1 Parker College of Chiropractic Jesse Green, J.D.Chiropractic Ethics Parker College of Chiropractic Jesse Green, J.D.

2 Introduction Objectives Outline Supplemental Materials

3 General Principles of EthicsA. Distinction between "Morals" and "Ethics" B. Cardinal Moral Virtues C. Ethical Principles D. Decision Making Models E. Formal Codes of Ethics

4 Morals and Ethics Morals are the individual’s ability to distinguish between right and wrong. Internal Ethics are society’s determination of right and wrong. External

5 Common Moral Virtues Prudence Justice Temperance FortitudeOther Moral Virtues

6 Ethical Principles Autonomy Beneficence Nonmaleficence Justice

7 Decision Making ModelsUtilitarianism Deontology

8 Formal Codes of Ethics Why Should a Profession Have a Code of Ethics?Voluntary v. Mandatory Codes Misconceptions Overview of ACA Code Overview of Texas Chiropractic Act

9 Why have a code Expected by society Express higher standardsGuidance in decision-making Uniformity in decision-making Respond to criticism Due Process Preempt rules imposed by third-parties

10 Voluntary or Mandatory Code?ACA Code is voluntary Texas Chiropractic Act is mandatory Distinguish statute and administrative rules

11 Misconceptions The Patient Was Not Injured Good Faith is not a Defense

12 ACA Code General Goal: The Greatest Good For The PatientResponsibility to the patient Responsibility to the public Responsibility to the profession Administrative Criticisms Vague Business oriented Protective of Profession Mirrors the law

13 Vagueness "Doctors of chiropractic should be honest and endeavor to practice with the highest degree of professional competency and honesty in the proper care of their patients.” (A.4.) "Doctors of chiropractic should maintain the highest standards of professional and personal conduct, and should refrain from all illegal conduct.” (A.10.)

14 Business Oriented "Doctors of chiropractic are entitled to receive proper and reasonable compensation for their professional services . . .” commensurate with the value of the services they have rendered taking into consideration their experience, time required, reputation and the nature of the condition involved. Doctors of chiropractic should terminate a professional relationship when it becomes reasonably clear that the patient in not benefiting from it. Doctors of chiropractic should support and participate in proper activities designed to enable access to necessary chiropractic care on the part of persons unable to pay such reasonable fees. (A.9.)

15 Protective of Profession"Doctors of chiropractic should promote public confidence in the chiropractic profession” (C.2.)

16 Mirrors Legal Requirements"Doctors of chiropractic should take reasonable steps to protect their patients prior to withdrawing their professional services. Such steps shall include due notice to them allowing a reasonable time for obtaining professional services of others, and delivering to their patients all papers and documents in compliance with A5 of this Code of Ethics.” (A.3.) "Doctors of chiropractic should employ their best good faith efforts that the patient possesses enough information to enable an intelligent choice in regard to proposed chiropractic treatment. The patient should make his or her own determination on such treatment.” (A.12.)

17 Texas Chiropractic ActLaundry List Vagueness 2. Engaging in deception or fraud in the practice of chiropractic; 7. Engaging in grossly unprofessional conduct or dishonorable conduct of a character likely to deceive or defraud the public; 8. Having a habit of intemperance or drug addiction, or another habit that, in the opinion of the Board to endangers the life of a patient; 9. Using an advertising statement that tends to mislead or deceive the public; 18. Failing to use proper diligence in the practice of chiropractic or using gross inefficiency in the practice of chiropractic;

18 Regulations Grossly Unprofessional ConductGrossly unprofessional conduct when applied to a licensee or chiropractic facility includes, but is not limited to the following: (1) maintaining unsanitary or unsafe equipment; (2) failing to use the word "chiropractor," "Doctor, D.C., or "Doctor of Chiropractic, D.C. in all advertising medium, including signs and letterheads; (3) engaging in sexual misconduct with a patient within the chiropractic/patient relationship;

19 Regulations Grossly Unprofessional ConductGrossly unprofessional conduct includes, but is not limited to the following: (4) exploiting patients through the fraudulent use of chiropractic services which result in finical gain for a licensee or a third party. The rendering of chiropractic services becomes fraudulent when the services rendered or goods or appliances sold by a chiropractor to a patient are clearly excessive to the justified needs of the patient as determined by accepted standards of the chiropractic profession; (5) submitting a claim for chiropractic services, goods or appliances to a patient or a third-party payer which contains charges for services not actually rendered or goods or appliances not actually sold; (6) failing to disclose, upon request by a patient or his or her duly authorized representative, the full amount charged for any service rendered or goods supplied. Section 75.1

20 Regulations DiligenceA lack of proper diligence in the practice of chiropractic or the gross inefficient practice of chiropractic includes but is not limited to the following: (1) failing to conform to the minimal acceptable standard of practice of chiropractic, regardless of whether or not actual injury to any person was sustained, including, but not limited to: (A) failing to assess and evaluate a patient's status; (B) performing or attempting to perform procedures in which the chiropractor is untrained by education or experience; (C) delegating chiropractic functions or responsibilities to an individual(s) lacking the ability or knowledge to perform the function or responsibility in question; or (D) causing, permitting, or allowing physical injury to a patient or impairment of the dignity or the safety of a patient.

21 Regulations Failure To Respond to Board Inquiries(a) Each licensee shall promptly respond to Board inquiries concerning complaints of professional misconduct by the licensee (b) Responses shall be in writing and shall be directed to the attention of the Board's enforcement committee. (c) Failure to timely respond to a complaint shall be an independent ground for disciplinary proceedings.

22 Regulations Public Interest Information(a) each licensee is required to: display a placard or sign furnished by the Board containing the name of the Board, mailing address, and telephone number for the purpose of directing complaints to the Board. (b) The placard or sign shall be conspicuously and prominently displayed in a location where it may be seen by all patients.

23 Regulations AdvertisingA licensee shall not, on behalf of himself, his partner, associate, or any other licensee affiliated with him, use or participate in the use of any form of public communication which contains a false, fraudulent, misleading, deceptive, or unfair statement of claim, or which has the tendency or capacity to mislead or deceive the general public. Public communication-Any written, visual, or oral statement or other communication made to or distributed, or intended for distribution, to a member of the general public or the general public at large.

24 Regulations Chiropractic Facilities(a) Any facility providing chiropractic care must be registered with the Texas Board of Chiropractic Examiners. (b) Facility Registration must be renewed annually. (c) Changes of physical address and/or ownership interest must be filed with the Board within 30 days of the change.

25 Regulations Default of Student Loan.The board shall not renew a license of a licensee who is in default of a loan guaranteed by the Texas Guaranteed Student Loan Corporation or a repayment agreement with the corporation except as provided in paragraphs (2) and (3) of this subsection. 22 T.A.C. § 73.2

26 Frequency/Duration of TreatmentConsumer Reports found that “chiropractors were likely to take unnecessary x-rays, perform manipulation on infants and children, propose inordinately lengthy treatment plans, and promote chiropractic treatment for serious disorders that needed medical care.” Consumer Reports, June 1994. A chiropractor convicted of Medicaid fraud has been sentenced to 21 months in federal prison and ordered to pay $800,000 in restitution. The chiropractor admitted that he used marketers to recruit low-income patients covered by Medicaid and provided treatment which was medically unnecessary.

27 General Considerations Basic RulesACA Code Doctors of Chiropractic should attend their patients as often as they consider necessary. (A.2.) Texas Administrative Code Grossly unprofessional conduct includes, but is not limited to the following: (4) exploiting patients through the fraudulent use of chiropractic services which result in finanical gain for a licensee or a third party. The rendering of chiropractic services becomes fraudulent when the services rendered or goods or appliances sold by a chiropractor to a patient are clearly excessive to the justified needs of the patient as determined by accepted standards of the chiropractic profession.

