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Hey everyone. This is Michael Miscoe with, uh, for this week’s presentation of ChiroSecure’s Growth Without Risk series a this week. We’re going to talk about mitigating post-payment risk, uh, relative to delegated services. Um, in my firm have gotten just a boatload of cases recently, uh, where payers, um, blues payers, uh, the whole host of commercial insurance payers have been challenging physicians, uh, relative to the, the, uh, their ability to be reimbursed for services that they delegate, um, to assistance in their office. To, in some cases, those assistants are also either licensed or certified biz massage therapist. And that kind of makes things a little bit stickier, but let’s start in our analysis. Um, you know, by looking at, uh, licensure regulations, first of all, you need to validate in your licensure rules, that you have the ability to delegate the services, um, that are being performed by, uh, unlicensed or certified assistants in your offices.
Some states have very, um, clear delegation provisions. They have provisions for obtaining certification for your chiropractic assistance. Uh, some of, sometimes that’s a formal certification process. Sometimes it’s permissible with on the job training, either way. You need to understand what your authority is to allow assistance in your office, uh, who are not licensed chiropractors, um, to provide or be involved as auxiliary persons in the performance of services. Because if they are not legally permitted to do what they’re doing, then obviously the money’s going to go back because you don’t have the authority to bill it. So that’s the first thing that you have to validate is that these folks are legally doing whatever it is that you’re asking them to do. The second thing is, is that we have to look at payer policies. Some of them allege that when you delegate, uh, the performance of a service, let’s say, take something simple, like electric stem or traction.
It’s a little more complex when we’re talking about therapeutic procedures. Um, uh, especially on the licensure side, like for example, Pennsylvania, uh, chiropractors are permitted to delegate modalities, but they’re not permitted to delegate, uh, therapeutic procedures states. Some states don’t address it at all. Uh, and it creates a lot of confusion. Some states address it, uh, very thoroughly. But once you validate that this assistant who is not a licensed DC is legally performing under your supervision, whatever it is that they’re doing, then you have to look at the payer policies. And before we even get to those, we have to look at your contract. Most contracts allow you and require you to bill covered services that are within your scope of practice. Now, within your scope of practice, I would argue includes, uh, services for which a portion of the service, um, is delegated to an auxiliary person.
Uh, who’s not licensed in their own right, uh, to be credentialed, um, by the particular commercial plan that you’re billing, nonetheless, uh, that concept not withstanding some payers consider that pass through billing. And let me explain what pass through billing is because if you look in your contract, you may see a prohibition for it pass through billing would be if you first, uh, for example, delegated the entirety of a service to another licensed provider who performed that service, and then you build it under you. Uh, so for example, let’s say you had an independent contractor in your office, not an employee, he or she is essentially running their own practice. If they’re an independent contractor, that’s what it means. It’s not a convenient, uh, term to label an associate who works for you. So you don’t have to pay workers’ comp or do withholding, but an independent contractor is somebody who rent space in your office.
And they were essentially running their own practice if they were to perform a service for you, but you would bill it out under you, especially if they weren’t credentialed in your group, which if they’re truly independent, they wouldn’t be, um, in that scenario that would be passed through billing, um, however, delegation of a portion of the service. And we’ll talk about what portion, uh, you are in fact delegating, um, uh, that is not passed through billing. That’s, what’s called use of auxiliary personnel. It’s common in the medical field. I mean, let’s face it. Nobody believes that the board certified radiologist is operating the CT or the MRI machine. Nobody believes that physicians take the entire history and do everything associated with all the care that’s performed in their office. They use nurses, medical assistants, um, and similarly, uh, chiropractors, traditionally use chiropractic assistants, whatever you would call them.
Um, nonetheless, when you delegate something, um, you, you have to understand what you’re permitted to delegate. Usually the non decision-making aspects of a service. So if you look at, for example, the Medicare physician fee schedule database, and how they value services, there are three components of value, the physician relative work, that’s all the, um, uh, the brain power didactic, decision-making whatever. Uh, so you’re doing examinations diagnosis, developing planet cares, determining the who, what, where, where, how, why of a particular service. So let’s say for electric stem, you have to determine where it’s to be applied, what protocols to be used, how long, where to set all the dials and knobs. Okay. Um, then there’s the performance component, which is the actual application of the therapy. So in that scenario, um, I, if I was your assistant, I would do what I like to call. And if there’s any CAS on the call, don’t get upset.
It’s what I like to call the monkey boy component of the service. Meaning I don’t get to turn on my brain. I do exactly what you tell me to do. I turn the knobs where you tell me to turn them. I put the, the, the, the electrodes where you tell me to put them, I turn the dials to where you’re telling me to turn them. I set the timer for the time indicated in the order. And, and, and that is what you’re delegating to me. And in that scenario, uh, as long as I’m not doing any decision-making, then it, it, it becomes if permitted under your licensure rules, a properly delegated, uh, service and billable under you, even though you didn’t personally do all the work, um, you get the bill for the service, and it’s, it’s a rule that comes from Medicare. It’s called the incident to rule, which essentially allows you to bill for services that are integral, although incidental to your physician professional work that are performed under your direct supervision by an employee.
