Abusive fee practices: what sanctions for massage therapists-physiotherapists?

By decision No. 403921 rendered on February 21, 2018, the Conseil d'État ruled in proceedings initiated by the CPAM of Lille-Douai before the Disciplinary Chamber of the Order of Massage Therapists-Physiotherapists, against a massage therapist-physiotherapist, who was accused of manifestly excessive billing, and consequently sought the reimbursement of abusive fees under Article L. 145-5-2 of the Social Security Code.

The first-degree disciplinary court rejected the CPAM's request, and the social security section of the CNMOK, hearing the CPAM's appeal, held, given the number of procedures declared by this practitioner and the average treatment time set at thirty minutes by the General Nomenclature of Professional Activity (“NGAP”)[1], that the individual had provided care under conditions that did not ensure its quality.

The appellate court imposed a ban on providing care to insured persons for 90 days, but in application of its settled case law, since the acts had been performed, it rejected the reimbursement request made by the CPAM, which appealed to the Court of Cassation.

In its ruling, the Council of State held that the CPAM is entitled to obtain reimbursement for abusive fees, on the grounds that the social section of the CNOMK could not "dismiss the allegation that such conduct constituted an abuse of fees, based solely on the reason that the fund had not produced a medical assessment of the quality of care provided by" the physiotherapist and "that it was for it to determine whether the total number of acts performed by the individual in a single day revealed the billing of fictitious acts or acts performed under conditions such that they were equivalent to a lack of care, consequently constituting an abuse of fees that could give rise to repayment by him to the social security bodies."

More specifically, the Council of State had noted for the period under review, a theoretical activity duration exceeding 15 hours for 214 days and exceeding 23 hours for 23 days.

The Council of State thus puts an end to a consistent case law of the insurance section of the CNOMK, whereby the Chamber, while sanctioning massage therapists-physiotherapists by prohibiting them from providing care to social security beneficiaries, does not condemn them to repay fees, on the grounds that the professional actually performed these acts and that they are therefore not, in themselves, abusive. (see for example ONMK, sect. des assurances soc. du cons. national de l’ordre des masseurs-kinésithérapeutes 6 avr. 2017, n° 002-2015 and ONMK, sect. des assurances soc. du cons. national de l’ordre des masseurs-kinésithérapeutes, 11 févr. 2016, n° 001-2015).

Physiotherapists must now be attentive to the number of acts actually performed (by the physiotherapist or the patient independently) and billed, which may result, in addition to the prohibition of providing care to social security beneficiaries, in the repayment by the practitioner of sums received for care whose number exceeds a ceiling, set in this decision at 30 acts per day (i.e., 15 hours of actual work).

In this decision, the Council of State seems to rule for the first time on this question for physiotherapists, but it follows similar precedents for nurses (see for example Council of State, 4th – 5th combined chambers, November 23, 2016, 387988 or also CE, 4th – 5th ch. combined, Nov. 8, 2017, No. 398480)

[1] General nomenclature of professional acts of doctors, dental surgeons, midwives, and medical auxiliaries established by the decree of March 27, 1972, and the decree of May 10, 2007 approving the national agreement for massage therapists and physiotherapists.

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