28 Mercy Guidelines Acute Disorders: After a maximum of two trial therapy series of manual procedures lasting up to two weeks each (four weeks total) without significant documented improvement, manual procedures may no longer be appropriate and alternative care should be considered. (8.4.1)

29 Mercy Guidelines Response to insurance companyGuidelines are voluntary Not a basis for insurance company decisions Use of extracts Consider other factors Documented improvement

30 Causes of Unnecessary and Excessive Treatment or Diagnostic Testing1. Routine Overuse 2. Ineffective History Taking 3. Profit-motivated Use 4. Self-referral 5. Quotas in the Clinic 6. Defensive Medicine 7. Advertising Free X-rays 9. Personal Injury Cases 10. Love of Chiropractic 11. Patient Dependence

31 Routine overuse X-rays: New Tests Establish Need Quality and Safety“The ACA stands on record that there should always be clinical evidence of need for diagnostic X-ray examinations before such are performed. Use of X-ray as a routine procedure and from patients’ self-referral is not good practice and is not condoned.” Quality and Safety Repeat X-rays are rarely justified New Tests

32 Ineffective History Taking% of diagnoses To effectively take a history, the Doctor must: obtain an appropriate description elicit additional information determine undisclosed factors Language Parameters of interview process: Attentiveness Facilitation Collaboration

33 Profit Motivated Use Subtle or Overt“The ACA vigorously condemns suggestions which infer the application of chiropractic treatment primarily for personal monetary gain rather than for the patient’s health, safety and welfare.”

34 Self-Referral How Many Doctors? Does it effect their decisions?Why do doctors invest in imaging centers? Rules

35 ACA Policy The ACA strongly discourages the referral of patients to clinical or therapeutic facilities in which the health care provider has ownership or investment interests, when that facility is outside the provider’s office practice at which he directly provides care or services. The ACA recognizes that financial interests in such facilities by referring health care providers may constitute an inherent conflict of interest between the financial interest of the referring provider and the health interest of the patient. The ACA cautions its members that it regards financial conflicts of interest which may increase the patient's overall health care costs to be unacceptable.

36 FCLB Guidelines Referral of a patient to a facility in which the licensee has a financial interest is prohibited, unless the patient is informed of the relationship.

37 Medicare/Medicaid Stark Law prohibits self-referralA physician may not refer a Medicare or Medicaid patient to another entity for designated health services, if the physician (or an immediate family member) has a financial relationship with that entity. Financial Relationship includes Ownership Compensation arrangement Direct or indirect

38 Medicare/Medicaid Designated Health ServicesClinical Laboratory Services Physical Therapy Services Occupational Therapy Services Radiology Services, Including MRI, CT and Ultrasound Radiation Therapy Services Durable Medical Equipment and Supplies Parenteral and Enteral Nutrients, Equipment and Supplies Prosthetics, Orthotics, and Prosthetic Devices and Supplies Home Health Services Outpatient Prescription Drugs Inpatient and Outpatient Hospital Services

39 Medicare/Medicaid Self-referral may be criminal: 5 years in prisonExceptions Group Practice In-office Ancillary Services Prepaid Plans Publicly Traded Securities and Mutual Funds Rural Provider Rental of Office Space Rental of Equipment Bona Fide Employment Personal Service Arrangements Physician Recruitment Isolated Transactions Arrangements With Hospitals Certain Payments by a Physician Self-referral may be criminal: 5 years in prison $25,000 per occurrence

40 Quotas in the Clinic Defensive Medicine

41 Advertising Free ServicesThe American Chiropractic College of Radiology requires the following disclaimer on all ads for free x-rays: “No such x-ray will be given unless there is prior observable clinical need for it.” The ACA strongly condemns as unethical and dangerous the practice of advertising free spinal X-ray examinations and other indiscriminate uses of X-ray as a part of practice building schemes and/or for other equally unethical purposes.

42 FCLB Guidelines Advertisements offering free or discounted service must include the licensee's usual charge for this service. In the case where the service offered is usually provided without charge, the advertisement must state that there is usually no charge for this service. Diagnostic services offered without charge, such as exams or x‑rays, must be necessary and sufficient to reach a diagnosis. X‑rays must be diagnostically complete. Patients receiving free services must sign a disclosure statement which clearly describes the free service, and informs the patient of services for which there is a charge. When the advertisement offers free services for a period of time, the patient must sign a disclosure statement which clearly states when the free service ends. Such disclosure statements are part of the patient's medical record, and must be included in any submission of claims to the party responsible for bill payment.

43 Personal Injury Cases Love of Chiropractic ACA policy on Diagnosis: The chiropractic curriculum is oriented toward patient management, that is, to the recognition of the measures best suited to the restoration and maintenance of the patient’s good health (whether such measures are applied by a doctor of chiropractic or by another health professional on referral.) Present day chiropractic does not hold that the subluxation is the only cause of disease. Whatever may have been said in chiropractic literature years ago, today's chiropractic education and practice recognizes multiple causes of, and multiple methods of treatment for, disease. The doctor of chiropractic must first evaluate the needs of the patient before administering any type of care. If he should determine that the case is within his scope, he proceeds to provide appropriate care. But if he determines that the patient requires another type of care, he refers the patient to that method which he believes is most advantageous. Patient Dependence

44 General Guidelines Know when treatment or diagnostic tests are appropriate Stay current with new technology Stay current with safety/quality procedures Document the need

45 ACA Policy Third party contracts usually call for a direct relationship between covered services and medical necessity. There is also much concern in this area by federal and state legislators, particularly as it pertains to quality assurance and professional standards review organizations. The ACA agrees that there should be a responsible position relative to this by our profession and has researched the subject as it is understood by numerous of the third party payers. The ACA position refers to those appropriate examinations, therapeutic substances, and treatment procedures that are used by licensed practitioners to diagnose and treat patients with a specific condition. Implied is the fact that the condition be a recognized one and that the examinations, tests, therapeutic substances, and treatment procedures used are based on scientific principles and studies, are generally accepted by the profession as being needed, essential, and appropriate to properly diagnose and treat patients with the particular condition. Quality and quantity of examination and therapeutic procedures must be within the norms and/or criteria established by the profession as a whole for such a condition. Implied also is the fact that there must be documentation in the medical records and/or reports to substantiate the need for the services rendered.

46 FCLB Guidelines Proper patient records must be clear and legible, and include: a. A description of the patient's chief complaint; b. A history which includes any significant events related to the chief complaint or general health history c. A record of diagnostic and therapeutic procedures including: an examination and results of that exam, a diagnosis, a plan of care, including all therapeutic modalities utilized, frequency of treatment, any changes in the plan of care, as well as the reason for changes, and a record of the patient's response to treatment.

47 Long Term Care Preventive/Maintenance Care Supportive CareAsymptomatic Preventative in nature Usually programmed intervals Supportive Care Previously demonstrated abnormality Near constant or recurrent symptoms Response to care lessens symptoms and enhances quality of life Treatment frequency governed by exacerbation of complaints

48 Mercy Guidelines Supportive Care: Treatment for patients who have reached maximum therapeutic benefit, but who fail to sustain this benefit and progressively deteriorate when there are periodic trials of withdrawal of treatment. Supportive care follows appropriate application of active and passive care including rehabilitation and life style modifications. It is appropriate when alternative care options, including home based self-care, have been considered and attempted. Supportive care may be inappropriate when it interferes with other appropriate primary care, or when the risk of supportive care outweighs its benefits, i.e., physician dependence, somatization, illness behavior, or secondary gain.

49 Mercy Guidelines Preventative/Maintenance Care: Any management plan that seeks to prevent disease, prolong life, promote health and enhance the quality of life. A specific regimen is designed to provide for the patient’s well-being or for maintaining the optimum state of health. Preventive/Maintenance care is discretionary and elective on the part of the patient. When recommended, it is necessary for the practitioner to clearly identify the type and nature of this care and to give proper patient disclosure. (13.1.1)

50 Mercy Guidelines The clinical experience of the profession developed over a period of nearly 100 years suggests that the use of chiropractic adjustments in a regimen of preventive/ maintenance care has merit. 13.1.2 Rating: Equivocal

51 Mercy Guidelines The six possible ratings are established, promising, equivocal, investigational, doubtful, and inappropriate. The first three are positive ratings, the last three are negative ratings. The primary distinction between the three positive ratings is based upon the quality of the evidence that supports the recommendation. If the evidence is anecdotal, the rating is equivocal; however, if the evidence is more “scientific,” such as a controlled, double blind study, then the recommendation receives a higher rating.

