Click here to download the transcript.
Disclaimer: The following is an actual transcript. We do our best to make sure the transcript is as accurate as possible, however, it may contain spelling or grammatical errors. We suggest you watch the video while reading the transcript.
On this is Michael Miscoe go with Miscoe Health Law for this week’s installment of the Growth Without Risk program sponsored by ChiroSecure, uh, this week. We’re, we’re going to talk a little bit about the compliance risks associated with implementation of nutrition and weight loss programs. Um, and let’s start with weight loss. I know I’ve addressed this in the past, but, uh, some recent, uh, cases have suggested that maybe we should hit this again. Uh, so I apologize if you heard this before, it won’t hurt you to hear it again. Uh, the first thing of concern is scope of practice issues, um, with respect to nutrition and weight loss. In many states, the chiropractic scope of practice is predicated on evaluation and diagnosis of subluxation and related neuromusculoskeletal conditions as the predicate for everything you do. And then of course, the everything you do is restricted usually to either manipulation and or of physiotherapeutic modalities and procedures, uh, and possibly some other things.
But, um, in many states you can’t go direct and just say, for example, open up a weight loss clinic and just provide, um, uh, advice and guidance and counseling relative to weight loss or nutritional improvement. You have to have some hook back to, um, your scope of practice and the way that you, that that’s usually done is that, you know, patients that need these services usually also have, um, neuromusculoskeletal conditions and symptoms, um, either their weight or their poor nutrition, poor eating, whatever it is, uh, is, is usually a, um, uh, uh, uh, uh, factor that makes those conditions worse. Uh, the word just jumped right out of my head. It’s a modifying factor when you think of it from an HPI perspective, but, um, in which case, once you’ve diagnosed their musculoskeletal condition, then that provides the conduit to go address these comorbid problems, uh, where they involve nutrition and weight loss, um, with respect to weight loss, uh, specifically, um, those programs can be very effective, uh, but again, the objectives of those programs yes, lose weight, but for the purpose of, of reducing a stress or, uh, you know, to their musculoskeletal, um, uh, uh, or their, their muscular skeletal system, uh, such that the symptoms that they present with are mitigated, uh, you should offer if not provide, uh, supportive manipulative care, just so you’re squarely within the scope of practice.
If the patient does not want manipulation, your treatment plan should at least indicate that it was offered. Um, and, um, and then proceed with the counseling, which you can do as a physician. Um, certainly, uh, if you look at the new ENM rules, those be time-based ENMs, however, they probably would not be compensable under most insurance plans, uh, because most plans do not provide counseling, uh, for weight loss services, uh, where they provide counseling for nutrition services, which we’ll talk about in a little bit more detail in a second. Um, usually they were strict those services to either medical docs, medical nutrition therapist, or people that are specifically credentialed to provide those services, registered dieticians and whatnot. So check your credentialing rules with your payers to see if nutritional counseling is, is inappropriate service. There are codes for that, uh, otherwise, uh, it would just be a time-based, um, uh, ENM service, um, which you would charge the patient for as an out-of-pocket expense to the extent that it was not covered now with respect to nutrition, um, there’s some additional scope of practice issues that are a lot more horrifying because I’ve had a number of these cases where, uh, docs get involved in doing nutritional assessments, uh, patients that usually have collateral medical problems, uh, and they believe that through improvement of the patient’s nutrition, they can do things like reduce A1C and whatnot.
And maybe you can, okay, but you need to be extremely cautious relative to that, because you can quickly trip across, uh, outside the scope of chiropractic into the scope of medical practice. Um, and, um, there’s some mitigation strategies that we’ll talk about, um, towards the end of this presentation, but, um, you need to be extremely cautious about the purpose of these, these goals, again, where your scope of practice is focused on the spine and the associated musculoskeletal structures, um, make sure that you identify a condition there for which this is a complicating factor, um, and then address that as part of your overall plan of care and that way you’re staying well within your scope of practice and, and you don’t have any issues there, uh, because those issues can, can create, uh, malpractice liability, licensure board liability, do you know a complaint from another provider or a patient who’s upset.
