By Alexander Eisner, Esq.
Nov 1, 2021
Despite sitting through two hours of mandatory ethics and law CE every year, dozens of doctors are still losing their licenses annually due to completely avoidable rule violations. While intentional and criminal violations are certainly different, the majority of these avoidable violations are as frustrating to read about as they are devastating to the lives and careers of these otherwise good doctors. So, here's a crash course in how to sidestep accidental violations and keep your license.
Kickbacks: Many Shapes and Sizes
Everybody knows you can't send your patient to get surgery in exchange for a monetary kickback from the surgeon or hospital, but many don't realize how much bigger the kickback rule actually is. California's rule (which is strikingly similar to most other states' rules) is codified in the California Board of Chiropractic, Rules and Regulations, Section 317(t) and states that "the offering, delivering, receiving or accepting of any rebate, refund, commission, preference, patronage, dividend, discount or other consideration as compensation or inducement for referring patients to any person" constitutes "unprofessional conduct."
You will notice right away that unlike many of the other regulations which provide lots of "wiggle room'"to argue a violation was or wasn't committed [i.e., § 317(q), "the participation in any act of fraud or misrepresentation"], the kickback rule is exhaustive and all-encompassing. To put it plainly, the receipt of anything of value in exchange for a referral to anyone for any reason is a violation of this rule.
By way of example, I was asked a few months ago by a chiropractor whether an offer he received would be considered a kickback. He was offered a $20 online credit to a vitamin shop for each patient of his who bought vitamins there and used a special discount code. He argued that he had been referring his patients to this website to buy their vitamins for years and never received anything before, so he didn't see why this would be a problem.
I explained that a $20 online credit is a "discount" or "other consideration" that he would be "receiving or accepting" "as compensation ... for referring patients to any person." That is in violation of § 317(t), which is an offense for which he could lose his license. Ultimately, he agreed that $20 to a vitamin shop wasn't worth his livelihood.
Vaccination and Spinal Manipulation
I know in 2021 this is an extremely controversial subject; however, it is more important now than ever to understand § 317(x), which states that, "the offer, advertisement, or substitution of a spinal manipulation for vaccination" constitutes unprofessional conduct.
However you feel about vaccines, you cannot claim a chiropractic adjustment can take the place of any vaccine. Doctors are absolutely being cited for this – especially those advertising such things on their websites. It makes for a really easy "investigation" by the chiropractic board.
§ 317(d) states that "clearly excessive" treatment can constitute unprofessional conduct. This is one where the board left themselves plenty of room for argument. The most common way doctors run afoul of this rule is by failing to document medical necessity.
In a PI context, for example, ordering an MRI may seem like a standard procedure; however, make sure you are documenting why you believe an MRI is necessary to avoid accusations of excessive diagnostic procedures / treatment.
Failure to Release Records
Chiropractors in California (again, similar elsewhere) are required by the Health and Safety Code [§ 123110(b)] to release patient records within 15 days of receipt of a request. This is a relatively easy mistake to make when things get busy; and also the type of violation that can so upset a patient that they report it to the licensing board.
Your office should have a protocol in place to handle requests for records (both from the patient and their "personal representative"; i.e., attorney) such that they are certain to be produced in a timely fashion.
Are You Skipping CE?
This is probably the #1 way chiropractors get themselves in trouble with their chiropractic board. Chiropractors are subject to 24 hours of mandatory continuing education every year. [§ 361(e)]. There are additional restrictions about the categories these hours must fulfill (i.e., ethics and law, history taking, and chiropractic manipulation techniques).
This rule is subject to audit, so doctors can go years without realizing they are in violation, only realizing once they receive a notice of audit at which point it is too late. Make sure you not only get your 24 hours of CE taken care of every year, but also that you keep a record of those hours in case you are ever audited.
Editor's Note: The columnist references California law throughout this article (he practices there), but notes that rules are similar in most other states. If you have any questions or concerns about your compliance with any of the above, contact your state board for clarification. The author also provides his email address to answer any questions.
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