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
www.barattalawfirm.com
