January 28, 2011
IN THE MATTER OF A DISCIPLINARY ACTION AGAINST THE LICENSE OF ROBERT A. VALINOTI, D.C. LICENSE NO. 38MC00450000 TO PRACTICE CHIROPRACTIC IN THE STATE OF NEW JERSEY.
On appeal from the New Jersey Board of Chiropractic Examiners, Department of Law & Public Safety, Division of Consumer Affairs.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Koblitz and Newman.
Board licensed doctor Robert Valinoti appeals the decision of the New Jersey Board of Chiropractic Examiners (Board) assessing a civil penalty of $1000, fees and costs of $2495 and an order that he cease and desist from further violations for billing for sensory nerve conduction threshold testing, also referred to as Current Perception Threshold (CPT) testing.*fn1
Valinoti argues that he is not prohibited from performing the tests, just from billing for them. He argues that, as a per diem employee of another chiropractor, he did not perform the billing of the insurance companies and therefore did not violate the regulations. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The Board charged Valinoti pursuant to a uniform penalty letter in lieu of formal disciplinary complaint with a violation of N.J.A.C. 13:44E-3.2(b)(2), which prohibits billing for diagnostic tests that have not been reliably demonstrated to identify conditions amenable to chiropractic care beyond the information ascertainable from the taking of a patient history and performance of a thorough clinical examination or that otherwise fail to yield data of sufficient clinical value in the development, evaluation or implementation of a plan of treatment, including the following:
2. Current Perception Threshold Tests;
Specifically, the Board alleged Valinoti had performed CPT tests on at least eleven patients insured by State Farm Insurance (State Farm) between July 2000 and February 2004. State Farm was billed by Tower West Chiropractic Associates (Tower West) for these tests.
At the hearing before the Board, Valinoti testified that he worked for Tower West, which was owned by another chiropractor, since January 1995. He said that he was paid $300 to $400 per day regardless of the number of patients he saw. He admitted performing the tests for the patients in question and signing certifications for payment pursuant to N.J.A.C. 11:16-1.2 stating, I have read the attached report and bill for services and/or materials rendered to [patient]. I declare that the treatments, services or materials rendered or provided by me . . . were reasonably necessary, and were, in fact, furnished and provided [on] the dates set forth . .
Valinoti testified that the bills were created by the chiropractor who employed him and the office manager. He also testified that he was unaware that billing for CPT testing was not permitted.
The Board found that Valinoti "was aware that his professional services with respect to [CPT] were being billed by Tower West; that he did not object to the billing; and that he instead facilitated and enabled that billing by executing a certification/verification form for each client." In further explaining its decision, the Board stated:
Licensees may not avoid accountability for the billing of professional services rendered by them while employed in a practice owned by another under circumstances demonstrating that they were fully aware of the billing. Both the owner of the practice and all chiropractors rendering professional services therein must comply with applicable regulations. As health care providers, they must be aware of all applicable regulations and conform to them.
Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). We will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982). Although we give great deference to administrative decisions, State v. Johnson, 42 N.J. 146, 159 (1964), we do not simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We are not bound by an agency's "determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). We agree with the Board that a licensed chiropractor should be held to the same professional standards and obligations whether or not he is employed by another chiropractor. By certifying for the purpose of billing that he performed the CPT test and that the test was "reasonably necessary," Valinoti violated the administrative regulation in question and was properly disciplined by the Board.