Category: Protecting Doctors Who Protect the Injured

Do you bill insurance companies for the treatment of patients injured in auto accidents?

Did you know you are a fraud?

Inventing Fraud For Profit

In the 1990’s, global consulting giant McKinsey & Company revolutionized the way auto insurance companies handled bodily injury claims by showing them how they could use their Claims Operations as profit generators.

McKinsey identified that of the tens of thousands of bodily injury claims being made daily across the country as the result of auto accidents, the largest majority could be classified as “Minor Accident Soft Tissue Injury” (MIST) claims.  Because these claims involve relatively minor property damage and mostly subjective injuries, McKinsey advised that insurers could dramatically drive down the costs of these claims simply by handling them all as fraudulent.    

Over the past two decades, the entire insurance industry has adopted varying versions of McKinsey’s “fraud funnel” to reduce claims payments by billions of dollars every year.  The idea is simple: Invent a new definition of fraud which enables the accusation to be made in virtually any claim.  This was accomplished with the invention of “fraud indicators”.

There are now hundreds and hundreds of “fraud indicators” which insurers apply to every kind of claim in order to feed the fraud funnel.  Most relevant and alarming to chiropractors, though, should be the fact that treatment with a chiropractor is a fraud indicator in any bodily injury claim. 

Other “indicators of fraud” include:

• that a claimant is represented by an attorney
• that a claimant’s injuries are subjective
• that the insured had a pre-existing injury or health problem
• that the insured’s car was new; and that the insured’s car was old

The presence of any two indicators in a claim pushes it into the fraud funnel.  

The fraud funnel has excreted billions of dollars into the pockets of insurers over the past 20 years.  Its biggest moneymaker though, has been using accusations of fraud to undermine the credibility of chiropractors, who are the doctors most often providing treatment to auto accident patients across the country.

This idea is obviously no new thing (recall the AMA’s Committee on Quackery).  The major auto insurers, however, have turned attacking chiropractors into huge profits.

Beginning on the east coast in the early 2000’s and spreading slowly west since, major auto insurers have been filing massive fraud lawsuits alleging RICO conspiracies and worse against chiropractic practices in major metropolitan areas.  

The initial targets were the fly-by-night clinics and mills clearly propped up to milk the tort system rather than provide quality, needed care.  But there are only so many of these bad actors available to sue.

Fraud lawsuits are about generating headlines and creating a perception of rampant fraud occurring in bodily injury claims in the major cities.  The net value of these headlines to the insurance industry is measured in the tens of billions of dollars, which has only created an insatiable appetite for more.   But left with only good doctors to accuse of “fraud” insurers needed more than just their invented “indicators” to support the pretense.

Thus was born the accusation of fraud based on “predetermined treatment.”

“Predetermined Treatment”

Consider just the last 10 auto accident patients you treated.  How many of them received an adjustment?  An examination?  Massage?  Therapeutic exercises?  Ultrasound or electrical muscle stimulation?  How many had a diagnosis of neck or back pain? Could you say that the treatment of 80% or more of just these 10 patients included most of these treatments and diagnoses?  Now consider all of the patients you have treated over the past 7 years.  Would the percentages be that much different?  If your practice is like most which regularly treat patients injured in automobile crashes, the treatments you have provided and diagnoses you have made over time will have been consistently similar for all patients.  

Over the past several years, as they have ranged farther and wider for chiropractors to attack, insurers have invented “predetermined treatment” as the basis for accusations of fraud.  The claim is that treatment looks reasonable and necessary in individual claims, which is why it was paid when the bills for treatment were submitted.  But after many years of receiving bills and records from a particular chiropractor, some enterprising SIU adjuster looking over many files at once identifies a “pattern” revealing that most patients receive similar diagnoses and treatments in similar durations.[1]  This “newly discovered pattern” demonstrates that the doctor was not rendering care based on the individualized needs of patients, but rather on a “predetermined treatment protocol” designed to maximize billing and defraud the insurance company.   