52 [T]he majority of cases seen by doctors of chiropractic are going to mechanical in nature and managed in a brief four to six week therapeutic period. This should comprise 75 to 85 percent of the patients seen in the average chiropractic office. We also expect 15 to 25 percent will have a more serious neuromusculokeletal disorder. All patients will follow a natural history of adaptive and innate healing. The doctor’s therapeutic value is likely to be its greatest within the first four to six weeks, diminishing by 90 days. The real benefits of treatment are diminished significantly by 9 months post injury. Treatment thereafter is most likely palliative In my years of practice, I have observed that patients either respond rapidly to manipulative treatment or are not good candidates for ongoing care. While chiropractic treatment may be a nonoperative alternative in the menu of conservative therapies, it must remain a cost-efficient tool in health care management In conclusion, I would propose you consider a patient’s specific diagnosis, complications, statistical track record for their condition, research, and costs when embarking upon their treatment regimen. Remember, appropriate care is good for your patient, the profession and the economy.” Gilkey, D., ACA Journal of Chiropractic, August 1992, p. 29, 30

53 Confidentiality A. BackgroundB. Statutory Protection of Confidentiality C. Extra Protections for Sensitive Information D. Exceptions to Confidentiality E. Computers and New Threats to Confidentiality

54 Background 1. Rationale for Confidentiality 2. Codes3. Contents of Records 4. Ownership of Records

55 Rationale for Rule Assurance of confidentiality is necessary if individuals are to be open and forthright with the practitioner. Patients rightly expect that such information as their health will remain private and secure from public scrutiny. Thus the principle that all doctor-patient communications are privileged and confidential. Mercy Guidelines, Recommendation 5.4.1

56 Rationale for Rule The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication. The physician should not reveal confidential communications or information without the express consent of the patient, unless required to do so by law. AMA Policy E-5.05 Confidentiality

57 Codes Hippocratic Oath ACA Code ICA Code“Doctors of chiropractic should preserve and protect the patient’s confidences and records, except as the patient directs or consents or the law requires otherwise. They should not discuss a patient’s history, symptoms, diagnosis, or treatment with any third party until they have received the written consent of the patient or the patient’s personal representative.” (A.6.) ICA Code “What a doctor sees and hears concerning each patient is privileged, and must be kept in confidence.”

58 Codes Mercy Guidelines - DefinitionRule of Confidentiality: The rule which requires that all information about a patient that is gathered by a practitioner as part of the provider/patient relationship be kept confidential unless its release is authorized by the patient or, in exceptional circumstances, serves some other overriding purpose.

59 Codes HIPAA AMA Code of Ethics AHA Patient Bill of Rights

60 Contents of Records FCLB:A licensee is required to maintain proper patient records on all patients, including family and staff members, and to keep these records confidential. Proper patient records must be clear and legible, and include: a. A description of the patient's chief complaint; b. A history which includes any significant events related to the chief complaint or general health history c. A record of diagnostic and therapeutic procedures including: an examination and results of that exam, a diagnosis, a plan of care, including all therapeutic modalities utilized, frequency of treatment, any changes in the plan of care, as well as the reason for changes, and a record of the patient's response to treatment.

61 Medicaid Regulations The facility must maintain clinical records on all patients in accordance with accepted professional standards and practice. The clinical records must be completely, promptly, and accurately documented, readily accessible, and systematically organized to facilitate retrieval and compilation of information. (a) Standard: Content. Each clinical record must contain sufficient information to identify the patient clearly and to justify the diagnosis and treatment. Entries in the clinical record must be made as frequently as is necessary to insure effective treatment and must be signed by personnel providing services. All entries made by assistant level personnel must be countersigned by the corresponding professional.

62 Medicaid Regulations Documentation on each patient must be consolidated into one clinical record that must contain-- (1) The initial assessment and subsequent reassessments of the patient's needs; (2) Current plan of treatment; (3) Identification data and consent or authorization forms; (4) Pertinent medical history, past and present; (5) A report of pertinent physical examinations if any; (6) Progress notes or other documentation that reflect patient reaction to treatment, tests, or injury, or the need to change the established plan of treatment; and (7) Upon discharge, a discharge summary including patient status relative to goal achievement, prognosis, and future treatment considerations.

63 Medicaid Regulations (b) Standard: Protection of clinical record information. The facility must safeguard clinical record information against loss, destruction, or unauthorized use. The facility must have procedures that govern the use and removal of records and the conditions for release of information. The facility must obtain the patient's written consent before releasing information not required to be released by law. (c) Standard: Retention and preservation. The facility must retain clinical record information for 5 years after patient discharge and must make provision for the maintenance of such records in the event that it is no longer able to treat patients. 42 C.F.R Sec Condition of Participation: Clinical records.

64 Ownership of Records The medical record is the property of the hospital or clinic and maintained for the benefit of the patient, the medical staff, and the hospital. (ICA Code of Ethics, Principle 1B) The American Medical Record Association considers the health record to be the property of the health facility. The information contained in the record, however, belongs to the patient.

65 Statutory Protection of ConfidentialityTexas Chiropractic Act (a) Communications between one licensed to practice chiropractic, relative to or in connection with any professional services as a chiropractor to a patient, are confidential and privileged and may not be disclosed except as provided in this section. (b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a chiropractor that are created or maintained by a chiropractor are confidential and privileged and may not be disclosed except as provided in this section.

66 Statutory Protection - Exceptions(g) Exceptions to confidentiality or privilege in court or administrative proceedings exist: (1) when the proceedings are brought by the patient against a chiropractor, including but not limited to malpractice proceedings, and any criminal or license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a chiropractor; (2) when the patient or someone authorized to act on the patient's behalf submits a written consent to the release of any confidential information, as provided in Subsection (j) of this section; (3) when the purpose of the proceedings is to substantiate and collect on a claim for chiropractic services rendered to the patient; (4) in any civil litigation or administrative proceeding, if relevant, brought by the patient or someone on his behalf if the patient is attempting to recover monetary damages for any physical or mental condition including death of the patient; any information is discoverable in any court or administrative proceeding in this state if the court or administrative body has jurisdiction over the subject matter, pursuant to rules of procedure specified for the matters; (5) in any disciplinary investigation or proceeding of a chiropractor conducted under or pursuant to this Act, provided that the Board shall protect the identity of any patient whose chiropractic records are examined, except for those patients covered under Subdivision (1) of this subsection or those patients who have submitted written consent to the release of their chiropractic records as provided by Subsection (j) of this section; (6) in any criminal investigation of a chiropractor in which the Board is participating or assisting in the investigation or proceeding by providing certain records obtained from the chiropractor, provided that the Board shall protect the identity of any patient whose records are provided in the investigation or proceeding, except for those patients covered under Subdivision (1) of this subsection or those patients who have submitted written consent to the release of their chiropractic records as provided by Subsection (j) of this section; this subsection does not authorize the release of any confidential information for the purpose of instigating or substantiating criminal charges against a patient; and (7) in any criminal prosecution where the patient is a victim, witness, or defendant; records are not discoverable until the court in which the prosecution is pending makes an in camera determination as to the relevancy of the records or communications or any portion thereof; such determination shall not constitute a determination as to the admissibility of such records or communications or any portion thereof. (h) Exceptions to the privilege of confidentiality, in other than court or administrative proceedings, allowing disclosure of confidential information by a chiropractor, exist only for the following: (1) governmental agencies if the disclosures are required or permitted by law, provided that the agency shall protect the identity of any patient whose chiropractic records are examined; (2) medical or law enforcement personnel if the chiropractor determines that there is a probability of imminent physical injury to the patient, to himself, or to others or if there is a probability of immediate mental or emotional injury to the patient; (3) qualified personnel for the purpose of management audits, financial audits, program evaluations, or research, but the personnel may not identify, directly or indirectly, a patient in any report of the research, audit, or evaluation or otherwise disclose identity in any manner; (4) those parts of the records reflecting charges and specific services rendered when necessary in the collection of fees for services provided by a chiropractor or chiropractors or professional associations or other entities qualified to render or arrange for services; (5) any person who bears a written consent of the patient or other person authorized to act on the patient's behalf for the release of confidential information, as provided by Subsection (j) of this section; (6) individuals, corporations, or governmental agencies involved in the payment or collection of fees for services rendered by a chiropractor; (7) other chiropractors and personnel under the direction of the chiropractor who are participating in the diagnosis, evaluation, or treatment of the patient; or (8) in any official legislative inquiry regarding state hospitals or state schools, provided that no information or records which identify a patient or client shall be released for any purpose unless proper consent to the release is given by the patient, and only records created by the state hospital or school or its employees shall be included under this subsection.

