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)

In a late October 2008 tele-conference with state and insurance investigators an executive from a southern state chiropractic association with twenty years of chiropractic experience reported that most of the fraud committed by chiropractors is perpetrated by chiropractors employed in clinics owned and operated by non-chiropractors.


This executive went on to report that lay-owned clinics account for 80–90% of the chiropractic fraud problem, and that these non-chiropractors prey on chiropractors just out of school saddled with large student loan debt who will do whatever they are told.


Has this executive found the answer to successfully combating chiropractic fraud – prohibiting lay ownership of chiropractic practices?


Well, the answer is a resounding NO!


•The chiropractic regulatory board in this southern state indicates that there is no evidence to support the executive’s assertion that lay-owned chiropractic clinics account for most of the fraud committed by chiropractors.


•Numerous states do not allow for non-chiropractors to own chiropractic clinics and these states have found that they are not immune from chiropractic fraud.


•Chiropractors saddled with large student loan debt inclined to engage in unlawful activity to pay their bills are just not only employed in lay-owned clinics but are employed in clinics owned and operated by other chiropractors, as well as running their own practice.


In this southern state it is clear that the chiropractic association has an agenda to rid the state of competition posed by successful lay-owned chiropractic clinics, and appears their representatives will say anything to champion their cause.


I suspect that health care consumers in this southern state are far less concerned about who owns the chiropractic clinics then they are about quality of care issues brought on by chiropractors not being required to be on premises to supervise non-licensed staff administering health care services, and chiropractors delegating the administration of provider services to non-providers.

I read with interest the article in the September 2008 edition of The American Chiropractor titled “Deal with Investigators from a Position of Strength” written by a chiropractor in the Minneapolis-St Paul area reporting he offered the article as an illustration of how a strong and reasoned approach based on solid coding and documentation, coupled with a willingness to listen, can help doctors hold the line against contested claims and develop positive relational experiences with payer personnel.


The author's actions would do little to facilitate a position of strength, with either Farmers or any other insurance carrier. The article, in my opinion, fails to live up to its title. From my perspective, as an investigator, I would suggest the title, “How to Paint a Target on a Provider's Back.”


Any goodwill the author may have developed with the Farmers investigator was likely dissipated by his article. Rather than holding-the-line, the author proposed a compromising course of action:


1. He does not meet with investigators or lawyers! Knowing when and when not to meet with investigators and lawyers is critical determinant! Experience has shown that, under the right circumstances, providers who meet with claims-handlers and fraud-investigators to discuss genuine concerns regarding submitted claims are able to communicate more effectively regarding what the provider did, why the provider did it, etc. Such discussions frequently resolve any issues or misunderstandings regarding clinical and billing activity. Additionally, such meetings frequently facilitate payment. An across-the-board refusal to meet with investigators is a red-flag to investigators, suggesting that the provider is hiding something. Heightened suspicion may entice more in-depth and expanded investigations.


2. He does not use (non-weight bearing) x-rays taken by other health care providers! He may soon be faced with questions from investigators on this activity, including: Has he ever not taken x-rays and used existing x-rays for patients who had limited or no chiropractic coverage (e.g., Medicare, cash)? If so, why not in the instance investigated? Does he request and review the x-rays taken elsewhere immediately after an accident? If not, why not?


3. He purports to bill $200 per visit when performing therapy codes for around five minutes each, billing each service at $50 knowing they were billed in excessive amounts! Could this chiropractor be faced with future questions as to the clinical relevance of therapy services administered only for five minutes; is the billing of multiple units of time-based therapies not administered for 15 minutes consistent with correct coding conventions; should such activity have been billed by reporting only one unit of the primary therapy administered?


4. He documents the care being given to patients on the HCFA 1500 claim form! Health care services are not documented on claim forms. Further, the claim form is CMS 1500 not HCFA 1500 and has been for years. Could this simple misstep be used by investigators to infer that the provider does not have a strong understanding of the laws & rules?


5. He reports the fraud investigator from Farmers Insurance indicated that Farmers should send more of their clients to him! I suspect that Farmers Insurance, after their review of the article, will want to examine this claim very closely. In my many years of working around the Insurance and Health Care Professions, I have never heard of an insurance company investigator referring to an insured or a claimant as “client”.


Is the article analogous to bringing a knife to a gun-fight? The author indicates that he credits a consulting group with strengthening his practice and resolve in maintaining his position under challenge. It would be quite interesting to review the consultant’s response to the author's advice. Whether the consultant responds is irrelevant. The author's position is likely to be put to the test very soon!


Click the related link below to read the chiropractors article.

In response to my article "National Insurance Fraud Seminar Focuses On Chiropractic" published 11/17/03 in Dynamic Chiropractic, Paul Lee, P.T. aka quackbuster writes in his blog -


This article by a chiropractor is an unsurprising and typical example of how chiropractic and chiropractors ignore the elephant in their own living room. To everyone else, it's a "so what else is new" experience, when one reads about the attitudes of the insurance industry people. Of course they are skeptical about chiropractic. What else can one expect when the profession fails to police itself, and even teaches attitudes and practices that all others in the healthcare field consider unscientific and unethical?


The problem with what he writes is problematic on a number of levels:


1. I wrote the article and I am not a chiropractor, thus it is not a typical example of how chiropractic and chiropractors ignore the problem, or in his words "the elephant in their own living room".


2. It appears that he failed to read the article before placing it on his blog with his tainted remarks.


3. The purpose of my article was to point out the inaccuracies of information being taught to insurance investigators at the seminar.


Mr. Lee appears to be indicative of the problem that we all face today in health care - which is that investigators, and in this case, a self-proclaimed quackbuster, choose to ignore the available information, relevant evidence and facts prior to spewing their venom and hate.


Surely, if Mr. Lee had read the article he might have learned something.


Click on the related link below to read my article.

It’s no secret for today’s health care provider that investigators from regulatory boards, insurance companies and law enforcement agencies are on the prowl looking for providers who are not following the laws & rules – with a major focus on health care fraud!


And, these investigators, especially law enforcers, are particularly interested in finding health care providers engaged in health care fraud and establishing the evidence to prosecute providers who 1) billed for services not rendered; 2) billed for services that misrepresent the nature of the services provided; 3) billed for substandard and/or unnecessary services; and/or 4) billed for services that misrepresent the actual service provider.


Law enforcement agencies, even the Fed’s, have limited resources that prohibit them from investigating every provider on whom they receive information alleging health care fraud.


How do fraud investigators maximize their resources, and enhance probabilities for successful health care fraud prosecutions? They search for easy targets!


They don’t have to search far! What is an easy target you ask?



Click on related link below for the 9 Biggest Mistakes.