MDT Bulletin of The McKenzie Institute Americas Region

Feature Commentary
     Navigating the Challenges of Being a Healthcare Provider:
     What Are the Risks for Physical Therapists?
     Helene M. Fearon, PT and Stephen M. Levine, PT, DPT, MSHA

Becoming a physical therapist of advanced clinical or business skill is a goal that many have accomplished through arduous planning, long hours, and personal sacrifice. After all the work involved, it is unlikely most want to risk it all by thinking and plotting how to best defraud the federal government or a third party payer - in fact, the vast majority of physical therapists demonstrate a high amount of professional satisfaction, and go to work each day thinking about the positive impact they can have on their patients and the communities they serve. But, this is not accomplished without the struggles that anyone would experience in an environment that encourages an increased scrutiny from healthcare regulators and third party insurance review organizations. Unfortunately, over the past decade, providers, including physical therapists, are working harder and spending longer hours in the clinic overwhelmed with paperwork to meet the increasingly burdensome regulatory requirements. All of this is done while juggling the management of your practice, which is inevitably facing negative impacts on growth due to lower third party reimbursement, higher patient co-pays, and a depressed economy.

On one hand, physical therapists who work in private practice environments often cite the reason for their preference in providing care in this setting is that it allows them to be creatively in charge of providing the highest level of clinical care to their patients and clients with their own unique touch and style. But then, there is always that pause and the inevitable footnote addressing the reality of needing to keep up with the things that must get done during each day, every month, and always at the end of the calendar year to stay out of an auditor's crosshairs. Alternatively, therapists who work in other settings, both outpatient and inpatient, often get lulled into the sense that the organization in which they practice insulates them from the reality of today's volatile healthcare environment, and falsely believe it minimizes or eliminates their risk related to knowing and adhering to practice act requirements and third party regulation. In all settings, physical therapists universally feel they simply do not have to efficiently and effectively stay current with all the rules and regulations related to being a healthcare provider in 2010.

However, the consequences for not paying close attention and developing strategies to adhere to the rules of a third party payment environment have become too big to ignore, particularly in light of passage of the Patient Protection and Accountable Care Act, known most commonly as "healthcare reform". Healthcare in general, and physical therapy specifically, remains a target for audit and investigation in order to minimize fraud, waste, and abuse in the healthcare system, particularly in the Medicare and Medicaid programs. And the recently passed healthcare reform legislation allows for recovered funds to be used to assist in paying for the identified 37 million plus uninsured Americans who will be covered in this reform process.

Although there may be few who are intentionally committing Fraud, which requires knowingly and willfully doing something to obtain money under false or fraudulent pretenses, there are far more physical therapists who fall into the category of abuse when it comes to their coding, billing and practice management procedures. Abuse is defined as "That which may directly or indirectly result in unnecessary costs to the Medicare or Medicaid program, improper payment, or payment for services which fail to meet professionally recognized standards of care, or that are medically unnecessary. Abuse involves payment for items or services when there is no legal entitlement to that payment and the provider has not knowingly and/or intentionally misrepresented facts to obtain payment."

The most common area where physical therapists may unknowingly tread is a violation of the civil statute known as the False Claims Act (31 U.S.C. §3729(a)), (the Act). A healthcare provider can be found guilty of submitting a false claim if he/she:

Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
Knowingly makes, uses, or causes to be made, a false record or statement to get a false or fraudulent claim paid or approved;
Conspires to defraud the Government by getting a false claim paid or approved; or
Knowingly makes, uses, or causes to be made, a false record or statement to conceal, avoid, or decrease an obligation to pay money or property of the Government.

The liability under the False Claims Act is three times the loss to the Government plus penalties of $5,000 to $10,000 per claim, and the stakes have become higher in recent years as government agencies interpret violation of the law as an individual who either knew or should have known that what they were doing was incorrect. The concepts of "knowing" and "knowingly" are specifically identified in the Act as someone who:

The top five audit flags in physical therapy documentation can be summarized as follows:

Lack of accurate reporting of time in relationship to provision of clinical services
Lack of support for reported interventions requiring one to one contact
Lack of progress documented over episode of care
Treatment that solely or primarily involves passive care (including modalities) over majority of episode of care, and
Lack of functional context in the documentation of evaluation, treatment and discharge.

All of these flags can lead third party payers to a determination of a lack of medical necessity, which can constitute abuse as described above. Four out of five of these require review of the medical record in order to come to this conclusion, and review of the medical records, often after a claim has been processed and paid, is happening with far greater frequency over the past several years, and will likely continue.

So, why would therapists trained in the McKenzie method be at an increased risk for negative consequences of an audit, even in situations where they are successful in treating patients and achieving significantly improved outcomes? The answer often lies in the language that therapists, trained in the McKenzie approach to patient care, use to communicate (and document) their diagnostic and clinical findings, which does not easily translate to justification of medical necessity as required by most third party payers.

When reviewing the McKenize classification system and assessment forms through the eyes of an auditor, particularly a Medicare reviewer, it is clear that the classifications of dysfunction, derangement, and postural, while helpful to the McKenzie therapist, do not demonstrate a connection to functional limitations that are a requirement under the Medicare benefit for therapy services. Abbreviations on assessment forms, such as FIS, EIS, FIL, EIL, and SGIS offer no understandable relationship to measurable functional limitations through which an auditor will evaluate progress through a therapy episode of care.

Therapists trained in the McKenzie Method must develop or enhance the skill of communicating an international classification system and resultant treatment in a way that is meaningful to the entity paying the claim. In order to minimize the risk of a negative audit or worse, this skill is as important to practice management as clinical skills are in achieving identified functional outcomes. If documentation cannot demonstrate medical necessity as required under a third party payment system, then the unsuspecting (although clinically excellent) therapist may find themselves accused of abusive practices, at best having to pay back any money provided through the Medicare or private payment system, and at worst, having to defend against accusations of fraud and abuse!