67 Sensitive Information1. Drug and Alcohol Abuse 2. Mental Health Care 3. HIV and AIDS

68 Exceptions 1. Patient’s Consent 2. Dangerous Patients 3. Subpoena4. Required Reports to Government Agencies 5. Incidental Information 6. Casual, Informal Patients 7. Doctor's Defense 8. Fee Collections 9. Third Party Employers 10. Deceased Patient 11. Time Limit 12. Compare the Codes

69 Patient’s Consent Requirements for Authorization Writing Signed DatedSpecify information/records covered Specify the reasons for release Specify the person to receive the records

70 Patient’s Consent - ACA CodeDoctors of chiropractic should not discuss a patient’s history, symptoms, diagnosis, or treatment with any third party until they have received the written consent of the patient or the patient’s personal representative. (A.6.) Doctors of chiropractic should comply with a patient’s authorization to provide records, or copies of such records, to those whom the patient designates as authorized to inspect or receive all or part of such records. A reasonable charge may be made for the cost of duplicating records. (A.5.)

71 Patient Consent Texas Chiropractic Act, Section 201.405Consent for the release of confidential information must be in writing and signed by the patient; a parent or legal guardian The written consent must specify: (A) the information records covered by the release; (B) the reasons or purposes for the release; and (C) the person to whom the information is to be released.

72 Mercy Guidelines 3. Authorization to Release Patient InformationWith the consent of a competent patient or guardian, records may, and in most situations must, be provided to third parties with a legitimate need for access. The patient consent should not be more than 90 days old, or as provided by law. Whenever health care information is released pursuant to authorization from a patient, documentation of the authorization should be requested and retained (except in some emergencies). If the request is for all or part of the health care record, the original record should never be released, unless compelled by law, only copies. Before the copy chart or other records are sent out, they should be reviewed to make certain they are complete. 5.5.3

73 HIPAA (1) Core elements. A valid authorization under this section must contain at least the following elements: (i) A description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion. (ii) The name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure. (iii) The name or other specific identification of the person(s), or class of persons, to whom the covered entity may make the requested use or disclosure. (iv) A description of each purpose of the requested use or disclosure. The statement ``at the request of the individual'' is a sufficient description of the purpose when an individual initiates the authorization and does not, or elects not to, provide a statement of the purpose.

74 HIPAA (v) An expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure. The statement ``end of the research study,'' ``none,'' or similar language is sufficient if the authorization is for a use or disclosure of protected health information for research, including for the creation and maintenance of a research database or research repository. (vi) Signature of the individual and date. If the authorization is signed by a personal representative of the individual, a description of such representative's authority to act for the individual must also be provided.

75 HIPAA (2) Required statements. In addition to the core elements, the authorization must contain statements adequate to place the individual on notice of all of the following: (i) The individual's right to revoke the authorization in writing . . . (ii) The ability or inability to condition treatment, payment, enrollment or eligibility for benefits on the authorization . . . (iii) The potential for information disclosed pursuant to the authorization to be subject to redisclosure by the recipient and no longer be protected by this subpart. (3) Plain language requirement. The authorization must be written in plain language. (4) Copy to the individual. If a covered entity seeks an authorization from an individual for a use or disclosure of protected health information, the covered entity must provide the individual with a copy of the signed authorization. 45 C.F.R. §

76 Patient’s Consent Cautions with Consents: Revocation of ConsentBlanket Authorization Prospective Authorization Perpetual Release General Release Revocation of Consent The patient or other person authorized to consent has the right to withdraw his consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal. Texas Chiropractic Act. Section (d). Doctor’s Lien for Unpaid Accounts

77 Dangerous Patients AIDS request for test test results spouseTexas Chiropractic Act (h) Exceptions to the privilege of confidentiality, in other than court or administrative proceedings, allowing disclosure of confidential information by a chiropractor, exist only for the following: (2) medical or law enforcement personnel if the chiropractor determines that there is a probability of imminent physical injury to the patient, to himself, or to others or if there is a probability of immediate mental or emotional injury to the patient.

78 § 81.103. Confidentiality; Criminal Penalty (a) A test result is confidential. A person that possesses or has knowledge of a test result may not release or disclose the test result or allow the test result to become known except as provided by this section. [An offense under this subsection is a Class A misdemeanor.] (b) A test result may be released to: (1) the department under this chapter; (2) a local health authority if reporting is required under this chapter; (3) the Centers for Disease Control of the United States Public Health Service if reporting is required by federal law or regulation; (4) the physician or other person authorized by law who ordered the test; (5) a physician, nurse, or other health care personnel who have a legitimate need to know the test result in order to provide for their protection and to provide for the patient's health and welfare; (6) the person tested or a person legally authorized to consent to the test on the person's behalf; (7) the spouse of the person tested if the person tests positive for AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS; (8) a person authorized to receive test results under Article 21.31, Code of Criminal Procedure, concerning a person who is tested as required or authorized under that article; and (9) a person exposed to HIV infection as provided by Section

79 Dangerous Patients Dangerous Drivers AMA PolicyIf the patient poses a “clear risk” to public safety: Doctor should discuss with patient to restrict driving. If the patient ignores the doctor’s request, doctor must report the patient to the authorities. Doctors should advise patients about their obligation to make report. Adopted June 1999 A physician licensed to practice medicine in this state may inform the Department of Public Safety orally or in writing, of the name, date of birth, and address of a patient older than 15 years of age whom the physician has diagnosed as having a disorder or disability specified in a rule of the Department of Public Safety of the State of Texas. Texas Health & Safety Code, Section

80 Dangerous Patients Abuse or Neglect“Required to disclose” or “Should Disclose” ACA Code “except as the patient directs or consents or the law requires otherwise” HIPAA permits disclosures without an authorization or an opportunity to agree or object for public health activities. § (b) about victims of abuse, neglect or domestic violence. § (c) for law enforcement purposes. § (f) to avert a serious threat to health or safety. § (j)

81 Subpoena Suits involving a claim by patient for injuries Other suits(g) Exceptions to confidentiality or privilege in court or administrative proceedings exist: (4) in any civil litigation or administrative proceeding, if relevant, brought by the patient or someone on his behalf if the patient is attempting to recover monetary damages for any physical or mental condition including death of the patient . . . Other suits Produce only the requested documents Produce at proper time

82 Subpoena ACA Code HIPAA“except as the patient directs or consents or the law requires otherwise” HIPAA disclosure permitted for judicial and administrative proceedings. § (e)

83 Reports to Government Texas Chiropractic Act(h) Exceptions to the privilege of confidentiality, in other than court or administrative proceedings, allowing disclosure of confidential information by a chiropractor, exist only for the following: (1) governmental agencies if the disclosures are required or permitted by law, provided that the agency shall protect the identity of any patient whose chiropractic records are examined; The Department of Health may require that the information reported shall include: “(1) the patient's name, address, age, sex, race, and occupation; (2) the date of onset of the disease or condition; (3) the probable source of infection; and (4) the name of the attending physician or dentist.” Tex. Health & Safety Code §

84 Reports to Government ACA Code HIPAA“except as the patient directs or consents or the law requires otherwise” HIPAA disclosure permitted for uses and disclosures required by law. § (a)

85 Incidental InformationACA Code of Ethics -- “a patient’s history, symptoms, diagnosis, or treatment.” HIPAA protects individually identifiable health information: “information that . . . (1) Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual. § Texas Chiropractic Act limits its protection to communications “relative to or in connection with any professional services as a chiropractor to a patient.”

