"There have been a number of 'raids' on multidisciplinary practices by government agencies, both state and federal. These have been prompted, apparently, by concerns about high billing and improper billing.
Multidisciplinary or MD/DC practices have become quite the rage. As managed care and insurer cost-containment initiatives have impacted earning potential, many doctors have turned to the integrated practice as a way to stay afloat in the business world, while providing even better care for their patients. The law in most states is murky and the usual doctor relies upon lawyers and other consultants to try and do it right.
Some of those enmeshed in or contemplating an MD/DC practice have new reason to be concerned. Letters from attorney Robert Borsody (as excerpted above) of Practice Perfect and consultant Dr. Ron Halstead of Management 1 Systems, Inc., have disturbed the waters of chiropractor comfort.
While Borsody's letter is full of assurances that all is well and that the systems he helped set up are "completely legal under your state laws and, to my knowledge, as you have informed me and under the advice of your various reimbursement experts and consultants." He consoles, despite widely reported FBI, disciplinary board and Postal Service investigations, searches and seizures:
"Accordingly, you certainly should have no reason to be concerned with adverse regulatory action. However, as I mentioned above, this often is not enough to provide a shield against discriminatory or unfair actions by regulatory authorities, especially when motivated by disgruntled former employees or competitors."
His "Outline for Asset Protection Presentation" received by some doctors describes a number of legal techniques for sheltering assets potentially at risk. These include offshore trusts in the Cayman Islands, Cook Islands (South Pacific); Bahamas; Belize; Cyprus; Gibralta; Turks and Caicos (Caribbean). The modest cost of this protection? "... usually $10,000 to $15,000 for a 'complete setup' of a basic nature and a few thousand dollars a year for trustees' fees."
It is certainly true that there have been a number of "raids" on multidisciplinary practices. It is equally true that doctors' assets are at risk. The legality, morality and efficacy of moving those assets off-shore are much less clear.
Dr. Halstead's letter (dated less than two weeks after Borsody's) is much less confident and sounds much like a disclaimer:
"From time to time I will be sending you notes regarding updates, changes in procedures and protocols and conceptual changes as they are made apparent to me through changes in laws, updates, procedures that seem to work better or better documentation, etc. However, please do not rely on these notes to determine your procedure, every state is different. Accepted protocols are also different from Medicare, specific insurance companies, HMOs, PPOs, workers' compensation in a particular state, or personal injury in a particular state. You must research these and all other procedures specifically for yourself through your local attorney, state laws, medical boards, chiropractic boards, etc. You are responsible for getting the specific ruling in your particular state and your specific situation. These notes are only conceptual in nature and to help you think of possible procedures and appropriate protocols."
In an apparent attempt to disassociate himself from advice given by one of his ostensible competitors, Dr. Halstead says he's opposed to MD "standing orders" and always has been:
"In going into your offices I have continued to find doctors who are doing 'standing orders.' I do not agree with this protocol nor have I ever agreed with it, even in principle. It has caused numerous problems and has the potential for many more."
While many disagree with his protestations of never having advised against such dangerous systems. Dr. Halstead's letter sets very high standards for the MD/DC relationship:
"The best possible solution to billing and procedural problems is for the MD and the DC to be in the clinic on a full-time basis. This is the true concept of a multidisciplinary practice. I see too many doctors that have the MD work only on a part-time basis. This is not a good idea and can cause a multitude of problems."
Offices and homes are being searched. Armed agents are coming to the door and closing offices, frightening patients and staff. Employees are being questioned. Indictments are expected. The government is not amused. Computer searches are focusing on out-of-state "owner doctors" and their $500 per month "director's fees." Big Brother has been watching for a long time and it looks like he's coming.
At this point, you may be wondering how I can make such dire predictions. The answer may alarm you even further. I am an attorney currently representing doctors of chiropractic in several states who have been searched by federal authorities concerning their involvement in multidisciplinary practices.
Every doctor who is in an MD/DC practice, regardless of who set it up, is potentially at risk. Chiropractor multidisciplinary clinic owners should immediately contact a lawyer knowledgeable about these issues. If the attorney is unfamiliar with multi-disciplinary concepts, someone with more knowledge of the chiropractic profession is needed.
What do you need?
An independent compliance assessment. "Independence" is indispensable and means one performed by capable people who had nothing to do with setting up your MD/DC practice and have no reason to give unrealistic assurances of your vulnerability to criminal prosecution, a civil money penalty, and disciplinary action.
Identifying and correcting noncompliance has many benefits:
- While coming into compliance does not immunize the doctor for past conduct, it does reduce the likelihood of insurer or disgruntled employee complaints which often spark regulatory investigations.
- Compliance "caps" the dollar amount which may be claimed to have been falsely billed. This will reduce the amount which may have to be repaid and prevents the escalation of penalties under federal sentencing guidelines.
- Juries can be influenced by the doctor's prompt corrective action upon being advised of violations.
- Prosecutorial and investigative zeal may be tempered by learning of the doctor's corrective steps prior to a search. Post-search "non-target" designation is possible for those who voluntarily bring themselves into compliance before a search.
If your risk assessment suggests that seeking to right your ship is not too risky and that you need not sink it yet, the least constrictive defensive mechanism is the establishment of a compliance board.
A compliance board should be no mere figurehead, but empowered to make realistic assessments of rules, regulations, statutes and to require the business to comply with its recommendations.
Establishing such a board has the benefits of alerting you to problem areas that expose you to attack and allowing you to correct them before you have agents running around in your back yard. If it's too late to keep the feds from coming for you, the use of a board may reduce your exposure to jail time under the federal sentencing guidelines.
The 1991 Federal Sentencing Guidelines for Organizations allow an organization (including providers) to reduce its culpability by establishing and maintaining a program to prevent and detect violations of the law. Under the guidelines, if two MD/DC practices are guilty of the same violation, such as the submission of false claims, the one with a compliance program in place will be given a significantly reduced penalty.
If you have been searched, you must get a lawyer who is familiar not only with federal criminal procedure but the idiosyncracies of MD/DC practices. If you have not been searched, but are concerned after reading this article, you should seek legal counsel now, before you are forced to.