Okay. So, and that’s a very large oversimplification of the rural. I do whole lectures on the incident to rule, but that is the basic rule that allows, that is accepted throughout, uh, the insurance industry that allows providers to bill for work, that they didn’t personally perform. For example, vena punctures, uh, you know, when they’re doing blood draws, those are done by nurses. They get billed by physicians where they’re covered. Uh, nobody believes the physician is doing everything that gets billed out of physician’s office. And the same is true in a chiropractic or PT office. PT is used PT assistants, you know, in which case, um, their work becomes billable under the PT because usually, uh, and in fact, I’ve never seen it, no insurance company credentials, a PT assistant, uh, because they’re, uh, they’re, they’re not qualified providers even where they’re licensed in their state.
So they have to operate under the supervision of a PT, for example, hence anything they do at the PTs direction is billable under the PT. So that’s the basics of the incident to rule and what payers generally allow. Now, I’ve seen that challenged and in many cases, it’s because it’s not clear in the documentation that the physician is actually controlling the care. Um, and, and what I’m talking about is, is that, uh, fundamentally from a documentation perspective, the doc is not writing an actual order for the therapy. So the one way, if you’re using auxiliary persons, these are these folks that, uh, uh, assistance that, um, work under you. Um, you need to write a detailed order, basically eliminating all the decision-making associated with the service. Now I mentioned, in some cases, um, this issue comes up a lot where massage therapy is built and, and that’s, again, a whole different topic in terms of whether it makes sense to build massage therapy in addition to manipulation, but let’s assume that it is, and the massage is being performed by a massage therapist.
Okay. From a documentation perspective, if you’re, if the only way you can get paid is under you. Okay. The most important, uh, thing that you can do to mitigate a carrier’s argument, um, that it should have been built under the massage therapist is that you examine the patient, diagnose the patient, developed a plan of care and wrote the specific order you’re telling the massage therapist exactly what soft tissue structures to address, what technique to use, how long to do it. Okay. And be mindful on the medical necessity side that you stick to the areas of direct complaint, no head, shoulder knees, and toes, 60 minute massages. These are going to be focal massages, but you have to eliminate the decision-making. So for delegated massage services, the one thing you never, ever, ever do is allow your massage therapist to write a soap note, because that becomes exhibit a and the carrier’s argument that the massage therapist is controlling the care, not the doctor, therefore, when that is true, then those services are not incidental.
Although integral to the physician’s professional work, that’s the massage therapist deciding on their own what they’re going to do in which case as the decision-maker, the service should, is properly billed under the massage therapist, whether it’s covered or not. Okay. So, and that is where docs have, have unfortunately been forced into, you know, some payer favorable settlements, uh, because the documentation really wasn’t there to give us a solid argument that the doctor was controlling the care. And yes, we can argue. Yeah, well, I gave them instructions, whatever, but let’s face it when a licensed massage therapist is doing subjective and objective analysis and writing an assessment and a plan. And then we did this and this is what we found and they’re, they’re playing doctor. Um, I cannot make a successful argument that, that, that is a delegated service as opposed to a referred service.
So, interestingly enough, you know, we asked the question, when is a licensed massage therapist, not a licensed massage therapist. And the answer is when they’re functioning as a chiropractic assistant, some states, you know, where they can have licensure, and then they can also be as chiropractic assistants. You have to be careful making sure that you understand what hat they’re wearing at any given time. So understand the distinction. If you refer a patient to a massage therapist and drop it in their lap and say, okay, uh, go to see therapists, Jamie, and Jamie’s gonna take care of you. Then Jamie figures out what Jamie’s going to do. And Jamie takes his or her own notes. And, uh, Jamie determines what massage is going to be done. And Jamie then bills it under Jamie, assuming Jamie is a credentialed provider with the payer, or if not, it’s an out of network service.
And if it’s not covered, it’s not covered. And they build a patient that’s a referred service, a delegated massage service would look like this. As I mentioned before, the licensed DC examines diagnosis develops a plan of care, writes a treatment order for massage and orders, Jamie, to do exactly what the doctor wants Jamie to do. And Jamie’s note, if anything indicates perform massage pursuant to Dr. So-and-so’s order dated whatever for X minutes. And that’s all Jamie says, um, thereby demonstrating that Jamie never turned his or her brain on, they just did what the doctor told them to do. And with respect to all delegated services, that’s what the note should look like. If it’s therapeutic exercises, um, the docs got to write an order sets, reps, weights, whatever specify exactly what’s to be done, uh, to the extent that an assistant is there for purposes of safety providing, um, one-on-one contact fine, but the physician should still be there to provide the skilled aspect of the contact.
And this is where procedures get a little problematic in the delegation realm because, um, the, the contact requirements require skilled contact for exercises and therapeutic activities. And it’s questionable in many states weather, uh, CAS can, can perform that, uh, can provide that level of skilled contact, long story short, be very careful with delegated services, make sure your documentation is tight, make sure you understand, you know, the incident to role relative to your authority generally. And when you’re dealing with, uh, people that have other licenses, okay, maybe you’ve got a, you know, medical neurologist, you know, that decided that, uh, you know, the medical neurology gig was too, um, uh, you know, stressful and they just want to be a chiropractic assistant, fine park, your degree out in the parking lot, your chiropractic assistant, that’s how they represent themselves when they’re working in that role. And they do what they’re told. Okay. So with that, um, I hope that gives you, uh, some help as to how you might insulate yourself from post-payment liability relative to delegated services. Your other option is do everything yourself, um, that may or may not be possible depending on the scope of, of the services that you offer and the number of patients you see. Um, but if that’s, that’s your approach that works too, uh, next week, uh, ChiroSecure is going to be presenting, uh, Dr. Janice Hughes. I’m sure that’ll be an engaging presentation. And until next time, we’ll see you later.