A chiropractor was unsuccessful on appeal from an order of the Joint Chiropractic Professional Review Committee (the “Committee”). The order that his billings be reduced by about $62,000.00 was upheld.

Administrative law – Decisions of administrative tribunals – College of Chiropractors – Investigations – Chiropractors – Disciplinary proceedings – Billing matters – Pattern of practice – Judicial review – Natural justice – Evidence – Notice – Standard of review – Reasonableness simpliciter

New v. Saskatchewan (Minister of Health), [2010] S.J. No. 155, 2010 SKQB 111, Saskatchewan Court of Queen’s Bench, March 19, 2010, F.J. Kovach J.

Dr. Travis New (“Dr. New”) was practicing as a chiropractor in Swift Current, Saskatchewan when the Committee expressed concerns about his billing pattern between Fall 2004 and Fall 2005. Among the issues raised were the total number of services provided by Dr. New, the total number of discrete patients, and the number of patients under the age of 15.

The Committee requested patient files and other information and gave Dr. New an attempt to clarify his pattern of practice. Thereafter, the Committee indicated it had continuing concerns about the cost and number of services provided per patient, the number of patients billed per day, legibility of Dr. New’s records, and the absence of documentation to support treatment and treatment plans.

A hearing proceeded in the Summer of 2006 and Dr. New attended with counsel. The Committee provided a report that was critical of Dr. New’s billing practices. Dr. New applied for a new hearing or to reopen the hearing for further evidence, and that request was rejected. The report of the Committee was then finalized and it included a review of Dr. New’s lengthy work hours, his continuing educational efforts, and his volunteer work in the community.

The report elaborated on the Committee’s concerns, noting that Dr. New had spent 3.3 to 4.75 minutes per patient, on average. The Committee felt there would be inadequate time to provide the services billed, even accounting for “adjustment only” visits. Adjustment only visits were intended to include a history, functional inquiry, examination and assessment, as well as treatment and a treatment plan. In addition, the report noted that treatments were reviewed only infrequently. Long term patients of Dr. New did not receive a new review after a break in service. Documentation was deficient, in that only positive test results were recorded and Dr. New often did not complete all relevant tests when he felt he knew the diagnosis. The report commented that there was a “lack of insightful or pertinent documentation on each file for each patient”.

The report demonstrated that the Committee had addressed the issue of standards of care with Dr. New and that a specific reference was made to professional publications including the “Counsel on Chiropractic Education Standards for Doctors of Chiropractic Programs and Requirements for Institutional Status, January, 2006”. The Committee felt that these publications represented acceptable standards that were recognized by all chiropractors and felt that the standards applied to the assessment of Dr. New’s practice were consistent with these generally accepted standards.

The Committee’s final order called for a reduction of Dr. New’s billings in the period of September 28, 2004 to September 13, 2005, including a reduction of 7.5% for inadequate documentation, a further reduction of 10% due to “over servicing”, and a final reduction of 15% because the service billed was not in compliance with contractual requirements for payment of billing under the Saskatchewan Health Payment schedule. These reductions created an order for a statutory debt of $62,252.28 payable by Dr. New to the Minister of Health.

Based on the statutory appeal available on the Saskatchewan Medical Care Insurance Act, Dr. New had to demonstrate that the Committee had proceeded without jurisdiction or had exceeded its jurisdiction, had failed to observe the rules of natural justice, had made an error of law, or had made findings that were not reasonably supported by the evidence on material that the Committee was entitled to consider.

The standard of review of reasonableness was applied. Dr. New argued that the factual findings in support of the order were defective and that the Committee had failed to observe the rules of natural justice.

The court viewed its role as one of review of the evidentiary footing for peer review reassessment orders. The argument that the primary responsibility for reassessment should lie with a committee of professional colleagues with specific expertise to consider the issue was accepted. The peer review process was summary in nature, not having any particular rules of evidence which governed it, and the court recognized that there should be deference to the Committee based on their professional experience including determination of whether Dr. New’s departure from a pattern of chiropractic billing practice would be acceptable to a peer group. In coming to that determination, the Committee was best equipped to assess the validity and credibility of Dr. New’s explanation for any aberration from a typical pattern of chiropractic billing practice.

The legislative objectives of the scheme established under the Saskatchewan Medical Care Insurance Act included the imposition of controls and limits on the liability of the public purse to pay billings by care providers for services provided to patients. Although the ultimate goal of providing medical services should be to provide quality patient care, public monies are not unlimited and such care must be provided in a cost effective manner.

The court then turned to reviewing the Committee’s findings with respect to Dr. New’s documentation, the allegation of over servicing, the question of incomplete professional services. The court looked at whether the findings were reasonable and supported by the evidence before the Committee.

In terms of the inadequate documentation finding, the court noted that Dr. New bore the onus of demonstrating that he met the patient record keeping requirements contained in the payment schedule. The Committee reviewed 25 patient files during the hearing and expressed concern about the absence of documentation and the legibility of documentation in 21 of those patient cases. The Committee considered the evidence, including Dr. New’s answers to questions and his submissions and was not persuaded that the charts contained the information the payment schedule required. The court held that the Committee was entitled to apply its professional expertise in reaching the conclusion that there was inadequate documentation and ordering a billing reduction in the amount of 7.5%.

On the question of over servicing, the Committee reviewed statistical evidence and detailed explanations from Dr. New as to why his statistical ranking for services provided per patient and cost per patient were above the norm. The court again showed deference to the professional committee, finding that peers determined whether conduct in the level of treatment was an unacceptable departure from the norm. The court held that the Committee had evidence before it to reasonably support the conclusion that Dr. New’s departure from the norm in the level of servicing of patients was unacceptable.

The court then turned to the question of incomplete professional services. A reduction of 15% of billings had been ordered because Dr. New billed a high number of services per day, well in excess of his group average and, during some of the review period, Dr. New was seeing between 75 and 100 patients per day. The Committee had pointed out that competency was not the issue. However, given the number of daily services Dr. New provided it could not be said that he had performed complete services such that he should be reimbursed for all of them. The average time of 3.3 to 4.75 minutes per patient was not enough time to provide all the necessary components required for an insurable chiropractic service and several necessary components of the payment schedule were not met. The court upheld the Committee’s finding that Dr. New had provided incomplete professional services for the billings submitted.

Dr. New then argued that the Committee had failed to observe the rules of natural justice required by the Act in failing to provide him adequate notice of its concerns about record keeping, the number of services per patient, the lack of evidence indicating professional standards of care, and their concerns that functional inquiry, examination and assessment components of his service and record keeping were deficient.

The court referred to the decision Hussain v. Joint Medical Professional Review Committee (Sask.) [2001] S.J. No. 807 for the proposition that the Committee has an obligation to provide the practitioner with notice of its concerns. In that decision, the court stated “to wait in the weeds with undisclosed concerns until the time of the hearing and to firstly bring those concerns to a physician’s attention during the hearing was not fair to the physician.”

The Committee provided Dr. New with notice of its concerns in April 2006 by correspondence, and that such notice was adequate. The Committee was also found to be aware of Dr. New’s position and his explanations in response to their concerns. The Committee had provided Dr. New with adequate notice and a reasonable opportunity to respond. The Committee’s decision was held to be reasonable and supported by the evidence.

Dr. New’s appeal was dismissed and the order of the Committee was upheld.

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