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Hello everyone. This is Michael Miscoe with Miscoe Health Law for this week’s installment of the ChiroSecure Growth Without Risk Program. And this week we’re gonna talk about risk areas associated with in quotes. Functional Medicine and before we talk about it, there’s a lot of my clients indicating they want to get into functional medicine.
So of course I had to which, to what it is, and I didn’t come up with the answer that I thought I was, I thought that they were getting into like rehabilitative treatment. Vestibular stuff. No, medicine is a model of care. That is by definition offers a patient-centered approach to chronic disease management, and it supposedly seeks to answer the question why a patient is ill so that they can receive personalized, effective care for whatever their healthcare needs are.
History centric analysis, what’s going on with the patient’s past medical history and their, the objective is to identify root causes of illness to include triggers such as poor nutrition, stress, toxins, allergens, genetics, and. Patient’s own microbiome. Once the triggers are identified, then the provider supposedly customizes a healthy living plan, which addresses a wide variety of components of a patient’s life or lifestyle, physical needs, nutrition, exercise, sleep, mental, emotional stressors, social work, and community life.
So it’s a very broad based approach to disease manage. and the concerns that arise, especially for chiropractic physicians is that we run into some licensure problems with a diagnostic and treatment focus that is centered on functional medicine. And here’s why. Many state licensure statutes restrict the scope of chiropractic to musculoskeletal conditions involving articulation of the spine and or extremities.
What that means is that the condition that you’re treat. Diagnosing, evaluating and so forth has to have its origin in a problem. In the articulations of the spine were more commonly known the subluxation, and because of that subluxation focus that block, doctors are chiropractic out from analysis of other conditions.
Now it gets a little tricky because there are there, there are inner relationships between some body problems, somatic problems, and musculoskeletal problems. I apologize.
Spam, of course, but the, but that’s not always the case. And I’ve had some clients run into trouble because they were doing nutritional programs to lower a patient’s a1c, like for patients with diabetes and things like that. And they had testimonials and about how people got off insulin and off their diabetes drugs, whatever.
Same thing with hypertension and some of the problems that arose from the licensure board is that you’re offering to treat a medical. And that’s outside your scope of practice. Now, what the physician was actually doing was a nutritional weight. An exercise program designed to make the person healthier.
Functional medicine. The only problem is that there wasn’t a chiropractic component to it, and that physician’s licensure statute, like many, requires a nexus between the condition that you’re treating or the treatment that you’re providing and a subluxation in the spine and where that doesn’t exist, you’re gonna run into problems the second C.
Of the problem was had to do with marketing. And before we dive into marketing, I want to roll back just a few minutes on nutrition. I’ve seen many chiropractors do nutritional weight loss programs, for example, and that’s fine. As long as you know the patient is evaluated for a musculoskeletal condition, the patient is identified as a comorbid condition to their musculoskeletal problems, and the nutrition and exercise, or whatever’s being recommended is to address that problem as a complicating factor to their musculoskeletal condition.
Now, When a chiropractic physician whose license is restricted to relating everything to an articulation of the spine just offers nutrition and weight loss, and there’s no chiropractic exam, no x-rays to the extent that they would be necessary. There’s no treatment plan involving chiropractic treatment.
It’s just. Weight loss. I’ve seen docs run into trouble, especially when a patient doesn’t lose weight, and that’s usually because the patient doesn’t follow the recommendations, meaning cut out the bag of Snickers bars that you eat for lunch every day. They don’t do that. They don’t lose weight. Big surprise.
And then they blame the doctor, and then they complain to the board and the board’s What are you doing? To some extent, they find the marketing misleading and or they’re treating a condition outside their scope. They didn’t. There’s no documentation or analysis relating. Why weight loss is a component, or how weight loss is a component of their treatment of a musculoskeletal condition.
Be wary of licensure restrictions. Get very familiar with your scope of practice, how it’s defined, and where you have limitations that require a nexus between what you’re doing. In an articulation of the spine. I don’t think you make that nexus with a condition like diabetes or hypertension, but maybe you think you can.
But a, as a general rule, counseling by a physician as part of an evaluation management service, which becomes a time component, isn’t gonna raise anybody’s eyebrows. But consider the licensure significance, and then also from a coverage perspective, if you’re doing nutritional counseling for weight loss sake, it’s not gonna be covered.
It’s not covered by Medicare. It’s not covered by every commercial plan I’ve ever seen. They don’t cover that. For just pure weight loss sake. There has to be a nexus. It’s gotta be a comorbid condition, and they’re certainly not gonna cover functional medicine for medical problems outside your scope of practice because those services wouldn’t be considered legally performed.
And if they’re not lawfully performed, they’re not obligated to reimburse for those for that treatment. Let’s get into the marketing stuff, and I’ve seen docs get trapped in this realm with their licensure boards as well. Fundamentally, we have. FDA issues that potentially come up and then licensure issues with respect to misleading advertising in all 50 states.
For all physicians, it is inappropriate or improper and will raise the ire of your licensure board if your marketing is misleading, your making claims of the ability to treat certain problems that are either outside your scope of practice, which would make those claims false. , and at least from a legal perspective, even if you did get a result, you can’t claim that in marketing.
And secondarily, the idea is that you have to be cautious about your testimonials, your print, web, even marketing and statements that you make to patients, emails, all that stuff comes into play insofar as, Hey, doc, you promised this or you suggested that I would do this and this result would. and it wasn’t true.
So you have to be very cautious that when you’re doing a, let’s say, an experimental investigational program, weight loss, functional medicine, take your pick something that either the FDA hasn’t cleared as being effective for treatment of that problem or that you don’t have a mountain of scientific evidence.