86 Doctor’s Defense Texas Chiropractic Act(g) Exceptions to confidentiality or privilege in court or administrative proceedings exist: (1) when the proceedings are brought by the patient against a chiropractor, including but not limited to malpractice proceedings, and any criminal or license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a chiropractor; (5) in any disciplinary investigation or proceeding of a chiropractor . . . (6) in any criminal investigation of a chiropractor . . .

87 Doctor’s Defense ACA Code HIPAA“except as the patient directs or consents or the law requires otherwise” HIPAA

88 Fee Collections ACA Code HIPAA Texas Chiropractic Act(g)(3) when the purpose of the proceedings is to substantiate and collect on a claim for chiropractic services rendered to the patient; (h)(4) those parts of the records reflecting charges and specific services rendered when necessary in the collection of fees for services provided by a chiropractor or chiropractors or professional associations or other entities qualified to render or arrange for services; (h)(6) individuals, corporations, or governmental agencies involved in the payment or collection of fees for services rendered by a chiropractor; ACA Code HIPAA

89 Third Party Employers Crocker v. Synpol, Inc.AMA Opinion - Pre-employment Exams The information obtained by the physician as a result of such examinations is confidential and should not be communicated to a third party without the individual’s prior written consent. If the individual authorized the release of medical information to an employer or a potential employer, the physician should release only that information which is reasonably relevant to the employer’s decision.

90 Deceased Patient Time Limits Compare the Codes

91 Computerized Records Technical Practices and Proceduresa) Individual Authentication of Users b) Access Controls c) Audit Trails d) Physical Security and Disaster Recovery e) Protection of Remote Access Points f) Protection of External Electronic Communications g) Software Discipline h) System Assessment Organizational Practices a) Security and Confidentiality Policies b) Education and Training Programs c) Sanctions d) Patient Access to Audit Logs

92 Pythagorean theorem: 24 wordsThe Lords Prayer: 66 words Archimedes' Principle: 67 words The Ten Commandments: 179 words Lincoln's Gettysburg address: 286 words The U.S. Declaration of Independence: 1,300 words C.F.R. regulations on HIPAA privacy: 401,034 words

93 Professional Fees ACA Code Charity Care Mark Ups on Lab WorkDual Fee Schedules Case Fees Fee Splitting Referral Fees and Kickbacks Waivers of Deductibles and Copayments

94 ACA Code Doctors of chiropractic are entitled to receive proper and reasonable compensation for their professional services commensurate with the value of the services they have rendered taking into consideration their experience, time required, reputation and the nature of the condition involved. Doctors of chiropractic should terminate a professional relationship when it becomes reasonably clear that the patient in not benefiting from it. Doctors of chiropractic should support and participate in proper activities designed to enable access to necessary chiropractic care on the part of persons unable to pay such reasonable fees. ACA Code, A.9.

95 ACA Code Compare to State Bar Rules AMA Opinion“A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee.” 1.04(a) AMA Opinion “A physician should not charge or collect an illegal or excessive fee.”

96 Charity Care ACA Code: “Doctors of chiropractic should support and participate in proper activities designed to enable access to necessary chiropractic care on the part of persons unable to pay such reasonable fees.” (A.9.) Reasons to provide charity care Duty Small burden relative to benefits Personally rewarding Referrals Reputation If charity care is not provided voluntarily, the government may require it. Emergency Room Dumping

97 Mark ups Texas Statute (a) A person licensed in this state to practice chiropractic may not agree with a laboratory to make payments to the laboratory for individual tests, combinations of tests, or test series for a patient unless: (1) the person discloses on the bill or statement to the patient or to a third party payor the name and address of the laboratory and the net amount paid to or to be paid to the laboratory; or (2) discloses in writing on request to the patient or third party payor the net amount. (b) The disclosure permitted by Subsection (a)(2) must show the charge for the laboratory test or test series and may include an explanation, in net dollar amounts or percentages, of the charge from the laboratory, the charge for handling, and an interpretation charge. Tex. Health & Safety Code §

98 Mark ups California StatuteIt is unlawful for any [chiropractor] to charge, bill, or otherwise solicit payment form any patient for any clinical laboratory service not actually rendered by such person unless the patient is apprised at the first time of such charge, billing, or solicitation and any subsequent charge, billing or solicitation of the name, address and charges of the clinical laboratory performing the service It is also unlawful for any [chiropractor] to charge additional charges for any clinical laboratory service that is not actually rendered by the licensee to the patient and itemized in the charge, bill, or other solicitation of payment. This section shall not be construed to prohibit any itemized charge for any service actually rendered to the patient by the licensee. Penalty - up to one year in prison, and/or a fine not exceeding $10,000 California Business & Professions Code, §

99 Mark ups Medicare - 42 C.F.R. § “Physician billing for purchased diagnostic tests.” (a) if a physician bills for a diagnostic test performed by an outside supplier, the payment to the physician less the applicable deductibles and coinsurance may not exceed the lowest of the following amounts: (1) The supplier's net charge to the physician. (2) The physician's actual charge. (3) The fee schedule amount for the test that would be allowed if the supplier billed directly. See also, 42 U.S.C. § 1395u(n) “Elimination of markup . . .”

100 Mark ups Sales of Vitamins and SupplementsReport of AMA Council on Ethical and Judicial Affairs: In-office sale of health-related products by physicians presents a financial conflict of interest, risks placing undue pressure on the patient, and threatens to erode patient trust and undermine the primary obligation of physicians to serve the interests of their patients before their own.

101 Report of AMA Council on Ethical and Judicial Affairs:(1) Claims of benefit must have scientific validity. (2) Minimize financial conflicts of interest: Limit sales to products that serve the immediate and pressing needs of their patients. Distribute other products free of charge or at cost. (3) Disclose fully the doctor’s financial interests as well as the availability of the product or other equivalent products elsewhere. (face-to-face or by posting) (4) Physicians should not participate in exclusive distributorships of health-related products which are available only through physicians’ offices. E (adopted June 1999)

102 Dual Fee Schedules Discount for patients who pay cashTexas Insurance Code, art 21.79F (a) A person commits an offense if the person intentionally or knowingly charges two different prices for providing the same product or service, where the higher price is based on the fact that an insurer will pay all or part of the price of the product or service. (b) An offense under this article is a Class B misdemeanor. . . (d) This article does not apply to the provision of health care services to Medicaid or Medicare patients or to medically indigent persons who qualify for sliding fee scales. Discounts not based on insurance are permitted e.g., PAD, Group discounts

103 Case Fees Implied Warranty of CureInsurance pays only your usual and customary fees “Customary charges” refers to “the uniform amount which the individual physician charges in the majority of cases for a specific medical procedure or service.” 42 C.F.R "Health maintenance organization" is defined as “any person who arranges for or provides a health care plan or a single health care service plan to enrollees on a prepaid basis.” Tex. Ins. Code art. 20A.02 Insurance is “[a] contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in future.” Gutierrez v. Karl Perry Enterprises, Inc., 874 S.W.2d 103, 107 (Tex. App. — El Paso 1994) (quoting Black's Law Dictionary 802 (6th ed. 1990))

104 Fee Splitting Percentage to Associate doctorPercentage to Management Company Percentage to Partner/Investor Percentage to CA $50 referral fee to attorneys OIG Advisory Opinion 98-4 We are writing in response to your request for an advisory opinion, in which you ask whether a proposed management services contract between a medical practice management company and a physician practice, which provides that the management company will be reimbursed for its costs and paid a percentage of net practice revenues (the “Proposed Arrangement”), would constitute illegal remuneration as defined in the anti-kickback statute, §1128B(b) of the Social Security Act (the “Act”) Based on the information provided, we conclude that the Proposed Arrangement may constitute prohibited remuneration under §1128B(b) of the Act.

