Chiropractic Treatment: Defenses and Requirements?
I recently was going through a new file in the office that had a seemingly straightforward injury. What I found odd however was the type of care being received by the applicant. Without going into great detail over the type of injury or the facts of the file, lets just say it was not one where I thought chiropractic care was indicated. Although that was my opinion, it appeared that the applicant was using his chiropractor as his primary treater.
As I looked through the treatment reports, I was curious to find out what type of chiropractic treatment was useful for this injury. Unfortunately I could not decipher from the treatment reports what type of specific care was given.
Even though I could not tell what treatment was actually rendered, the California Code of Regulations does explain what a chiropractor can and cannot within the scope of the practice. Regulations limit the scope of the chiropractors care and spell out what are “illegal practices.” An understanding of these regulations can aid one in properly objecting to treatment, objecting to billing practices, and provides the attorney with a host of questions to ask the chiropractor should one sit across the table at deposition.
The scope of practice for chiropractic is set forth in the California Code of Regulations, Title 16, Section 302.
(a) Scope of Practice.
(2) As part of a course of chiropractic treatment, a duly licensed chiropractor may use all necessary mechanical, hygienic, and sanitary measures incident to the care of the body, including, but not limited to, air, cold, diet, exercise, heat, light, massage, physical culture, rest, ultrasound, water, and physical therapy techniques in the course of chiropractic manipulations and/or adjustments.
(3) Other than as explicitly set forth in section 10(b) of the Act, a duly licensed chiropractor may treat any condition, disease, or injury in any patient, including a pregnant woman, and may diagnose, so long as such treatment or diagnosis is done in a manner consistent with chiropractic methods and techniques and so long as such methods and treatment do not constitute the practice of medicine by exceeding the legal scope of chiropractic practice as set forth in this section.
(4) A chiropractic license issued in the State of California does not authorize the holder thereof:
(B) to deliver a human child or practice obstetrics;
(C) to practice dentistry;
(D) to practice optometry;
(E) to use any drug or medicine included in materia medica;
(F) to use a lithotripter;
(G) to use ultrasound on a fetus for either diagnostic or treatment purposes; or
(H) to perform a mammography.
(6) Except as specifically provided in section 302(a)(4), a duly licensed chiropractor may make use of X-ray and thermography equipment for the purposes of diagnosis but not for the purposes of treatment. A duly licensed chiropractor may make use of diagnostic ultrasound equipment for the purposes of neuromuscular skeletal diagnosis.
(7) A duly licensed chiropractor may only practice or attempt to practice or hold himself or herself out as practicing a system of chiropractic. A duly licensed chiropractor may also advertise the use of the modalities authorized by this section as a part of a course of chiropractic treatment, but is not required to use all of the diagnostic and treatment modalities set forth in this section. A chiropractor may not hold himself or herself out as being licensed as anything other than a chiropractor or as holding any other healing arts license or as practicing physical therapy or use the term “physical therapy” in advertising unless he or she holds another such license.
(2) Act. The term “act” means the Chiropractic Initiative Act of California as amended.
(3) Duly licensed chiropractor. The term “duly licensed chiropractor” means any chiropractor in the State of California holding an unrevoked certificate to practice chiropractic, as that term is defined in section 7 of the Act, that has been issued by the board.
So the questions upon receipt of a treatment report or bill should be “Is this treatment within the scope of 16 CCR 302? Is this care and treatment truly chiropractic in nature or does it constitute the practice of medicine?” If the answer is that the treatment appears to fall outside the scope of Section 302 then an objection might be necessary to ensure the chiropractor is not treating outside of the scope of his practice.
Of course statutes and regulations can often be drafted in a manner that raise more questions than answers about what the law allows and what it does not allow. Section 302 does state what the scope of practice is for a licensed chiropractor; but what about the scope of treatment performed by an assistant in a chiropractor’s office? Does all treatment have to be performed by the chiropractor personally? Not always, but there are safeguards in place as enumerated by 16 CCR §312.
Section 312. Illegal Practice
Unlicensed individuals are not permitted to diagnose, analyze, or perform a chiropractic adjustment. An “unlicensed individual” is defined as any person, including a student or graduate of a chiropractic institution, who does not hold a valid California chiropractic license. An exemption is hereby created for student doctors participating in board approved preceptorship programs.
The permitted activities of unlicensed individuals are as follows:
(b) Unlicensed individuals may conduct standard neurological, orthopedic, physical and chiropractic examinations, except they may not perform such examinations which require diagnostic or analytic interpretations nor may they render a conclusion either verbally or in writing regarding the patient’s physical condition. As an example, unlicensed individuals may not perform evaluations of heart or lung soundings. Such individuals shall be at all times under the immediate and direct supervision of a licensed Doctor of Chiropractic.
“Immediate and direct supervision” means the licensed Doctor of Chiropractic shall be at all times on the premises where the examinations are being conducted. The licensed Doctor of Chiropractic shall be responsible for the verification of the recorded findings and will be solely responsible for rendering a conclusion based on the findings.
(c) Unlicensed individuals may administer physical therapy treatments as an adjunct to chiropractic adjustment, provided the physical therapy treatment is conducted under the adequate supervision of a licensed Doctor of Chiropractic. Adequate supervision shall include all of the following:
(2) The doctor shall initially examine and prepare a written treatment program for a patient prior to the providing of physical therapy treatment by the unlicensed individual.
(3) The doctor shall provide periodic reevaluation of the treatment program and of the individual’s performance in relation to the patient. “Periodic reevaluation” shall mean at least once every thirty days the patient is under active care.
(4) The doctor shall perform and record an evaluation of the patient and his or her response to treatment at the termination thereof.
(e) Unlicensed individuals may not administer X-rays unless they hold a valid X-ray technician certificate from the Department of Health Services, or participate under the direct supervision of a licensed Doctor of Chiropractic in a training program approved by that department and set forth in Section 25668.1 of the California Health and Safety Code. This prohibition, set forth in Section 30403 of Title 17 of the California Administrative Code includes the following activities:
(2) Setting up of X-ray machines;
(3) Pushing a button;
(4) Developing of films. The Department of Health Services has determined that unlicensed individuals may develop X-ray film if that is their sole radiologic responsibility.
This section should be of particular interest to attorneys and adjusters. It is ripe with potential questions for the applicant and chiropractor should their depositions be necessary to either object to treatment or a lien. Note how the section basically requires the direct supervision or prior evaluation of a licensed chiropractor before an unlicensed individual can attempt any of those functions listed above.
As an attorney, for every visit an applicant has to a chiropractor I want to know who the applicant was seen by, if a licensed chiropractor was there, what treatment was rendered, how long the treatment took, if an evaluation was performed, and who was in the room for each treatment. Basically, I want to know if the treatment was within the scope of practice of a licensed chiropractor, or was supervised by a licensed chiropractor.
In applying Sections 302 and 312 to the vaguely described injury above, I am still left with the inability to know whether chiropractic care was indicated due to the treatment reports. Once the chiropractor files their lien, the possibility of defending the lien is greatly enhanced by an understanding of these regulations and the ability to check the actual treatment given against them.