To defend yourself against a lawsuit alleging “predetermined treatment” of hundreds of past patients, you will incur hundreds of thousands of dollars in legal and expert fees attempting to justify the treatment you provided for each patient.  While the case is pending, the insurer will withhold payment on every bill you submit.  If you want to avoid the crippling expense and severe emotional trauma of years of litigation, the insurer will settle for pennies on the dollar of what they claim as damages, but you will have to agree never to bill that insurance company again, and never support the injuries of a patient making a claim against that insurer. 

Either way, your practice, not to mention your relationships with your spouse, kids, friends, co-workers and employees, will be decimated. 

But the result is meaningless for the insurance company.  Their goal is achieved with the headline they get merely by suing you.

Protect Yourself

There are 3 steps that can be taken to protect yourself from the fraud funnel.

1.     Make your records more detailed.  Tell the story of your treatment and its reasoning.  You can only truly protect yourself by creating detailed records which prevent anyone from undermining the credibility of your care.

2.    Understand that insurance adjusters will never see you as anything other than an indicator of fraud.  Do not make the mistake of providing them access to your office or your business records or any other documents to which they are not immediately entitled by the terms of your patient’s authorization.  You cannot convince them to like you.  To them, you are nothing more than a ledger entry. 

3.    Never offer a statement to an insurer without counsel.  The insurer’s only purposes are to get information which they can use to characterize you as a fraud and/or deny payment for your services.  They will employ questioning you are not prepared for and may respond to inaccurately.  You cannot walk back a statement made under oath once made, so protect yourself with seasoned counsel who understands the purpose of every inquiry.

Don’t Let Yourself Be the Next Headline

Every doctor I have represented around the country who has been falsely accused of fraud has said the same thing to me: “I never thought this could happen to me.”  They all believed their honest professionalism protected them.  It does not, nor will yours protect you.  Know that your mere existence makes you a target and take the steps necessary to protect yourself.

Baratta Law

3500 Reading Way

Huntingdon Valley, PA  19006

215-914-8132

www.barattalawfirm.com

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[1] How and why doctors get singled out for such retrospective reconsideration is a much broader subject.

It is impossible to stop someone from telling a lie about you.  But when you know what lie they want to tell, you can protect yourself from it by making the lie impossible to believe.  

In Part 1 of this series, I explained why and how auto insurers use false accusations of fraud against chiropractors to generate profit in their claims operations.  Below I will offer some practical tips on steps you can take to make the lie insurers want to tell about you impossible to believe.

The first most obvious advice is Do Not Commit Fraud.  This article is not intended to help doctors manufacture the appearance of innocence, but rather to ensure that actual innocence is protected.  It presupposes that doctors are providing what they sincerely believe to be entirely reasonable and necessary treatment to injured patients who are benefiting from it.    

The records of your care are the key which will either lock or open the door to false accusations of fraud being made against you.  Most states minimally require that records accurately reflect the evaluation and treatment of the patient with sufficient information to document the clinical necessity for the care rendered.  You likely keep records which meet or exceed this minimum standard. 

It should scare you to know, however, that insurers are not looking to individual charts to manufacture an accusation of fraud against you, but rather at all of your charts collectively.   

They are looking for “patterns” throughout the records which they can characterize as “not credible.”  Remember that these are all auto accident victims suffering severe enough spinal pain to seek treatment with a chiropractor.  The universe of diagnoses and treatments in such patients is limited and will necessarily reveal patterns over time.  The accusation of fraud is that the pattern over time demonstrates the diagnoses and treatment were “predetermined” and “non-individualized.”   

You obviously have no ability to compare the patterns exhibited by your auto patients to patterns of treatment of similarly injured auto patients which have somehow been deemed “credible.”  At best you can offer your own opinion and that of other experts you might hire that the pattern is entirely that which you would expect for this set of patients based on science and experience.  

But the insurer accusing you will present their own hired experts to say that the patterns exhibited by your care would not be exhibited by an “authentic” clinical practice.  This conflict entitles the insurer to submit their accusations to a jury, which is generally 

composed in the federal courts where these cases are filed of conservatives conditioned by insurance propaganda to believe that all soft tissue auto claims are fraudulent. 