105 Fee Splitting The Risk Proceed with Extreme CautionMedicare criminal penalties - A maximum fine of $25,000 and a maximum prison sentence of five years. 42 U.S.C. § 1320a-7b(b). State criminal penalties Disciplinary action against your license Proceed with Extreme Caution Read any written agreement very carefully. Learn about the statutes and court opinions that apply in the state where you will practice. Rely upon your own judgment and the written opinion of your Board and/or your attorney, not the representations of the practice management company or its attorney. Do not sign any agreement until all of your doubts and questions have been resolved.

106 Referral Fees Texas Statute:A person commits an offense if the person intentionally or knowingly offers to pay or agrees to accept any remuneration directly or indirectly, overtly or covertly, in cash or in kind, to or from any person, firm, association of persons, partnership, or corporation for securing or soliciting patients or patronage for or from a person licensed, certified, or registered by a state health care regulatory agency. Class A Misdemeanor or 3rd Degree Felony Tex Health & Safety Code §

107 Referral Fees Social Security Act: (b) Illegal remunerations(1) whoever knowingly and willfully solicits or receives [or offers or pays] any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind— (A) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, or . . . shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both. 42 U.S.C. § 1320a-7b

108 Referral Fees AMA Opinion (6.02):Payment by or to a physician solely for the referral of a patient is fee splitting and is unethical. A physician may not accept payment of any kind, in any form, from any source, such as a pharmaceutical company or pharmacist, an optical company or the manufacturer of medical appliances and devices, for prescribing or referring a patient to said source. In each case, the payment violates the requirement to deal honestly with patients and colleagues. The patient relies upon the advice of the physician on matters of referral. All referrals and prescriptions must be based on the skill and quality of the physician to whom the patient has been referred or the quality and efficacy of the drug or product prescribed.

109 Referral Fees “Rental” of mobile diagnostic equipmentSupplier rents space in doctor’s office to have space for the equipment and a technician to operate the equipment. Doctor refers patients for testing Doctor can bill for the technical component Supplier who provides equipment interprets test results and bills for professional component

110 Deductible Waiver AMA Opinion (6.12)Under the terms of many health insurance policies or programs, patients are made more conscious of the cost of their medical care through copayments. By imposing copayments for office visits and other medical services, insurers hope to discourage unnecessary health care. In some cases, financial hardship may deter patients from seeking necessary care if they would be responsible for a copayment for the care. Physicians commonly forgive or waive copayments to facilitate patient access to needed medical care. When a copayment is a barrier to needed care because of financial hardship, physicians should forgive or waive the copayment.

111 Deductible Waiver AMA OpinionA number of clinics have advertised their willingness to provide detailed medical evaluations and accept the insurer's payment but waive the copayment for all patients. Cases have been reported in which some of these clinics have conducted excessive and unnecessary medical testing while certifying to insurers that the testing is medically necessary. Such fraudulent activity exacerbates the high cost of health care, violates Opinion E-2.19 and is unethical. Physicians should be aware that forgiveness or waiver of copayments may violate the policies of some insurers, both public and private; other insurers may permit forgiveness or waiver if they are aware of the reasons for the forgiveness or waiver. Routine forgiveness or waiver of copayments may constitute fraud under state and federal law. Physicians should ensure that their policies on copayments are consistent with applicable law and with the requirements of their agreements with insurers.

112 Deductible Waiver Special Fraud Alert: Routine Waiver of Copayments or Deductibles Under Medicare To help reduce fraud in the Medicare program, the Office of Inspector General is actively investigating health care providers [who] routinely waive (do not bill) Medicare deductible and copayment charges to beneficiaries for items and services covered by the Medicare program. Routine waiver of deductibles and copayments is unlawful because it results in (1) false claims, [A provider who routinely waives Medicare copayments or deductibles is misstating its actual charge.] (2) violations of the anti-kickback statute, and (3) excessive utilization of items and services paid for by Medicare. [When providers forgive financial obligations they may be unlawfully inducing that patient to purchase items or services from them.] One important exception to the prohibition against waiving copayments and deductibles is that providers may forgive the copayment in consideration of a particular patient's financial hardship. This hardship exception, however, must not be used routinely; it should be used occasionally to address the special financial needs of a particular patient. Except in such special cases, a good faith effort to collect deductibles and copayments must be made.

113 Deductible Waiver Advisory Opinion 97-4 Professional CourtesyWe are writing in response to your request for an advisory opinion, in which you ask whether declining to pursue collection of copayments from certain patients who have employer-sponsored Medicare complementary coverage constitutes grounds for imposition of sanctions . . . Based on the information provided and subject to certain conditions described below, we conclude that the proposed arrangement may constitute grounds for the imposition of civil monetary penalties under Section 231(h) of HIPAA. We further conclude that the proposed arrangement may constitute grounds for the imposition of criminal penalties under 1128B(b) and for exclusion under 1128(b)(7) (as it relates to kickbacks) of the Social Security Act. Professional Courtesy

114 Insurance Companies A. General Attitude B. Insurance FraudC. Review of Claims by Insurance Companies D. Insurance Equality Statutes E. Letters of Protection F. Managed Care

115 Fraud Statutes Medicare or Other Federally Funded ProgramsFederal False Claims Act Knowingly Qui Tam Actions $5,000 - $10,000 per claim Social Security Act — Criminal Penalties $25,000, plus 5 years imprisonment Social Security Act — Civil Monetary Penalties Program Fraud Civil Remedies Act Assignment Violation Physician Self-referral Anti-kickback Provisions

116 Fraud Medicare Private Insurance Conspiracy to Defraud the GovernmentMaking Fictitious or Fraudulent Claims Conspiracy to Defraud Making False Statements Private Insurance HIPAA Racketeer Influenced and Corrupt Organizations Act Mail and Wire Fraud Texas Illegal Remuneration Statute Texas Chiropractic Act Texas Penal Code — Insurance Fraud

117 Fraud Texas Penal Code . . . information concerning a matter that is material to a claim for payment under an insurance policy includes information concerning: (1) whether health care goods or services were provided; (2) whether health care goods or services were medically necessary under professionally accepted standards; (3) the nature of the health care goods or services provided; (4) the date on which health care goods or services were provided; (5) the medical record of goods or services provided; (6) the condition treated or diagnosis made; (7) the identity and applicable license of the provider or the recipient of health care goods or services; . . .

118 Qui Tam Example TUESDAY, JUNE 4, 2002SEVEN HOSPITALS TO PAY U.S. OVER $6.3 MILLION TO SETTLE FALSE CLAIMS ACT CASE WASHINGTON, DC– Seven hospitals have agreed to pay the United States more than $6.3 million to settle allegations that the facilities unlawfully charged federal health care programs for surgical procedures using experimental cardiac devices, the Justice Department announced today. The Department alleged that between 1987 and 1994, the hospitals had violated the False Claims Act by charging the government for medical procedures that were not properly reimbursable. The hospitals all denied wrongdoing. These hospitals and over one hundred others had been named as defendants in a whistleblower lawsuit filed by Kevin Cosens, a former medical device salesman. Under the False Claims Act, private citizens can bring suit on behalf of the United States and share in any recovery obtained by the government. Mr. Cosens will receive more than $1 million of the settlements announced today.

