Legally Speaking

NACA Report November 2013

The fall meeting of NACA was attended by 17 attorneys representing Florida, California, Louisiana, Texas, Missouri, Kansas, Arizona, New Jersey, South Carolina, New York, and the American Chiropractic Associations.

Discussions were held in numerous areas, and the following represents a summary of the information received.

There appears to be an increase in the number of stroke cases reported to malpractice carriers. This does not necessarily represent an increase in the number of incidents, however, it is felt it does represent an increase in the number of reported cases. The reason for the increase in reported cases revolves around numerous groups, particularly in Connecticut, that have targeted chiropractors as the cause of stroke incidents.

In addition, it was felt that the American Medical Association has been emphasizing the reporting of all stroke incidents where a chiropractor is involved. It appears that an emergency room doctor and/or a primary care physician will report the cause of a stroke to be a chiropractor, where a patient has visited a chiropractor within 6 months of the stroke incident. We were supplied with a letter from a group of physicians, in writing, that encourage its member physicians to point the finger at chiropractors in all incidents of reported stroke. This is alarming as we know the statistics are one in a million. It was recommended that state associations attempt to educate and attempt to join forces with local medical associations to prevent blanket accusations.

It was also discussed concerning the recognition and treatment of potential stroke patients. There was an entire one hour seminar given on recognizing and treating stroke. This was presented by Dr. Steve Foreman D.C., considered a premier expert in the area of stroke and chiropractic. He has testified in numerous cases in California and has an entire program on recognizing and preventing problems with stroke. The data supports minimizing the effects of a potential stroke when the chiropractor recognizes the symptoms and reacts within the first 60 minutes of the incident. Typically, taking longer than 60 minutes to react and seek treatment increases the likely hood of permanent damage due to stroke.

It was also recommended that chiropractors amend their informed consent forms to include increased information concerning the risk of stroke. Even though this was discussed that this would discourage patients from treating, it was hoped that the benefit outweighed the risk when defending stroke cases in an action based on malpractice. NACA will be coming out with a recommended form for the informed consent for doctors to use.

One of the problems in attempting to educate the chiropractic population concerning stroke and risk is that it unduly highlights the risk of stroke for malpractice attorneys and any organizations that are anti-chiropractic. Thus, it was recommended that each association present a seminar not focused on stroke but focused on emergency procedure or emergency protocol for chiropractors within their own offices. In labeling it “emergency protocol” it will not unduly highlight the risk of stroke.

Rhode Island reports that a very favorable ERISA decision has been issued in the Blue Cross Blue Shield class action case. This decision highlights the benefits of using the ERISA appeal protocol to challenge request by insurance companies for recoupment and/or reimbursement. NACA will create a form letter that can be used by members of our association to respond to any request of reimbursement or recoupment from an insurance company. It was also discussed that we need to revisit the assignment of benefits issue. I indicated to the NACA members that Arizona has a ban against assignment of benefits. However, discussion was held concerning an assignment of benefits strictly limited to representation of a patient and eliminating any language concerning payment and/or reimbursement. In other words, if you remove the assignment of benefits language that relates to payment, Arizona may recognize an assignment with benefits for representation purposes. This would be important because it would allow a doctor to represent his patient during the appeals process and it is likely a doctor would be more conversant in ERISA appeals and language than his patient.

Tom Daly, representing the American Chiropractic Association, reported that the ACA is trying to convince CMS to include modalities and x-rays in their reimbursement. This would be a huge victory for the profession as it would allow a higher reimbursement by Medicare and Obama Care. Apparently, COCSA wrote a letter to CMS to convince them to allow these types of reimbursements. We were requested to check with our own state association to determine whether or not we have joined in that letter. If we have not, we need to contact COCSA and inform them that we agree to join in this letter.

We had quite a large conversation concerning section 2706 of Obama Care. This is the section that includes language concerning equality and equal reimbursement. It was thought that the equality previsions apply and would supersede any state provisions that allow discrimination. I explained that our unfair claims practices act was interpreted as not being mandatory and was at the discretion of the Director of Insurance. It was felt by the group that Obama Care provisions, specifically 2706, would supersede our state law and require enforcement. This would be enforced at the health and human services level and not at the state level. The only concern is that you would have to go through a state appeal process first before you were able to reach the level of federal enforcement.  It was felt that the wording of the Obama Care Plan will allow for the HHS secretary to force a state to comply with equality laws this is important because the federal statute has teeth and specific penalties so it is much better than the Arizona Statute.

A disturbing trend was noted in that some insurance companies in the East are attempting to avoid paying chiropractors. The way they avoid any equality laws is to say that chiropractors are covered under the health insurance policy; however manipulation and subluxation are not covered.

It was recommended that our state association encourage our federal delegation to support Obama Care and not allow the equality prevision to be stripped from the overall plan. We should write our senators and our representatives to indicate our support for the Obama Care Plan. I requested that the ACA prepare a standard letter that they want our patients to send to our federal delegation. I should be receiving those within the next few weeks.

Texas reported that there is a huge threat to the profession pending in Texas State Court. Specifically, a state court in Texas has determined that chiropractors cannot diagnose. It was recommended that if our state statute does not contain language that specifically allows a chiropractic physician to diagnose, we attempt to include language now before the Texas trend becomes national. In addition, they are also trying to limit chiropractor’s ability to do acupuncture.

Lastly, there is a movement in Kansas that is defining surgery as being anything that changes the tissues of the body. Some insurance companies in Kansas are using this definition to refuse to pay chiropractors for laser therapy. Their argument is that lasers change the tissue and, therefore, is surgery.

Florida brought up an ethics consideration concerning whether or not a product should be allowed at a state convention that has not been scientifically proven to be effective and/or may not provide the relief indicated in the literature handed out by the vendor. It was questioned whether or not the association has a duty to investigate the claims of its vendors. I indicated that we typically issue a disclaimer discussing that we do not recommend or endorse products. Some of the attorneys at this meeting felt that was not enough to completely protect the association. I still feel we do not have a duty to investigate.

A discussion was held concerning the switch over from ICD9 codes to ICD10 codes. A group from California will be going around the states to present seminars and education on how to build with new codes.

A long discussion was held concerning HIPAA compliance and that compliance training should take place within a doctor’s office. It appears that this will be a new focus for audits and federal penalties for HIPAA violations are severe.

The next meeting of NACA will be in Portland, Maine in June 2014.