Blog, Live Events February 22, 2021

Compliance Risks Associated with Nutrition and Wellness Programs

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Good afternoon, everybody. My name is Michael Miscoe with Miscoe Health law, and our topic today is, uh, compliance risks that, uh, are associated with nutrition and wellness programs. Um, as many practices look for, um, cash options in light of, uh, diminished, uh, insurance reimbursement, third party issues, um, nutrition and wellness programs, uh, seem to fit well within, uh, the chiropractic space. Uh, but there are a number of issues that you need to be aware of. They don’t come up often, but when they do they use, uh, they tend to, uh, cause, uh, uh, big potential problems, uh, for practices. And the first thing I want to talk about is make sure, uh, because this is a national, uh, presentation, uh, we can’t talk about any state and specific, but you need to be very, very conscious of what your scope of practice is. Um, as, uh, most on this, uh, webinar or likely doctors of chiropractic, you have to look at your chiropractic scope of practice, specifically to how chiropractic is defined.

In some States, it is very, very, uh, keyed towards subluxation of the spine and associated, uh, neuromusculoskeletal conditions. In which case anything you do has to track back to, um, uh, identification of a, uh, uh, subluxation, uh, associated neuromusculoskeletal conditions for which nutrition, especially if it’s geared towards weight loss, um, has to be a comorbid factor, uh, for example, a patient that is morbidly obese, uh, and that causes musculoskeletal stress and recurrent back pain or neck pain, so forth. And so on. There has to be an examination, a diagnosis of at least subluxation, uh, complicating condition of, uh, uh, obesity and for which nutritional counseling, uh, would then be appropriate. And therefore, within your scope of practice, some States have much more broad, uh, of practice of recently evaluated case in Utah, uh, where there really does not need to be a traditional chiropractic examination and identification of subluxation.

Uh, so, but because scopes, uh, vary so so much, uh, here in Pennsylvania, for example, uh, without the chiropractic examination identification, a subluxation, uh, going straight to nutrition and weight loss, uh, is, is not within the chiropractic scope of practice. So, uh, be very, very mindful of your scope of practice. Second thing, marketing, you have to be very, very cautious about your marketing, not only that your marketing, um, you know, nutrition and weight loss within your scope of practice, but you’re not making any representations that would either be considered deceptive or, um, uh, inconsistent with what you, uh, can treat as a doctor of chiropractic. Uh, I’ve seen concerns be raised by licensure boards, uh, due to complaints where chiropractors or a doctor of chiropractic, uh, nutrition and weight loss program, since your boards, uh, due to complaints where chiropractors or a chiropractor advertising, uh, nutrition, weight loss programs that, um, uh, where they’re offering potentially to treat, uh, BDS neuropathy, uh, reducing A1C, uh, get off your meds, offering, uh, improve your wellness as a defense against COVID all kinds of things, um, that you really can’t say because those first of all, those conditions are outside your scope of practice.

Number one, and number two, um, there’s, uh, not crystal clear, medically accepted evidence that, that those programs are an effective treatment for those kinds of medical conditions. So you need to be very, very cautious. Uh, and when your licensure board is asking you questions, what training do you have in the diagnosis or treatment of diabetes or a diabetic neuropathy, uh, things of that hypertension, things of that nature. Um, those become very, very uncomfortable questions to develop answers to. Uh, so you need to be very clear, uh, that you are marketing a nutrition and a wellness program for general health improvement, uh, or where your licensure, uh, restrictions, uh, limit you to treating conditions that relate to subluxation and articulations of the spine and or extremities, uh, that your, your marketing is clear, uh, that, that, uh, those programs are designed, uh, as an adjunct to chiropractic traditional chiropractic treatment, um, patient testimonials, uh, oftentimes, uh, if you’re going to use testimonial millennials in your advertising, you have to be very, very careful about what your patients are going to say, um, because their testimonial, uh, becomes your marketing as to what it is that you’re doing.

