not require chiropractors to be on premises to supervise services administered by unlicensed staff.


A chiropractic regulatory board, in 2003, provided the following in response to my inquiry on behalf of my clients in that state: “Rule … expresses the Board’s policy on the issue of delegation - designed to give its licensees a threshold standard which they must adhere to in their practice or be subject to disciplinary action if in delegating a procedure the standard of care is not met. That determination for disciplinary purposes is determined on a case-by-case basis. The Board expects its licensees to be properly trained and knowledgeable in chiropractic services. Each licensee is expected to determine for his or her own practice the specific procedures that are appropriate for delegation under their license and Board rules and whether his or her employees are properly trained for such delegation. Likewise, a licensee must make his or her own determinations about adequate supervision under the circumstances. The Board does not set training standards for chiropractic assistants or dictate detailed protocols that licensees must follow. Neither does the Board determine how a chiropractor should bill third party payers for therapeutic procedures…”


- The failure to adequately address the issue of delegation poses great harm to licensees to whom the above-referenced Board owes a fiduciary duty. The Board fails to identify what constitutes a qualified and properly trained individual to whom such delegation may be made. Make no mistake, unless an applicable state regulatory entity (e.g., Board) either licenses or otherwise certifies the basic requirements of those individuals to whom the services are delegated, that regulatory entity has no authority to determine whether that individual is qualified and properly trained. That regulatory entity’s authority begins and ends with those over whom it may exercise that authority (e.g., licensees).


Samuel Collins, in his article “Denial for Services Done by Staff“ (Dynamic Chiropractic, 12/2/08), reports it is becoming more common for carriers to ask chiropractors who administered the (therapeutic procedures) with an apparent trend for carriers to not pay for services done by unlicensed or noncertified staff. Further, he indicates it is a tricky legal question of whether an insurer has a right to exclude payment for services done by unlicensed support staff, and that the chiropractic profession will have to battle this legally and force payment per state regulations or implement certification of chiropractic assistants.


- Collins brings out some thought-provoking points in his article. The apparent trend he notes of carriers not paying for services performed by unlicensed staff might be more accurately identified as a strong indicator that carriers are becoming more diligent in their efforts to evaluate health care claims so that only proper claims are paid. Additionally, his claim that tricky legal questions are involved to determine if a payor can refuse to pay for provider services administered by non-providers is just not correct! Payors set the standards for reimbursement and doctors must follow them when seeking the payors money!


In 2002, following a joint investigation by the Federal Bureau of Investigation, Internal Revenue Service and the Texas Workers’ Compensation Commission, John Schmidt, D.C. entered a guilty plea on tax evasion and admitted to fraudulently billing for supervision of work-hardening services.


The government asserted in their investigation and subsequent prosecution that the approved codes for medical procedures require the chiropractor or a licensed therapist to supervise work hardening. Prior to sentencing the defense asked the Court to withdraw the guilty plea, and brought in a doctor from a local chiropractic college who testified as an expert witness. Schmidt’s expert witness testified that Schmidt could lawfully delegate supervision of work hardening services to unlicensed individuals under the Texas Board of Chiropractic Examiners (“TBCE”) rules, stating that TBCE’s rules take precedence over the CPT codes.


The judge asked if the expert’s position justified health care fraud by chiropractors as a group. The defense argued that Schmidt was obligated to practice under TBCE’s rules. The judge then asked, even if in doing so he commits fraud? The defense responded that the comments appeared to accuse all chiropractors of fraud. The judge replied he did not say all chiropractors commit fraud, but understood the expert, in effect, to advocate that chiropractors may engage in activity that is at variance with the CPT codes, as long as the Chiropractic profession, as a group, approved of such activity.


The defense asked the judge to recuse himself, arguing that the Court had a bias against chiropractors in general, and Schmidt in particular. The judge denied the defense motion, stating the Court had merely expressed its surprise at the seemingly outrageous legal position advocated by the defendant during the course of the hearing. Schmidt was sentenced to three years in prison, ordered to pay a $30,000 fine, and $72,145 in restitution. (“Texas Chiropractor Draws Judge’s Ire, Three Years in Prison,” Fort Worth Star-Telegram, 8/16/02)

An attorney writing in a chiropractic periodical reported hearing a scary story from a chiropractor that goes: Chiropractor hired a consultant to conduct an audit of his practice, and on completion of the audit the consultant demanded a low five-figure payment from the chiropractor to ensure compliance and implementation of recommendations. The chiropractor declined to pay for the extended services and several months later the chiropractor was contacted by the government who were focusing on the same problems highlighted by the consultant.


The problem with this story is that no substance is provided to allow readers to evaluate the validity of the events claimed. Another BIG PROBLEM is that the attorney fails to mention that frequently providers may seek out audit and compliance services because they already suspect they are being investigated! However, in reading the attorney’s entire article its purpose is clear – health care providers should exercise appropriate due care prior to, during and after their decision to audit their health care practices!


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A doctor called and asked: Is it true that providers would get in trouble for not purchasing services from a seminar speaker should federal investigators look at them. The caller added that the speaker told the seminar audience he provides the list of seminar attendees to the FBI and that if one of the attendees was investigated by the Fed's it would be used against them if they were at his seminar but did not purchase his services.


I have provided training to health care providers in excess of 10 years and I have never given or been asked by law enforcers for a list of attendees. But this speaker could in fact be giving his attendee list to the FBI - I don't know. And, for more than twenty years I have been in investigations and I could see, with my investigator hat on, how law enforcers could use this info for intelligence purposes but the info, in of itself, would be of minimal value unless there were suspicions that a doctor having attended the seminar was engaged in misconduct, and then it could be used in developed fraud cases with established evidence to support that violations of law were done purposefully - where the list could be used to show the provider knew what they were doing was wrong and that they purposefully engaged in criminal conduct.

I was recently told by a compliance client that they had previously used another consultant for compliance who reported that by placing his (consultant's) compliance certificate on the wall in plain view for those coming into the clinic that if an investigator comes in and sees the certificate they will immediately turn around a leave because they will know the clinic is in compliance once they see his certificate.


Over the years I have heard of and seen people who wield alot of power, but I have never heard of anyone in the compliance arena having that much power!


And, I thought I had it going on.

Yesterday I received via email a compliance test in an advertisement. I took the test, which by the way is an interesting tool to facilitate interest in compliance. Anyway, the test consisted of a number of questions with multiple choice answers that were immediately scored by clicking the submit answer icon to tell you if you were correct or incorrect. I noted in taking the test that a number of the graded correct responses may not, in my opinon, be the best choice as the correct answer from a compliance perspective.


For example, one of the questions asked was what code would you (the doctor) bill on the first visit if a patient was referred by another healthcare specialist? The correct answer per the test was 99243, with the other choices being 99233, 99203, and 99213. The correct answer is "IT DEPENDS"! If the healthcare specialist who referred was not a physician would it still be a 99243? What if the components for this level of consult were not met would it still be a 99243? What if the physician just referred the patient for chiropractic care would it still be a consult at any level...