Um, and, and if you’re not legally performing the services you’re performing, you’re pretty much, you know, not only out on the limb, but you’re sowing the limb off behind you. Um, now let’s talk about marketing, um, because obviously if you’re going to provide these programs, you want to let people know that you’re providing these programs, but again, you need to be very, very cautious about, um, uh, how you market these programs, so that it’s clear, um, that these services are adjunct, um, to your chiropractic focus. You need to also make sure that you’re not, um, you know, guaranteeing results or your money back or whatever, um, because those types of things, uh, can get in real trouble real fast. Uh, every state on the planet, uh, restricts, uh, or, or usually finds is a violation, any type of deceptive marketing. Uh, so you need to be very, very cautious about how you market your weight loss on the nutrition side.
Um, I’ve seen issues where entirely honest marketing has been nonetheless challenged because, um, you know, in the marketing it has said, you know, um, like in one case there was a reference to, you know, being healthier, um, you know, is, is, will have a potential, uh, reduction in your risk of getting diseases like COVID and the licensure board lost their mind. And when you looked at, um, the marketing statement, it was not untrue. I mean, healthy people are, are at less risk of getting the flu. Um, but, uh, to the extent that it intimated that if you go through their nutrition program, you’re not going to get COVID and that’s not what it said, but nonetheless, the board expressed concern and that, that those concerns cause a cycle where you have to hire somebody like me, you have to develop a response, uh, put this in the proper context.
And in that particular case, that was something that, um, and marketing firms dumped on, on the provider’s website that she didn’t even know about. Uh, so, you know, pro-tip on the side, make sure you got control over everything that goes out under your name, because you’re going to be held responsible for it. Um, the other thing about marketing, especially with nutritional programs is any intimation that you are treating, or you will have that program will have an impact on a medical condition, such as diabetes, for example, um, that’s the most common one, you know, where there’s a suggestion that many of our patients have experienced reduced A1C values and have gotten off their diabetes medication. Absolutely not, no way would you, would I ever suggest that you should say something like that, even if you truly, if you believe it’s true and you have patient data to support it, it doesn’t matter because the moment that you, as a doctor of chiropractic embark into the treatment of what would otherwise be considered medical conditions that are outside your scope of practice, you’re looking for a litany of, of liability either through your licensure board, uh, consumer fraud, um, and, uh, and, or, um, uh, upset patients, if it doesn’t work out for them, and maybe it doesn’t work out because they didn’t follow your advice, but it doesn’t matter.
Uh, you put yourself out there that you’re going to provide a result that you’re not licensed to provide, you know, or that you’re going to treat a condition that you’re not licensed to treat, um, that can go sideways, uh, leads to things like per se negligence where damages assumed. Um, and therefore you definitely don’t want to get involved in that. The best thing that could happen in that scenario is that the licensure board comes after you and slaps you with a fine, uh, so those types of things, uh, have to be very, very cautiously evaluated when you’re marketing these kinds of programs. And I would suggest that you get compliance analysis of any marketing that has to do with those so that you can validate that that marketing is compliant within the, within your scope of practice rules, uh, and whatnot, and is not misleading.
Now, sometimes I have seen providers run a file where their direct marketing is not objectionable, but then they use patient testimonials, uh, whether they be video-based or, or, you know, uh, written testimonials with patient’s initials, where the patient intimates that the, you know, a certain result that is outside your scope of practice. So I went to Dr. Joe’s, you know, nutrition program, and my A1C dropped, you know, 900 points. And now I don’t have to take, uh, my diabetes meds or whatever. Um, uh, you know, um, be very, you, I would not put those kinds of testimonials on because through the testimonial, you are marketing a result that is outside your scope of practice, and that can lead to liability as well. Um, now, you know, in retrospect, I mean, you know, in defense of those patients are gonna say what they’re gonna say, you know, w and you, if you have an appropriate disclaimer, these are, you know, this is the patient’s statement.