You might think you would easily defeat the insurer’s accusation by parading your patients before the jury to explain how they were injured and how your treatment helped them. Such evidence is irrelevant to the insurer’s argument, however, which is that the patient does not know what kind of exams you did, what kind of codes you applied for diagnoses and billing, nor whether they would not have gotten better anyway with less or even no treatment at all. The patients, according to the insurer, are just as much victims as the general public, who all must bear the exorbitant cost of insurance caused by your fraud. 

The only defense you have therefore is the thing they are using to accuse you: your records. In order to protect yourself, your records must reflect the individual differences of each patient’s experience in your office. This means adding more detail than any other medical professional is required to include in their records, and making sure all information within a chart is logically consistent. Here are just some of the ways to do so:

1. Intake Sheets: The information sought by your intake sheet must be limited to that which you actually need to treat the patient and bill for your services.  It must be legible with sufficient space to fill in information. 

2. Subjective Pain Reporting: The VAS, Oswestry, Vernon-Mior, and similar questionnaires which elicit the patient’s subjective pain level provide frequent ammunition to insurers who wish to characterize you as a fraud.  If a patient has rated their pain at a severe level but your examination demonstrates less severe findings, it is critical that you indicate you have considered the patient’s pain rating and incorporated it into your diagnoses and treatment recommendations.

3. Objective Findings: Given the nature of these cases, it is not unusual for there to be little to no change made in objective findings between multiple visits.  If your exam identifies no change in findings between two visits, explain why in your note so that no one can later accuse you of merely cutting and pasting a finding from one note to the next without having conducted an exam.

4. Diagnoses: It will not be unusual for diagnoses to carry over from visit to visit in these patients as well.  If diagnoses are being carried over from one visit to the next, explain why in the note.

5. Diagnostic Tests: If you recommend a test, explain why.  If the test is done, you must continue to seek a copy of the results throughout the pendency of your treatment.  If the results are not obtained but you continue treatment, explain in the notes that you are still interested in seeing the test results and why you feel comfortable continuing treatment in their absence.  

If the patient does not get the test, acknowledge this in your notes as well as why you feel comfortable continuing treatment anyway.  (All of this same advice applies to referrals to other specialists and records sought from previous providers).

6. Canned Language: Avoid the repeated use of canned language such as that which describes the general purpose of a particular modality.  Any language which appears over and over again in your records verbatim, regardless of its accuracy and applicability each time it is used, plays right into the accusation being made against you.

7. Adding/Subtracting Treatment & Findings: When you add or subtract a treatment or finding, make specific note that you have done so and why.  It is impossible in retrospect to identify small changes in treatment or findings which are not separately identified.  For example, if an initial finding of fixation at C1-5 is changed on visit number three to fixation at C3-5, note that you no longer find fixation at C1-2.

8. Individuality of Chiropractic Treatments Provided: Instead of merely noting that you performed traction on each visit, identify the individual type, setting, size, etc., and the reason you have selected it for the patient.  Similarly, if your segmental adjusting technique varies from one visit to the next, specify the technique used and why you chose it that day.   

9. Medico-Legal Language: Although it certainly can be used by your patient to support their personal injury claim in court, your treatment record need not and should not reflexively offer medico-legal language like “reasonable degree of medical certainty” or a causation opinion.  If your patient is in need of such opinions, upon their request create a separate letter or report which does so.

10. Patient Progress: Do not let your notes be silent with respect to how a patient’s progress from treatment is impacting your ongoing decision-making.  If a patient is showing little or no progress, explain why you are recommending the treatment to continue as it has, or what changes you are making, or what future results might influence you.  

The above are merely the top 10 ways chiropractors can add to their record-keeping in order to demonstrate the individuality of their care on a daily basis.  Although it will certainly require more effort and time to do so, eliminating your exposure to a false claim of “predetermined treatment” makes the effort well worth it. 

Baratta Law

3500 Reading Way

Huntingdon Valley, PA  19006

215-914-8132

www.barattalawfirm.com