Dan Morales' showboating witch-hunt against "bogus" doctors is indeed an "incredible story." Incredibly lame.

That question is rooted in how Olmo's business evolved. The son of a Puerto Rican physician, Olmo graduated from medical school at Cetec University in the Dominican Republic in 1980. That school later collapsed after a scandal involving the sale of medical degrees unfolded. CBS made much of that fact in a report last week, but offered no evidence that Olmo was involved in the scandal or bought his degree. Olmo says he was asked to come to this country in 1982 by Raul Garcia Renaldi, a respected cardiovascular surgeon who was then practicing at Memorial Hospital Southwest and who now practices in Puerto Rico. Renaldi trained Olmo as a surgical assistant, and Olmo was tested and certified by the National Surgical Assistant Association in 1984.

Olmo was first employed by Memorial City Hospital and then later by several other hospitals where he worked as a surgical assistant. For several years he worked at West Houston Medical Center. In 1993, West Houston decided it could no longer sustain the overhead of surgical assistants, and asked Olmo to create a firm to provide surgical assistants on contract. The firm would bill the insurance companies and patients directly for its services. Olmo says he recruited colleagues who had worked at the hospital with him and contacted other Houston workers who had been certified by the National Surgical Assistant Association.

Olmo's first mistake may have been to call his company "Assistant Surgeons" instead of "Surgical Assistants." (Since Morales' lawsuit, he has changed the name of his company to International Surgical Assistants of Texas.) Both the terms "surgeon" and "physician" are protected by state law. The term "doctor" is more legally ambiguous. When he was an employee at West Houston, Olmo was issued an employee badge with the title of M.D. His colleagues who were licensed physicians addressed Olmo as "doctor" and introduced him to patients as "doctor." Olmo also sent follow-up letters on billing, sometimes signed using "Dr." and sometimes using "M.D." So the impression may well have been created with patients that Olmo was indeed a licensed physician when he was not.

But the important thing, say the physicians who worked with Olmo and others like him, was that the assistants did not practice medicine. They did not diagnose or advise patients, nor did they act independently of a physician's supervision. Olmo contends that none of his bills indicate any other appellation than "CSA" for certified surgical assistant. Olmo's policy is to bill at 20 percent of the primary surgeon's rate, which Olmo and his supporters contend is below the 30 percent a licensed physician, if one were available, would typically charge.

Olmo submitted his bills on a standard insurance form called a HCFA 1500, using numerical codes for medical procedures from Physicians Current Procedural Terminology, a manual published by the American Medical Association. Surgical assistants all over the country have been counseled by billing experts in training seminars to use two codes from this manual for their bills: numbers 80 and 81. The entries in the manual are ambiguously worded; number 80 is captioned as "assistant surgeon" and then states that "surgical assistant services may be identified" by that numerical code. Number 81 contains a similar ambiguity.

Assistant attorney general Tulinski insists that codes from the guide apply only to licensed physicians, and for surgical assistants to use the numbers constitutes fraud. Asked if there was some other category Olmo should have used, Tulinski said, "No, there is no other numerical descriptor available. That doesn't mean they can't just write a description of what they provide. There is no code. Now if the AMA wants to expand on the code, fine."

Last week Tulinski was prepared to call as a witness a man named Jim Green to testify about billing procedures. He might not have done much to advance the state's cause.

Green is owner of Houston Medical Records, a firm that has been handling medical billings for 24 years. Green does the billing for physicians as well as for another Houston firm of surgical assistants. He says the state asked him what code he uses for surgical assistants, and he said 80 or 81. "If you don't put down the 80," Green says, "you are implying you are the surgeon." As for writing a description of the services, "there is no room on the form for boilerplate," Green said.

Olmo's troubles actually began when a Fort Worth claims adjuster questioned a bill from Olmo's firm and called the State Board of Medical Examiners to see if Olmo's surgical assistant was a licensed physician. Since he was not, the board opened an inquiry, but closed it, according to documents supplied by the state, after the licensed physician who supervised the work of the surgical assistant complained to the director of the state board.

A board investigator named Donna Schulze reopened the case and talked to Olmo, who said that while he was not a licensed physician, he was entitled to use the term doctor. The board closed the case again, this time over Schulze's protests, and subsequently fired her. At the end of August, Schulze filed a whistle blower suit against the Board of Medical Examiners. Her two-page petition is generally worded, and Schulze's lawyer, Charles Herring, refused to elaborate on it. But it seems to indicate that Schulze is blowing her whistle over the failure of the medical board to press its investigation of the surgical assistants. The medical board has not filed a response to the suit, and a lawyer for the board would not comment.

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