Chiropractor Prosecuted for
for ALCAT Testing
Stephen Barrett, M.D.
Benjamin Darrow, D.C. 48, who practiced in Daly City, California, has pleaded "no contest" to insurance fraud and other charges related to an ineffective food allergy test that is not covered by insurance companies. The amended felony information accused Darrow of 15 counts of insurance fraud, 1 count of practicing medicine without a license, and 1 count of illegally charging for laboratory services .
The ineffective test—called the Antigen Leukocyte Antibody Test (abbreviated ALCAT or Alcat)—was launched in the mid-1980s by American Medical Testing Laboratories and is now marketed by Cell Sciences Systems Corp. of Deerfield Beach, Florida. The test analyzes the responses of the patient's white blood cells (leukocytes) when incubated with extracts of foods and other test substances. Proponents claim that the test can detect "intolerances" and that avoiding the alleged offenders can lead to improved health in various ways .
Although the ALCAT test has been available for more than 30 years, its use has not been established by scientific studies . Blue Shield of California has summarized the research this way:
There is a lack of published research on the diagnostic accuracy of ALCAT; therefore, it is not possible to determine the sensitivity, specificity, and/or predictive value of the test compared with alternatives. A few low-quality studies have reported improvements in outcomes following the use of ALCAT, but it is not possible to determine whether these changes occurred as a result of the test itself, bias, variation in the natural history of the condition, and/or the placebo effect. The evidence is insufficient to determine the effects of the technology on health outcomes .
The prosecuting attorney's trial brief summarizes what Darrow did to get into trouble.
- Before 2012, Darrow ran Darrow Chiropractic in Daly City, California. The clinic was relatively small and typically billed only for spinal manipulations, x-rays for new patients, and treatment with TENS units. Early in 2012, he told his staff that he intended to change the practice to a combined medical and chiropractic clinic. He paid for the staff to attend a seminar in Georgia hosted by Physicians Business Solutions (PBS) that provided instructions and examples of how to bill for new services available through the PBS program. To render such services, the seminar indicated that the clinic would need a medical doctor on staff.
- Under Darrow's direction, the clinic implemented the PBS model. The name changed to Pacific Spine and Joint Medical Group (PSJ) but operated at the same location and retained signage for Darrow Chiropractic. The staff size increased greatly, including an M.D. named Moshe Lewis.
- PSJ was set up with Darrow owning 49% and Lewis owning 51%. Official filings for PSJ listed Darrow as chief executive officer, chief financial officer, and president and Lewis as secretary. However, Lewis's involvement was minimal and his ownership was"on paper" only. He did not make business decisions, supervise other employees, have access to the finances, or share in the profits. But his association enabled PSJ to offer medical services that Darrow could not perform under his chiropractic license. Darrow then billed insurance companies as if Lewis had performed the services when they were actually performed by Darrow or other staff members under Darrow's supervision. One such service was the ALCAT "food sensitivity" test, which required a blood draw. In California, chiropractors are not permitted to draw blood.
- Between 2012 and 2015, PSJ had a constant influx of new patients. Darrow saw patients and was present in the office on a regular basis. Lewis performed only a few select tests on the patients, typically outside of normal business hours. Most employees and patients had little if any contact with Lewis and viewed Darrow as the boss. Darrow created a new culture at PSJ by pushing the employees to work very quickly and treat as many patients as possible. He placed greater emphasis on getting new patients in the door than on retaining old patients. He instructed staff to sell patients all the clinic's available services. Employees had statistical goals tied to selling services and received bonuses for reaching these goals.
- In December 2012, Darrow made several training videos about PSJ's business procedures. He instructed staff to use certain language to tell patients their symptoms were not normal and needed treatment. He repeatedly told employees to seek referrals from the patients ("hit 'em up") by asking them to refer family and co-workers with the same insurance plans. The videos also demonstrate that PSJ offered all patients the same package of services which included virtually every service the clinic offered. Patients were to be routed to "big ticket items" first before receiving any rehabilitation or chiropractic care. The training videos also discussed how to explain the ALCAT test, interpret the results, and use them to convince patients to bring other family members into the clinic.
- PSJ's income increased substantially compared to Darrow Chiropractic due to new services and insurance payments. PSJ offered about forty new services. At Darrow's direction, staff called insurance companies to determine the maximum amount paid for each service and billed at the highest allowable amount. If insurance did not pay for a service, Darrow stopped offering it.
- Section 655.5(g) of California's Business & Professions Code, prohibit health care providers from charging more than the charge by the clinical laboratory unless the additional charge is for a service actually rendered by the provider to the patient. PSJ paid $400 to $650 for the ALCAT test kits but billed insurance companies $4,200 to $6,400 for each test. The claim forms asked whether PSJ used an outside laboratory and, if so, what the outside laboratory charged. PSJ either left this section blank or denied using an outside laboratory. Emails obtained by the prosecutor indicate that Darrow was knew he was violating California's anti-markup law.