119 Fraud Examples of Fraudulent ActivityBilling for services or supplies that were not provided. This includes billing for “no shows.” Misrepresenting the diagnosis for the patient to justify the services or equipment furnished. Altering claim forms to obtain a higher payment amount Applying for duplicate payment, such as billing both Medicare and the beneficiary for the same service or billing both Medicare and another insurer. Soliciting, offering, or receiving a kickback, bribe or rebate. Unbundled or exploded charges, such as the billing of a multichannel set of lab tests to appear as if the individual tests had been performed.

120 Fraud Examples of Fraudulent ActivityCompleting Certificates of Medical Necessity for patients not personally or professionally known by the provider. Misrepresenting the services rendered (upcoding), amounts charged for services rendered, identity of the person receiving the services, dates of services, etc. Billing for noncovered services as covered services. Claims involving collusion between a provider and a beneficiary, or between a supplier and a provider resulting in higher costs or charges to Medicare. Use of another person’s Medicare card to obtain medical care

121 Fraud Examples of Fraudulent ActivityAlteration of claims history records to generate fraudulent payments. Split billing schemes (i.e., billing procedures over a period of days when all treatment occurred during one visit). Targets of Fraud Investigations and Charges Employers Officers and Directors Billing and Support Personnel Signatures on Claims Forms

122 Fraud Duty to Report Fraud Social Security Act Texas Insurance CodeMisprision of Felony Risk of Liability for Defamation Qualified Privilege Truth Protocol for Reports of Suspected Fraud

123 Review of Claims Claims reviewed for: Adequate DocumentationDiagnosis — History, Onset of Complaint, Examination Appropriateness of Treatment rendered Frequency of Care rendered Adequate Documentation Requests for Additional Documentation

124 Insurance Equality StatutesTexas Statute Any person who is issued, who is a party to, or who is a beneficiary under any health insurance policy delivered, renewed, or issued for delivery in this state by any insurance company, association, or organization to which this article applies may select a licensed doctor of podiatric medicine, a licensed dentist, or a doctor of chiropractic to perform the medical or surgical services or procedures scheduled in the policy which fall within the scope of the license of that practitioner . . . Tex. Ins. Code Art , § 3. Employee Retirement Income Security Act (ERISA)

125 Insurance Companies Letters of Protection Managed CareAttorney promises to pay chiropractic bills out of any settlement Managed Care Curse or Opportunity Financial Incentives to Doctors Doctor-Patient Relationship

126 Doctors of chiropracticDoctors of chiropractic should not exploit the trust and dependence of their patients. ACA Code, Paragraph A.6.

127 Sexual Misconduct Vague Rules Defenses ? Boundaries Harsh Consequences

128 Vague Rules ACA Code Texas Chiropractic Act“grossly unprofessional conduct” Texas Administrative Code “It shall be considered grossly unprofessional conduct for a licensee to engage in sexual misconduct with a patient within the chiropractic/patient relationship.” FCLB Guidelines “Sexual misconduct may include behavior, gestures, or expressions that are seductive, sexually suggestive, or sexually demeaning to a patient.”

129 Definition of Sexual MisconductSexual misconduct as used in subsection (a)(3) of this section means: (1) sexual impropriety which may include: (A) any behavior, gestures, or expressions which may reasonably be interpreted as in inappropriately seductive or sexually demeaning; (B) inappropriate sexual comments about and to a patient or former patient including sexual comments about an individual's body; (C) requesting unnecessary details of sexual history or sexual likes and dislikes; (D) making a request to date; (E) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee; (F) kissing or fondling of a sexual nature; or (G) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature; or (2) sexual intimacy which may include engaging in any conduct that is sexual or may be reasonably interpreted as sexual, such as (A) sexual intercourse; (B) genital contact; (J) any bodily exposure of normally covered body parts.

130 Defenses ? The Patient Consented ACA - not clearTexas Administrative Code It is not a defense if the sexual impropriety or intimacy with the patient occurred: (1) with the consent of the patient; (2) outside professional treatment sessions; or (3) off the premises regularly used by the licensee for the professional treatment of patients. FCLB - “Patient consent should not be viewed as a legal defense. The burden of proof falls upon the doctor to show there has not been a breach of the doctor-patient relationship.” Florida - Consent is not a defense

131 Defenses ? Termination of Doctor/Patient RelationshipIs a “cooling off” period good for the profession? Texas - It is a defense “if the patient was no longer emotionally dependent on the licensee when the sexual impropriety or intimacy began, and the licensee terminated his or her professional relationship with the person more than six months before the date the sexual impropriety or intimacy occurred.” Florida - defines “patient” to include former patients FCLB - “Many health professions and licensing boards are promulgating stringent standards governing sexed misconduct between doctor and patient, requiring termination of the doctor/patient relationship prior to engaging in sexual contact and a "cooling off" period of varying lengths.” Colorado - prohibits “engaging in a sexual act with a patient during the course of such patient’s care or within six months immediately following termination of the chiropractor’s professional relationship with the patient.”

132 Defenses ? Termination of Doctor/Patient RelationshipOregon prohibits sexual relations only with a “current” patient. § (1)(b). Massachusetts has a 90 day waiting period 233 C.M.R. 4.06(n) Nevada prohibits sexual conduct or sexual relations unless the doctor-patient relationship has been terminated for a “reasonable time.” Nev. Admin. Code § (3)(d). New Jersey provides that “[a] licensee shall not engage in sexual contact with a patient with whom he or she has a patient-physician relationship. The patient-physician relationship is considered ongoing for purposes of this section unless: 1. Activity [sic] terminated, by way of written notice to the patient and documentation in the patient record; or 2. The last professional service was rendered more than three months ago.” N.J. Admin. Code § 13:44E-2.3(c). South Carolina provides a three month “cooling off period. S.C. Admin Code § 25-7(F).

133 Defenses ? The Sexual Relationship Existed Before the Doctor/ Patient Relationship ACA Opinion: “Doctors of Chiropractic should make every effort to avoid dual relationships that could impair the professional judgment or risk the possibility of exploiting the confidence placed in them by the patient.” Am I trained to meet my relative’s (friend’s) medical needs? Am I too close to probe my relative’s (friend’s) intimate history and physical being and to cope with bearing bad news if need be? Can I be objective enough not to give too much, too little, or inappropriate care? Is medical involvement likely to provoke or intensify intrafamilial conflicts? Will my relatives (friends) comply more readily with medical care delivered by an unrelated physician? Will I allow the physician to whom I refer my relative (friend) to attend him or her? Am I willing to be accountable to my peers and to the public for this care? LaPuma and Priest, JAMA 1992; 267 (13):

134 Boundaries 1. Role 2. Time 3. Place And Space 4. Gifts 5. Clothing6. Family/friends 7. Physician Self-disclosure 8. Physical Contact 9. Money 10. Language

135 Harsh Consequences Discipline Malpractice Risk

136 Reporting Illegal ConductA. General Duty B. Child Abuse; Elder and Disabled Abuse; and Spouse Abuse

137 General Duty Doctors of chiropractic should protect the public and reputation of the chiropractic profession by bringing to the attention of the appropriate public or private organizations the actions of chiropractors who engage in deception, fraud or dishonesty, or otherwise engage in conduct inconsistent with this Code of Ethics or relevant provisions of applicable law or regulations within their states. ACA Code, B.9.

138 Child Abuse Duty to Report§ Persons Required to Report; Time to Report (a) A person having cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter. (b) If a professional has cause to believe that a child has been or may be abused or neglected, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected. . . .

139 Child Abuse Definition of Abuse and Neglect(1) "Abuse" includes the following acts or omissions by a person: (A) mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning; (B) causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child's growth, development, or psychological functioning; (C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm; (D) failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child; (E) sexual conduct harmful to a child's mental, emotional, or physical welfare; (F) failure to make a reasonable effort to prevent sexual conduct harmful to a child; (G) compelling or encouraging the child to engage in sexual conduct as defined by Section 43.01, Penal Code; or (H) causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene as defined by Section 43.21, Penal Code, or pornographic.