We’re not intimating that we’re treating, you know, diabetes or anything like that. Um, that that’s fine, but, you know, I’d rather it not be said, you know, uh, I went through this program and my health has improved substantially. Yay. I’m good with that. But suggesting that, that, uh, you know, went through a nutritional or weight loss program and it resolved a medical condition, uh, you need to be very, very, uh, cautious. And I would suggest, please don’t let your patients, I mean, you got to coach them a little bit what they cannot say, uh, because it could potentially get you in trouble, may be able to get you out of that trouble, but that process is costly. Uh, and you want to avoid it. I mean, I’m a licensed attorney and the one entity that I don’t want to know my name, uh, you know, in a actual, uh, you know, recognition perspective is my licensure board.
I don’t want to do my job. I don’t want to pay my dues, get my CLS, turn everything in and be just one of the, you know, hundreds of thousands of attorneys that are, um, regulated by the bar. And, and they never have a reason to, to look at my name specifically. And I’m sure you feel the same way. Um, licensure board issues are, you know, tricky and, um, uh, and, and you want to avoid that at all costs because worst case, let’s say you get suspended and you can’t practice for six months. I mean, that’s a big problem, uh, notifying your patients, it’s embarrassing. And then when you come back from that, trying to rebuild, um, is very, very difficult. Um, finally, I want to talk about some strategies for minimizing risk, um, if you’re involved in these programs and to the extent, um, that, um, a patient has other medical conditions that are being managed, um, attempt to collaborate with the patient’s primary care physician or the whoever the physician is that is managing the medical condition that may or may not be influenced by your nutrition, weight, loss, or other recommendations, um, to the extent that you can document that you’re collaborating with that physician, that you’re deferring any decisions relative to management of these collateral medical problems to that physician.
Yay. If that physician wants input into your nutrition program, let them have input because, uh, to the extent that it’s going to influence their ability to manage the patient’s medical problem, um, they would be the primary in terms of calling the shots. Uh, but if you work with them and the documentation indicates that you work with them, uh, my experience in these cases with, uh, with, with, uh, licensure boards is that, that is something specifically that they look to. So where you’re coordinating your efforts with the medical provider and the medical provider is making the decisions on medication management, whether that program’s appropriate for the patient or whatever, um, that gives you a little bit more backup, um, you know, to do what you’re doing without, you know, stepping in somebody else’s pond. Um, if nothing else, it is at least, uh, professionally polite, uh, to coordinate your care, uh, with, with the patient’s medical providers.
And hopefully you can develop those relationships. It may lead to referrals who knows, but, um, at least it, it it’s, and you’re, yes, you will run into medical doctors that think that all this stuff is voodoo and the patient shouldn’t do it. And ultimately it’s the patient’s call, but you should make efforts, you know, to coordinate any time. There are issues about the patient’s medication. You have to document that you refer the patient to their medical doctor, make the call if you have to. Um, but, uh, that type of coordination with respect to these programs is, uh, essential with weight loss programs. Patient may be has hypertension, hyperlipidemia, other medical problems, uh, in an exercise weight loss program, you know, with certainly have an impact on those problems. Again, coordinate your efforts with the medical provider, just to make sure, I mean, yes, you can do your own physical activity writing this questionnaire, but make sure that the, the medical doctor is aware of what you want to do.
Uh, and that there’s nothing there in the patient’s medical history that would potentially contraindicate that kind of program, um, and, and work with a medical provider to sort that out, follow that guidance. And, and you can implement these, uh, as successful, um, you know, cash based services in your practice. Uh, they can be profitable, they can be very beneficial to your patients. And I’ve seen, uh, docs implement these very effectively, um, uh, for the betterment of their patients. Again, don’t forget you’re a DC. So fundamentally you have your portal of entry to these, these offshoot, uh, types of counseling and services has to be through the patient’s musculoskeletal system symptoms, conditions, whatnot. So be a chiropractor first, and then address these, uh, to the extent that they’re comorbid conditions that are complicating factors to the patient’s musculoskeletal problem. That’s all we have time for today next week, uh, is Dr. Sherry McAllister. I’m sure she’s going to have an exciting presentation and we’ll see you next time.