Part III of a multi-part series (part I, part II) that continues to cover the top ten violations of law against physical therapists that are enforced by state licensure boards. As I wrote in my prior published columns, we will cover three violations at a time in three subsequent articles with a tenth violation to round out all ten in total.
Standard of Care
When providing medical care, the physical therapist must exercise the same degree of skill expected of a reasonably competent physical therapist acting under the same or similar circumstances. This is not a “superman or superwoman” standard, but what the “reasonably competent” practitioner would do. After all, this is a health care provider who has the requisite education, training, and experience to practice their profession – they went to school for years to do this!
In my opinion, this is related to an academic standard such as a graduate physical therapy student in a practicum or internship. This was a great question to ask an expert witness on the stand at a disciplinary hearing against the physical therapist: “If you were their physical therapy professor and they were your student, would this procedure get a passing grade?” Having the expert witness point out how and in what ways the “student” would “fail” was powerful testimony. Billing for incompetent care is a kind of fraud on the patient and the payor.
These are violations of the practice act itself, which sets the standards for the administration and business of the physical therapist. These include: not complying with regulations for clinical documentation; unlicensed practice, and; advertising. As to documentation, state practice acts often have standards for the substantive areas to be covered in an initial assessment, content and frequency of regular reevaluations, progress notes, and documentation of appropriate discharge. Medical care can be excellent, but unless the documentation is there, treatment progress will not be documented, and billing will not be justified.
Emily Suttor, DPT, PT, a physical therapist and clinic director in Frankfort, Kentucky, states:
It can be very easy to get caught up in the moment and the hecticness of the day and make unintentional documentation mistakes, which can be very costly. It’s always worth the time to double-check the progress note and treatment details to minimize error as much as possible.
Practicing without a license can be common, too. Ever look at your driver’s license only to realize it expired last month? Same with physical therapists, who must renew on a date certain. Again, while health care can be excellent, it’s fraud to practice on an expired license like a driver can be ticketed for driving on an expired license.
Advertising can get a practitioner in trouble. Advertising “free examinations” but then billing the patient’s insurance company is a misrepresentation that may be “false, misleading, or deceptive” or may simply be “advertising services in a false or misleading manner.”
These three board-centered violations – documentation, unlicensed practice, and advertising – are often unknown to the patient, but are very ripe for being reported by disgruntled employees (“her license expired last month!”) and competitors down the street (“you can’t put ‘free examinations’ in your newspaper ad! It’s not free to the insurance company.”).
This can be by itself or with documentation and standard of care violations. Billing fraud is based on the legal standard of “engaging in fraud or material deception in the delivery of professional services.” While “fraud” is an intentional and knowing standard that is more difficult to establish, mere “material deception” is easier to prove. Billing 70 minutes for 60 minutes of treatment may simply be sloppy billing practice and not intentional fraud, but “material deception” fits when one bills for more time than provided.
Dr. Suttor further states:
Part of the billing challenge is staying current with the changes in various insurance company billing rules. Medicare has some different standards than private insurance, which can be different from other, government payment sources, such as Tri-Care.
Even different policies under the same insurance company can have different treatment options – dry needling is a perfect example. In addition, insurance companies change what is covered each year, which adds to the challenge of accurate billing.
Physical therapists and insurance companies need to know how substandard care, board-centered violations, and billing fraud can be examples of patient fraud and endanger one’s license to practice. We will look at more violations of law against physical therapists. Stay tuned to these future articles in this column.
Mark R. Brengelman, JD, MA: Mark@MarkRBrengelmanPLLC.attorney
Mark practices health care law in Frankfort, Kentucky, where he is the immediate past Chair of the Health Law Section of the Kentucky Bar Association. For fifteen years, he was the Assistant Attorney General assigned as General Counsel and Prosecuting Attorney to the Kentucky Board of Physical Therapy.