And when I say scientific evidence, I’m not talking. Anecdotal case studies that suggest that patients get better with this or with that I’m talking about actual peer reviewed double-blind, either cohort or randomized control trial studies of large enough population that they’re accepted in the industry as being valid.
Otherwise you’re. , you need to have appropriate, you need to be very cautious how you market, but also you need to have appropriate disclaimers and or consents with the patient. Making sure that they understand that whatever outcome you’re hoping to get isn’t a guarantee. It might or might not happen.
These are the things that the patient has to do, and if they don’t do them, then the. Absolutely won’t happen, so forth and so on. I analogize the type of consents that I’d be looking for to the consents that we do for multidisciplinary practices, getting involved in human cellular tissue products. Those, they’re not FDA cleared, they’re 360 1 products under the Public Health Act, which means you can’t say anything about ’em.
The FDA hasn’t cleared them for marketing for any, the diagnosis or treatment of any condition. They’re, it’s almost like a homeopathic product. So you need very strong consents, making sure you’re putting the patient on notice that the result that you hope to get is speculative. And it might happen, it might not happen.
And disclose very clearly that there’s no evidence that this is gonna solve your problem. So think about the people doing the diabetes stuff. We’re not going, our objective is not to get you off diabetes medicine. If that happens, that’ll be a decision from your medical doctor. Our objective is to get you heating eating.
Living a more healthy lifestyle, less stress, and that’s where the behavioral stuff comes in. If you do that with appropriately licensed folks, taking that holistic approach, if it happens that your A1C gets under your under control or your cholesterol gets under control, and you end up not having to take these meds, that’ll be between you and your primary care doc.
That’s not our objective. Our objective is to make change your lifestyle into a more healthy lifestyle and then whatever. However that helps you out, that’s to be determined. Unfortunately, some folks will go out, Hey, we’re gonna get you off your insulin medication or whatever. And that’s a very dangerous thing to say with functional medicine.
There’s not a lot of data out there. I think there’s great promise for it. Even the Cleveland Clinic has a functional medicine program, so that means it’s not a fly by night kind of great idea, but it doesn’t have mainstream acceptance, especially in the insurance industry. Yet see the value of it cuz they don’t cover it, in which case, concluding how we doing on time, when we’re doing okay with the billing aspects of it, because few payers cover it, it’s a cash service and you need to address that.
So assuming you’re within the scope, you’ve figured out a way to get in with within the scope of your licensure or you’re using appropriate medical physicians or practitioner. To implement this program. Great. As a chiropractor, be very cautious about recommending or getting too involved in the discussion of medical care, cuz that’ll get you in trouble and keep this stuff cash again.
Do the appropriate disclosures to let the patient know that it’s not covered, it won’t be billed. Get them to acknowledge that it won’t be billed. If you really want to nail it down, have the patient sign a HIPAA restriction on. Uses, which prohibits you from ever disclosing information about the services that they pay cash for, not because of a deductible, but they pay cash because it doesn’t get built.
It restricts you or absolutely prohibits you from ever submitting that protected health information to an insurance company for payment or healthcare operations. Those records could never be. To an insurance company, even if the patient was in an auto accident and they wanted those records for in information about patient’s prior conditions, they couldn’t be disclosed.
The patient would have to rescind the disclosure in order for those to come out. But the point being the reason I like the restriction on uses and disclosures cuz it absolutely prohibits. Billing. So patients say couldn’t you bill it to see if it’s covered? No, because how would you bill it? It’d probably be an e and m, and it would be covered until they figured out what you were doing.
Then they take the money back. Long story short, I think functional medicine has some promise. I see a lot of practices, not a lot. A number of my clients have approached me about doing it, and in each case, look, start with your licensure rules. Understand your scope. Once you figure out a way to put this within your scope of practice, if you can, or you bring in medical staff so that you, it’s within their scope, then be cautious about your marketing.
Don’t even think about billing this stuff, even though you could get the e and m’s covered, you don’t want coverage for this stuff because once, if they ever audit it, trust me, that money’s going back. Oh, and there’s one last thing that we should probably talk about, especially where. Whether you’re a chiropractic office, a multidisciplinary office, there are some practices that have sent assistance, whether medical assistance, chiropractic assistance to some coaching program in this completely unlicensed person is gonna be the patient’s coach.
So the patient comes to a seminar and they learn about functional medicine and any signup for a program, and then their coach is somebody that’s un. Okay. Death on a stick, folks. Okay. This person, I don’t care what type of training they have to be a coach or a lifestyle coach. The problem is that all of the interaction between the patient and the recommendations that meet are made need to be done by the doc now, and it gets quirky.
you could do, let’s say you had a registered nutritionist, cuz I have a client that got into nutrition and the only way that it worked is you kept the chiropractors completely out of it. The chiropractors never go there. They don’t own any part of this nutritional and weight loss practice. It’s strict run.
The doctor’s wife owns it, who is not a doctor. And they hired registered dieticians and nutritional counselors and that’s the way they did it. But they’re licensed folks licensed to do that. So one thing you gotta understand is that look at the laws in your state. I’m sure you’re gonna find that dieticians, if you’re going to talk about meals and what they’re gonna eat, that’s a licensed activity.
Nutritional counseling, that’s probably a licensed activity. And when you have unlicensed folks coaching your patients on these issues, They’re practicing in an unlicensed capacity and it’s gonna blow back on you enabling the unlicensed practice of either chiropractic medicine, nutrition, whatever. So be very careful there.
That’s another common mistake that I see being made as practices approach the functional medicine model. So that’s all we have time for today. I hope that was helpful and interesting, and we’ll see you next time.