- In 2012, the National Health Care Anti-Fraud Association notified insurance companies that CPT code 83516 was being used to bill for ALCAT tests. That code has many legitimate uses, but when the companies checked high users of the code (including PSJ), they found they had unknowingly paid for ALCAT testing. The proper way to report an ALCAT is a single line entry that indicates that the test evaluated reactions to 320 substances. But PSJ's billings typically used four billing lines with 99, 99, 99, and 23 units each. By disguising what he had done and who had done it, Darrow was able to collect more than $885,000 from insurance companies for ALCAT tests.
- In addition to insurance fraud, the criminal complaint charged Darrow with exceeding the scope of his chiropractic license through his involvement with ALCAT and Lewis's lack of involvement .
In February 2019, based on the same facts, California's Board of Chiropractic Examiners charged Darrow with unprofessional conduct . The outcome is likely to be revocation of his license.
In May 2019, Darrow pleaded "no contest" to all 17 counts with which he had been charged. The plea agreement indicates that the maximum penalty that could be imposed is 76 months in prison, a fine of $1,771,243.80, a $10,000 restitution fund fine, and actual victim restitution of $885,621.90, plus investigative and court costs. The prosecutors have requested a maximum sentence of 4 years .
Other ALCAT-Related Cases
Several other peoples have gotten into trouble for improper billing for ALCAT tests.
In 2014, the San Diego District Attorney filed a criminal complaint charging Richard Loos, D.C., and his billing manager with insurance fraud, grand theft, and violations of allergy test, the antigen leukocyte antibody test, otherwise known as an 'ALCAT., based on his submission of claims to health care plans for the ALCAT test. Like those of Darrow, Loos's ALCAT claims failed to disclose that he had purchased the test and instead falsely indicated that he had actually performed the test in his office by identifying himself as the provider and using a procedure code for the test performance. The government also alleged that Loos had violated California's Section 655.5 by charging $7,250 for the ALCAT test even though he had only paid approximately $1,000 for each test. In 2015, Loos pleaded guilty to several of the charges, and received a one-year suspended jail sentence, and was ordered to pay restitution of $221,374. In 2016, and surrendered his chiropractic license..
In 2015, Louisiana chiropractor David Lee Killen pleaded guilty to one count of healthcare fraud for billing insurance companies from 2009 through 2012 for chiropractic care, equipment, and testing he never performed. Killen, who owned Back on Track Clinic in Bogalusa, admitted using the identification numbers of physicians who no longer worked for his clinics to submit bills to insurers for work they did not perform. The billings included ALCAT tests, for which he charged insurance companies considerably more than he paid for the tests. Killen was sentenced to 44 months in prison to be followed by three years of supervised release. He was also ordered to pay restitution to five insurance companies .
In 2016, the State of California charged Edward A. Balbas, M.D., Jon Brunelle, D.C., and Brunelle's wife Alejandra Brunelle with felony insurance fraud that involved deceptive billing for ALCAT tests . The trio did business as Corona Physical Medicine. Balbas pleaded guilty and is awaiting sentencing. The Brunelles are awaiting trial.
- Amended felony information. The People of the State of California vs. Benjamin Zimberoff Darrow. Superior Court of California, County of San Mateo. Case No. 16-NF-012720-A, filed, April 6, 2018.
- ALCAT Test overview. Cell Science Web site, accessed May 25, 2019.
- Wuthrich B. Unproven techniques in allergy diagnosis. Journal Investigational Allergology and Clinical Immunology 15:86-90, 2005.
- Antigen leukocyte antibody test. Blue Shield of California Policy 2.01.93, Dec 1, 2018.
- People's trial brief. The People of the State of California vs. Benjamin Zimberoff Darrow. Superior Court of California, County of San Mateo, Case No. 16-NF-012720-A, filed May 15, 2019.
- Accusation. In the matter of the accusation against Benjamin Zimberoff Darrow before the California Board of Chiropractic Examiners. Case No. 2018-12144, filed February 6, 2019.
- Plea agreement. The People of the State of California vs. Benjamin Zimberoff Darrow. Superior Court of California, County of San Mateo, Case No. 16-NF-012720-A, filed May 20, 2019.
- Stipulated surrender of license and order. In the matter of the accusation against Richard Loos before the California Board of Chiropractic Examiners. Case No. AC2016-1079, filed Aug 31, 2016.
- Bogalusa chiropractor sentenced for health care fraud. USDOJ news release, Aug 12, 2015.
- Felony complaint. The People of the State of California vs Edward Albert G. Balbas, Jon Brunelle, and Alejandra Brunelle. Superior Court of California, County of Riverside, Case No. RIF1604500, filed Sept 12, 2016.
This article was posted on June 8, 2019.