140 Child Abuse (4) "Neglect" includes:(A) the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child; (B) the following acts or omissions by a person: (i) placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child; (ii) failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child; (iii) the failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused; or (iv) placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child; or (C) the failure by the person responsible for a child's care, custody, or welfare to permit the child to return to the child's home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away.

141 Child Abuse How much evidence? Delegate Reporting Duty to Parent“cause to believe” Delegate Reporting Duty to Parent “A professional may not delegate to or rely on another person to make the report.” Immunity “A person acting in good faith who reports alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.” Criminal Penalty Class B Misdemeanor ($2,000 and 180 days) Patients and Others

142 Abuse of Elderly and Disabled Persons Spouse AbuseReporting requirements are similar to requirements for reports of child abuse Spouse Abuse “A person who witnesses family violence is encouraged to report the family violence to a local law enforcement agency.” Tex. Family Code § “A medical professional who treats a person for injuries that the medical professional has reason to believe were caused by family violence shall: (1) immediately provide the person with information regarding the nearest family violence shelter center; (2) document in the person's medical file: (A) the fact that the person has received the information provided under Subdivision (1); and (B) the reasons for the medical professional's belief that the person's injuries were caused by family violence; and (3) give the person a written notice in substantially the following form, completed with the required information, in both English and Spanish:

143 "NOTICE TO ADULT VICTIMS OF FAMILY VIOLENCE"It is a crime for any person to cause you any physical injury or harm even if that person is a member or former member of your family or household. "You may report family violence to a law enforcement officer by calling the following telephone numbers: _____________________________________. "If you, your child, or any other household resident has been injured or if you feel you are going to be in danger after a law enforcement officer investigating family violence leaves your residence or at a later time, you have the right to: "Ask the local prosecutor to file a criminal complaint against the person committing family violence; and "Apply to a court for an order to protect you. You may want to consult with a legal aid office, a prosecuting attorney, or a private attorney. A court can enter an order that: "(1) prohibits the abuser from committing further acts of violence; "(2) prohibits the abuser from threatening, harassing, or contacting you at home; "(3) directs the abuser to leave your household; and "(4) establishes temporary custody of the children or any property. "A VIOLATION OF CERTAIN PROVISIONS OF COURT-ORDERED PROTECTION MAY BE A FELONY. "CALL THE FOLLOWING VIOLENCE SHELTERS OR SOCIAL ORGANIZATIONS IF YOU NEED PROTECTION: ____________________."

144 Kringen v. Boslough and Saint Vincent HospitalIn July 1994, Bobby Jo Price took his girlfriend, Desirea Kringen, to St. Vincent Hospital so that a doctor could determine if she had recently engaged in sexual intercourse with another man. Dr. Boslough examines her, treats her for bruises and gives her a note for her boyfriend. Price was not persuaded by the doctor’s note. He doused Kringen with gasoline and set her on fire. She survived with 2nd and 3rd degree burns over 62% of her body and was permanently disfigured. Kringen sues the doctor and the hospital on the theory that they were negligent for allowing her to leave the hospital with Price. She requested $2.8 million for lost earning capacity, plus mental and emotional pain and distress, pain and suffering, loss of future wages and medical expenses. Settled in March 1998 for a confidential amount. Kringen v. Boslough, No (D. Mont. Filed July 25, 1996)

145 Advertising A. Should Professionals AdvertiseB. Basic Rule - false, misleading and deceptive advertising is prohibited C. Specific Problem Areas D. General Considerations

146 Texas Occupations Code § 101Texas Occupations Code § False, Misleading, or Deceptive Advertising (a) A person may not use advertising that is false, misleading, deceptive, or not readily subject to verification. (b) False, misleading, or deceptive advertising or advertising not readily subject to verification includes advertising that: (1) makes a material misrepresentation of fact or omits a fact necessary to make the statement as a whole not materially misleading; (2) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure; (3) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated; (4) contains a testimonial;

147 Texas Occupations Code § 101Texas Occupations Code § False, Misleading, or Deceptive Advertising (5) causes confusion or misunderstanding as to the credentials, education, or licensing of a health care professional; (6) represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required; (7) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required; (8) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient; or (9) represents in the use of a professional name a title or professional identification that is expressly or commonly reserved to or used by another profession or professional.

148 Texas Occupations Code § 104.003, Required Identification(a) A person subject to this section who uses the person's name on a written or printed professional identification, including a sign, pamphlet, stationery, or letterhead, or who uses the person's signature as a professional identification shall designate as required by this section the healing art the person is licensed to practice. . . . (e) A person who is licensed by the Texas Board of Chiropractic Examiners shall use: (1) chiropractor; (2) doctor, D.C.; (3) doctor of chiropractic; or (4) D.C.

149 Texas Occupations Code § 201Texas Occupations Code § , Grounds for Refusal, Revocation, or Suspension of License The board may refuse to admit a person to examinations and may revoke or suspend a license or place a license holder on probation for a period determined by the board for: . . . (9) using an advertising statement that tends to mislead or deceive the public; . . . (11) advertising professional superiority, or advertising the performance of professional services in a superior manner; . . . (21) using for the purpose of soliciting patients an accident report prepared by a peace officer in a manner prohibited by Section 38.12, Penal Code; . . . (22) advertising using the term "physician" or "chiropractic physician" or any combination or derivation of the term "physician."

150 Texas Penal Code § 38.12, Barratry and Solicitation of Professional Employment(a) A person commits an offense if, with intent to obtain an economic benefit the person: (2) solicits employment, either in person or by telephone, for himself or for another; (d) A person commits an offense if the person: (1) is an attorney, chiropractor, . . . (2) with the intent to obtain professional employment for himself or for another, sends or knowingly permits to be sent to an individual who has not sought the person's employment, legal representation, advice, or care a written communication that: (A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person and that was mailed before the 31st day after the date on which the accident or disaster occurred; . . . (E) is sent or permitted to be sent by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications concerning employment; (F) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or (G) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

151 Solicitation Comment to Rule 7Solicitation Comment to Rule 7.03 of the Texas Disciplinary Rules Of Professional Conduct . . . in-person or telephone solicitations are permitted where the prospective client either has a family or past or present attorney-client relationship with the lawyer or where the potential client had previously contacted the lawyer about possible employment in the matter.

152 Research/Patient Solicitation ACA Policy[T]here exists within the profession individuals and groups which attempt to utilize what appears to be or may in fact be research efforts as a means to solicit patients. Such research/patient solicitation efforts erode the credibility of legitimate chiropractic research and threaten to endanger the professional relationship between patient and chiropractor Be it further resolved that the American Chiropractic Association caution its members that it regards the practice of utilizing research programs for the designed purpose of patient solicitation to be an unacceptable and possibly illegal method of patient inducement that will ultimately damage the credibility of chiropractic as a whole and in particular damage the credibility of chiropractic research. Chiropractic examining boards and other authorized governmental regulatory agencies are encouraged to investigate and to take proper action in regard to these improper patient solicitation/research programs.

153 General ConsiderationsProfessional, Organized, Succinct, Truthful (“POST”) Forms of Advertising

154 Informed Consent Definition Why Should you Obtain Informed ConsentElements of Informed Consent Information to be Communicated Exceptions to Informed Consent Special Considerations for Minors Myths about informed consent Illustrative cases on informed consent

155 Why Should you Obtain Informed ConsentImportance of Doctor-Patient Rapport Absolute Liability

156 Elements of Informed ConsentCompetence Minors Mental Incompetence Disclosure of Information Understanding the Information Voluntariness Coercion and Manipulation Authorization Limitations on consent Implied consent Withdrawal of consent

157 Information to be CommunicatedThe nature of the procedures to be used The material risks inherent in such treatment a) The reasonable physician standard b) The reasonable patient standard The probability of those risks occurring The availability and nature of other treatment options The material risks inherent in such options and the probability of such risks occurring The risks and dangers attendant to remaining untreated

158 Exceptions to Informed ConsentEmergency Therapeutic Justification Waiver Paternalism