Insurance carriers have routinely attempted to limit the chiropractic scope of practice through denial of claims clearly within the chiropractic scope of practice. A recent example occurred in a No-Fault arbitration filed on behalf of a chiropractor by longtime ANJC supporter Sean Hagen, Esq.

In this matter, the chiropractic physician submitted to the No-Fault carrier a claim for payment of Terocin, a topical cream consisting of Capsaicin, Wintergreen Oil, and Menthol. The carrier denied alleging that it is outside of the scope of practice for a chiropractor to recommend the patient use this topical cream for pain.

A PIP arbitration was filed to compel payment and the arbitrator agreed with the carrier, denying the claim as outside the chiropractic scope of practice. Mr. Hagen thereafter appealed and filed an Order to Show Cause in the Superior Court to vacate the arbitration award. The ANJC, as well as the State Board of Chiropractic Examiners, filed “friend of the court” briefs in support of the filing and provided detailed information to the Court showing that a “Non-Legend Drug” ointment such as Terocin was clearly within the scope of practice. The Court recently agreed and issued an order on February 12, 2024, vacating the arbitration award on the basis that the arbitrator committed an error of law in finding that the scope did not include recommending or administering such Non-Legend Drug ointments.

The Court agreed with the ANJC and Board of Chiropractic Examiners and held that topical creams that can be ordered over the counter, such as Terocin, can be recommended or administered by a chiropractor in New Jersey within their scope of practice. The Court pointed out that the arbitrator misconstrued the chiropractic scope statute, which was substantively amended in January 2010, to carve out the prior prohibition of prescribing or recommending any drug or supplement to a patient. 

Prior to January of 2010, when the New Jersey Chiropractic Scope of Practice was substantively revised and expanded for the first time in fifty years, a chiropractor could not recommend or advise any patient to utilize any nutritional supplement, botanical, or other over-the-counter substance within their scope of practice. However, the chiropractic scope of practice was substantively amended and expanded in January of 2010 and signed into law by New Jersey Governor Jon Corzine as one of his last official acts in office.   The amendment expressly included nutrition and non-prescription supplement and botanical counseling and advice as within the scope of chiropractic practice, wherein before, it was not. Prior to 2010, the scope statute provided: “A licensee shall not offer nutritional advice as treatment for a specific disease, defect or deformity. A licensee shall not, incidental to chiropractic care, sell dispense or derive any financial benefit from the sale of vitamins food products or nutritional supplements. A licensee shall not represent himself or herself as a nutritional consultant.”See, N.J.S.A  45:9-14.5 (1955).

The amendments to the statute in 2010, provided the following new scope of practice: A licensee may: Provide dietary or nutritional counseling, such as the direction, administration, dispensing and sale of nutritional supplements, including, but not limited to, all food concentrates, food extracts, vitamins, minerals, herbs, enzymes, amino acids, homeopathic remedies and other dietary supplements, including, but not limited to, tissue or cell salts, glandular extracts, nutraceuticals, botanicals and other nutritional supplements; provided the chiropractor has successfully completed a course of study concerning human nutrition, consisting of not less than 45 hours from a college or university accredited by a regional or national accrediting agency recognized by the United States Department of Education and approved by the board.”  See, N.J.S.A  45:9-14.5 (2010)(emphasis added).

The arbitrator failed to appreciate that the 1995 prohibition on prescribing drugs or medicine carried over in the 2010 amendments but that the 2010 amendments critically provided a carve out of this prohibition to include the very botanicals, herbs, and supplements at issue here. Thus, while chiropractors still could not prescribe “legend” drugs or pharmaceuticals, after 2010 they were expressly permitted to recommend non-legend drugs that fit the categories above in the amended language. Herein lies the mistake of law by the arbitrator – he relied on the 1955 drug and medicine exclusion while failing to appreciate and apply the post-2010 express statutory permission for recommending non-legend drugs that fall within the statutory categories permitted by the amendments to the law.

The Court agreed with this analysis and vacated the arbitration decision denying the claim. The matter will be remanded back for another arbitration to be determined based upon the guidance provided by the Court. 

This is a great victory for chiropractic as it prevents the constant chipping away and constriction of the chiropractic scope of practice by insurance companies. If any member would like a copy of the decision for use in their own claims, please contact ANJC headquarters at info@anjc.info.

Jeffrey Randolph, Esq.
ANJC General Legal Counsel