6 I Summer 2018 www.anjc.info date RE Q&A Legislative Update Legal Ease rship Director’s UPDATE Legal Q&A S C H O L By Jeffrey Randolph ANJC Legal Counsel Many chiropractic practices prescribe or sell durable medical equipment (“DME”) to their patients such as mattresses, EMS units or other products. These practices raise a number of legal concerns that must be addressed by the practice to ensure legal compliance. The following is a brief summary of the major issues to address using the prescription or sale of a therapeutic mattress as an example. Scope of Practice First, it must be determined that the prescription or sale of the DME is within the doctor’s scope of practice. It is typically within the chiropractic scope of practice to recommend the DME when the product would provide some benefit related to a patient’s musculoskeletal complaints, including those related to sleep and recumbent discomfort. The recommendation should be based on such considerations as the patient’s need to replace old, unsupportive or otherwise uncomfortable bedding, to improve postural support, eliminate backache and stiffness, or even to promote restfulness and sleep. The chiropractic recommendation might also provide advice regarding a patient’s particular sensitivities or needs that the product best addresses. It is possible for a chiropractor to exceed the scope of practice with regard to the product. A somewhat fanciful example of a chiropractor exceeding the scope of practice in New Jersey would be a representation that use of the mattress would improve patient virility and sexual function. However, scope of practice concerns should not arise as long as the chiropractor, regardless of the product involved, does not recommend it for conditions or complaints that are non-musculoskeletal or for conditions that are expressly reserved to medical or other health care professionals. Unprofessional Conduct or False and Misleading Representations New Jersey has laws establishing a “code of professional conduct” within the defined scope of practice for chiropractic. This code of conduct mandates that the chiropractor not make false and misleading statements with respect to any care, treatment or product. This ethical prohibition includes the false disparagement of competing treatments or products, as well as positive promotional recommendations. It is also unlawful for a chiropractor to misrepresent a patient’s need for a particular treatment or item. However, the code of conduct does not prohibit a chiropractor from recommending a DME product provided the recommendation is not accompanied by false statements or promises regarding the benefits of the product or misrepresentations regarding the patient’s need for the product. The chiropractor may express an honest opinion as to the improvements or comfort that the patient might obtain from purchasing the product. This opinion can be based on an articulatable explanation of the product features as they relate to the patient’s complaints, or aspirations for improved sleeping comfort, postural support or relief from morning stiffness or back pain. Fee Splitting, Kickbacks and Improper Commissions Federal and State laws exist to ensure that professional recommendations and referrals are not influenced by the promise of receiving fees or other compensation for the referral or recommendation. The prohibition of this conduct becomes clearer and more pronounced when a patient is unaware of the fact that the professional is receiving a fee from the provider of the item or service purchased. In this regard, consistent with the limitations on the permitted scope of practice and professional propriety discussed above, New Jersey law generally permits a chiropractor to sell health care items and make a profit. Chiropractors therefore regularly sell in their offices items ranging from vitamins to orthotics and exercise equipment to braces and supports. However, care must be taken if discounts are given to patients which could be construed as an illegal inducement to buy the product. Also, payment of “fitting fees” or “advice” must be looked at closely for compliance. There is no express prohibition on paying a reasonable fee to a chiropractor to assess his patient records and his own experiences with the DME product and provide this information to a patient in return receive reasonable compensation. However, a substantial number of federal and state privacy laws need to be addressed in this regard to ensure that the compensation is fair market value, set in advance, and not an illegal kickback or inducement which is beyond the scope of this article. Conclusion Each particular arrangement with a DME provider may vary and it is strongly recommended that the doctor consult with a health care attorney to review their particular arrangement before engaging in the prescription or sale of DME where the doctor obtains a financial benefit from the prescription or sale. Marketing approaches may then be refined and to the extent the law or the enforcement discretion is uncertain and specific administrative rulings or case law can be appropriately addressed. Marketing & Sale of Durable Medical Equipment by Chiropractors: Legal Concerns