Anatomy of a Sunset: How Much Can Licensing Board Members Get Away With Before...?

It was only a few years ago that the California Dental Board was sunsetted by the state legislature. Their crime? Failing to warn the public about mercury fillings. The California Board of Chiropractic Examiners could be facing a similar challenge, as at least one of its members is accused of treating patients with manipulation under anesthesia (MUA), unnecessary medical treatment and fraudulent billing of insurance carriers.

A board member, Michael Hamby, DC, appears prominently in a response filed in the Superior Court of California, County of San Joaquin, by Deputy District Attorney James Weydert:

• "Michael Hamby personally told Nick Ferrua (an outside investigator contracted by this office), D.O.I. Investigator Leighton Johe (and myself) that the only reason he engaged in six (6) M.U.A. procedures in 2003 (2 patients - each receiving 3 consecutive days of treatments) was for his own familiarization/education so that he could receive a certification that would allow him to add another 'qualification' designation on his curriculum vitae (C.V.).

  "There was never even the slightest suggestion made by Hamby that there was ANY medical necessity/patient care issues involved, for which both Travelers and Zenith Insurance companies paid $1,000's and $1,000's of dollars to him in a workers comp claim needlessly."

• "A review of the Workers Comp, DWC PR-2 form clearly indicates Michael Hamby as the Primary Testing Physician ordering MUA procedure requiring a medical doctor's participation. He understood even in 2003 that authorizing-ordering medical procedures requiring a licensed M.D.'s involvement was illegal, outside the scope of his license."

• "Hamby prepared his own billing for these 2 patients, and had to go outside his established chiropractic billing (cpt) codes into a section (2xxxx) reserved for MEDICAL procedures performed by licensed MEDICAL doctors. In submitting his bills to Travelers and Zenith, designating the work he did, exactly as the type of work as only those licensed to practice medicine can perform, can only be viewed as an admission that he was knowingly practicing outside the scope of his license (and also being paid under M.D. only procedure codes amounts, far beyond that earned for chiropractic manipulations)."

• "Even more incriminating, Hamby evidenced his knowledge and intent to use MUA's for criminal gain (in 2003) when he prepared his billing statements using altered and mislabeled treatment descriptions to conceal the fraudulent nature of his work (again separate from the MUA chiropractic 'use of drugs' issue). Review of the seized patient files and post-op reports confirm that the same exact procedure was given 3 days in a row to a specific patient, yet the filling descriptions were constantly being altered and mislabeled, including added designations to unspecified procedures, all for the same identical procedure. The only purpose for the altered descriptions is to avoid 'red flags' and detection associated with billing for the same EXACT procedure - 3 days in a row."

• "Hamby not only received payment from both insurance carriers for unnecessary, unauthorized and fraudulently mislabeled procedures, he incredibly padded his bill by engaging in a number of recognized fraudulent billing schemes, i.e. unbundling (charging for numerous individual procedures usually charged as 1 package, inflating the bill)/upcoding (charging for mislabeled, more expensive work than actually done)."

• "An inspection of billing Hamby prepared and submitted indicates he added a billing modifier (a -22 suffix) to increase the amount paid on the basis that somehow the same exact procedure became more unusual/of greater complexity on subsequent days (though there is absolutely no support in the patient records or post-op reports to support the billing practice). This same pattern of fraudulent billing was also replicated with the second patient. Again, there was no misconception or confusion in 2003, about padding a bill with fraudulent inflated descriptive labels and cpt codes."

While these statements are currently only accusations made in a deputy district attorney's response to another case, one has to wonder about their validity. And if they are completely or even partially true, what does that say about the integrity of the California Board of Chiropractic Examiners?

At what point do the actions of a particular board member jeopardize the existence of their chiropractic licensing board? Do the rest of the board members have a responsibility to investigate Dr. Hamby's actions and potentially ask for his resignation? Depending on the circumstances, does Dr. Hamby have an obligation to consider protecting the board by resigning?

The enemies of chiropractic don't need any more ammunition. Any action by any doctor of chiropractic is a direct reflection on our profession. The actions of those in leadership positions, particularly those responsible for protecting the public, must be without reproach.

DMP Jr.