Uh, so your patients need to be very clear about what you’re doing, the limited purpose for what you’re doing, if it’s, uh, nutrition and weight loss, or if it’s general health improvement, any adjunct benefits that they get, they need to be very clear that when it comes to medication modification, that it was their medical provider, uh, who provided ongoing management of their medical conditions and potentially ordered changes to their medication regimen. Not that there’s a direct link between your treatment, your nutritional counseling, medical foods that you’re providing, or any of that stuff as a direct treatment for some medical condition, because that will lead to significant concern, uh, by licensure boards in the, in the face of a complaint. And, and this is where, and while there is potentially consumer fraud or consumer protection issues, uh, under various, uh, uh, consumer protection statutes, licensure liability is the biggest concern.

Um, it is, uh, uh, these, uh, the licensure board folks, uh, hold your collective destiny in their hands, uh, so to speak. Uh, and you certainly, uh, don’t want to create a problem with your licensure board and take unnecessary risks by getting off the beaten path, uh, beyond your scope and or with your marketing, that that’s potentially deceptive, uh, guaranteeing cures for conditions that you’re not licensed to treat so forth. And so on, as far as minimizing risk, make sure that you have, um, your, uh, advertising, if you’re advertising this reviewed, uh, by an attorney who is familiar with your licensure board statutes and licensure board defense, um, I, you know, I do not do that work. I usually, uh, sub that out to local counsel who is familiar with the particular state licensure board. Um, but they can give you the best advice based upon cases.

They seen, they know the mood of the board, uh, as to what is likely going to be objectionable and what is not watch your, what you put on your websites. Um, that’s fair game, uh, marketing materials. They will request disclosure of all that. So if you have community events, they’ll want to see all the brochures, you handout, all the materials that you give to patients, uh, any slides for any, uh, presentations you give webinars and whatnot, uh, and you would be required to disclose all that information. Um, anything that you publish anywhere at any time is fair game for the board to evaluate and make a determination as to whether it’s deceptive, you’re offering the tree conditions outside your scope, uh, in which case, if they come to that conclusion, they can do a lot of things. They can find you, they can suspend your license.

Um, they can do both of the above, or if it’s particularly egregious or leads to patient harm, uh, they could potentially do more than suspend your license. So, uh, you need to be very, very cautious. Last point, is that when you are offering to treat somebody outside your scope of practice, uh, whether, uh, intentionally or unintentionally, uh, through your marketing, uh, where a patient gets, the idea that you’re treating their diabetes, their perception is going to rule the day. And if something happens and they quit taking their medication or whatever, um, and, and then they have an adverse effect and you get blamed, um, there there’s potentially significant malpractice liability associated with that, especially where you’re treating outside, uh, your published scope of practice. That becomes what, um, in the, in the tort realm is called negligence, per se. Um, and, and it means that damages are assumed, uh, so that the, uh, uh, the person who suffered harm doesn’t really need to prove damages.

They just need to put up a reasonable amount and your malpractice carrier is gonna pay. Um, so, uh, those are things, uh, I’m not saying don’t do nutritional wellness programs, do them, but mind your P’s. And Q’s, uh, because I don’t see a lot of cases like this, but I’ve seen a few recently, uh, and they come up in frequently through the weirdest ways. You either get dimed out by a, um, uh, competing chiropractor. Who’s potentially losing patients to you. And they dine the out to the board. A patient gets upset because they paid money and they didn’t get results that they thought that they would get, and they make a complaint to the board. Those are usually how these cases arise and, or the board independently becomes, uh, aware of your marketing and, and they, uh, um, request information out of concerns of their own, um, uh, creation.

So watch your PS and QS study your scope, get your marketing reviewed by a competent legal counsel, um, and, uh, and be very, very clear to patients, uh, that you are not offering to treat any condition or disease, uh, medical condition or disease. You’re not suggesting that if they’d go through your program, that they’ll, uh, not need their diabetes medication or that they, they can get off, uh, medical management, you have to defer those decisions and make clear that those are decisions, uh, for their medical providers. You’re best off to coordinate, uh, what you’re doing with their medical provider, uh, where you can, and, uh, uh, and that’ll provide you some cover. Uh, thanks for tuning in. I hope this was helpful, and hopefully you won’t ever run into any problems on this front till next time. Have a great day.

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