Articles August 1, 2014

State Boards Continue Expanding Range & Nature of Their Regulatory Reach – Are You Covered?

By Stuart E. Hoffman, DC, FICA
ChiroSecure President

For the past several years, the chiropractic profession has witnessed a growing trend on the part of some state chiropractic boards in which actions against practitioners are being taken on the basis of questions of utilization and procedure that have never been a part of board scrutiny. Today, apparently in response to pressure from third-party payment agencies, or some misplaced desire to re-define the norms of chiropractic practice, some boards have acted against practitioners for “over utilization,” x-ray policies and very general communications with the public. These types of board actions clearly push the envelope into new territory and have many believing that such boards have grossly exceeded their authority. Still, unchecked by the courts or the state legislatures, such boards can lay de facto claim to new authority, and this means that you will need to be on your guard even more than in the past.

Focusing on issues such as “medical necessity” and utilization, some boards have sought to enact regulations that would hold a provider liable for charges of “unprofessional or dishonorable conduct” if the board determines that care delivered did not meet their particular standard for “medical necessity.”

The language “medically necessary” has become an insurance term, not a quality of care term. This language has been cynically usurped by elements of the insurance industry and subverted and misused as a hammer and lever to limit the clinical range of the activities of doctors of chiropractic via extra-legislative means, with the objective of denying payment for care. Such economic motives have led many insurance companies, and those in their pay, to make demonstrably absurd claims, frequently before state regulatory boards, regarding the appropriateness of care with the sole objective of what can rightfully be considered cheating beneficiaries and providers alike, out of payment for legitimate services. Such claims have needlessly caused great disruption to the lives and practices of honorable practitioners acting within the law, eroded the credibility of the profession at large with policy makers and the public, and most importantly of all, denied consumers care they need and have paid for through insurance premiums.

Real cases highlight the list of strange and completely unforeseen situations in which DCs are finding themselves. In one state, a doctor was cited for misleading the public on the basis of the content of articles published in recognized journals posted or linked on his practice website. In another case, a DC was cited for overutilization for seeing a patient 12 times following a high-speed rear-end auto collision. Still another doctor was cited for failure to repay an insurance company for the care of a small child because no “series” of x-rays was taken, in spite of the fact that every safety and utilization guideline states that x-rays of children are to be avoided except in very specific situations, of which this was not one.

The source of this new wave of complaints is also of curious interest because almost none of these complaints dealing with practice norms come from consumers. Boards are taking the initiative themselves, responding to third-party payers, and sadly, other chiropractors, as the basis for their aggressive actions. The shaky ground that they are moving onto, however, has also prompted a number of lawsuits by the DCs who are on the receiving end of such complaints, and those DCs almost always win in the courts. The financial cost and distraction of such a suit is a very high price to pay, especially when in the eyes of most chiropractors and chiropractic organizations, the behavior cited as inappropriate is seen as well within the established norms of care.

In recent years, the chiropractic profession has witnessed countless examples of paid chiropractic consultants attacking the care and decision making processes of honorable doctors of chiropractic acting within the law. Such consultants routinely resort to such tactics as perverting the research record, making absurd claims on what is and is not appropriate care, all based on the economic imperatives of those paying them, and reducing the regulatory process to a shameful farce. This willingness on the part of many paid chiropractic consultants to make any claim for monetary reasons, is one of the most disgraceful, shameful and destructive elements in the chiropractic profession today.

Making medical necessity a condition of chiropractic service delivery and subject to board interpretation as “unprofessional or dishonorable conduct” also raises profoundly serious questions about possible limitations on consumer freedoms to seek and obtain any legally authorized chiropractic service, including maintenance and preventive care, exceptionally frequent care, etc. Action by the any board to curb consumer rights via the imposition of “medically necessary” limitations on providers would very likely be found to be unacceptable and beyond the authority of a board by state courts, but such rules would still have a negative impact on consumer rights to contract and act in the health care marketplace, according to their own determinations of need and appropriateness.

Every doctor of chiropractic should be aware of this new exposure and consider the following preventive steps to protect yourself and your practice from such harassment actions:

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  • Read the code and regulations in your jurisdiction and know exactly what the law says. Knowledge is power, and such knowledge allows you to be immediately aware of any instance in which it appears that the board in your jurisdiction is acting beyond their legitimate authority.
  • Join your state organization and the national organization of your choice and immediately seek their assistance, as well as that of your state legislator and state senator, and above all, contact your malpractice carrier to respond to such abuse of power.
  • Know who is on your chiropractic board and, either independently or through your state organization, monitor their actions and do not hesitate to mobilize your colleagues in protest through an organized appeal to those who have authority over the board, either the governor or attorney general, and ultimately the state legislature, to bring them back into line.
  • Be prepared to defend your right to practice within the law, and consult legal counsel and other authorities to determine your exact status immediately upon hearing of any potential complaint.
  • Make sure you have malpractice insurance that includes state board defense as a component of your coverage.

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ChiroSecure has made state board defense an integral part of the coverage it offers its insured practitioners. ChiroSecure coverage is the best in the profession, with $50,000 Defense for state board Hearings, HIPAA, Billing Errors and insurance and Medicare audit coverage. It is not just a matter of the quantity of ChiroSecure coverage which leads the industry, but of quality. It is true that some other carriers will offer some board coverage, however some of the other that have Board coverage in the policy may not offer coverage for defense against claims by insurance companies, advertising, etc. They may only cover Board Hearings related to providing or failing to provide professional services for the patient.

Do you know what your coverage will do for you when the chiropractic board comes knocking on your door? Better yet, call ChiroSecure today and find out how you can have the best protection on the market, at highly competitive rates. The result will be both excellent coverage and peace of mind. You deserve both. Call ChiroSecure toll-free today at 1-866-80-CHIRO or 1-866-802-4476, or visit ChiroSecure on the web at http://www.chirosecure.com.

ChiroSecure is the only malpractice coverage endorsed and approved by the International Chiropractors Association. The ChiroSecure program is administered by Stuart E. Hoffman, DC, FICA, a highly experienced doctor of chiropractic and licensed insurance broker, who knows the intricate details of daily practice and who can give you the best advice based on his unique knowledge of both the insurance world and the world of chiropractic.