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National Association of Chiropractic Attorneys Meeting June 2017

Tuesday, September 5, 2017   (0 Comments)
Posted by: Adrienne J. Hersh, JD
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National Association of Chiropractic Attorneys Meeting June 2017:

Online Reviews; FAA Exams; Service Animals in the Office 

By:  Adrienne Hersh, ICS Legal Counsel

 

Recently I was privileged to represent the Illinois Chiropractic Society at a meeting of the National Association of Chiropractic Attorneys (NACA).  This spirited group of attorneys includes various state association counsel, together with other attorneys whose interests are aligned with those of chiropractic physicians across the U.S. and beyond. The group meets regularly to share information about legal and legislative issues affecting the chiropractic profession.

 

These sessions always point up the uniquely wide practice scope enjoyed by Illinois chiropractic physicians.  As information is shared among the participating attorneys, the stories reflect that D.C.s in many other states are limited in the services they may render.  Doctors of chiropractic in many jurisdictions do not benefit from the physician status granted to our doctors in Illinois.  One of our most important functions at the ICS is to vigilantly monitor and protect chiropractic’s legal status in this state.  The ICS has introduced many pieces of legislation to clarify and guard our physician status, and we have often initiated revisions to language in other bills that would be harmful to the profession and to chiropractic patients.

 

Another difference I observed between Illinois and other state laws relates to the prohibition against the “corporate practice of medicine.”  Unlike Illinois, some states are easing the prohibition by permitting non-physicians to own chiropractic and other health care practices.  Illinois still strictly prohibits non-physician ownership of medical practices, except when the law makes a specific exception for licensed facilities, such as hospitals.  Illinois courts and legislators believe that requiring physician ownership of clinical practices provides greater assurance that health care decisions are motivated by patient health considerations, rather than by financial profit.  Illinois does not appear to be easing the policy as it pertains to physician practices.

 

On the other hand, Illinois chiropractic doctors grapple with many of the same issues as their colleagues in other states.    Among the other topics discussed by NACA attorneys were:  negative online patient reviews; FAA exams; and service animals in the office, all reviewed below.

 

Online Reviews – to Respond or Not to Respond?

The ICS has previously written about whether or how to respond to negative reviews on physician rating websites.  Providers must navigate a fine line between protecting themselves against unfair criticism and protecting patient confidentiality.  The proliferation of rating websites and social media makes it very likely that most doctors, even those with limited internet presence, will be listed in some rating sites.

 

In the past, the ICS has recommended that doctors respond to negative comments on line, doing so cautiously to protect patient confidentiality.  The ICS now advises, rather than responding in every case, that doctors consider a few possible approaches and decide a course of action based on a careful case-by-case evaluation.  HIPAA enforcement has become more stringent, and the problem with responding to any comment posted by a patient is that, without a patient authorization, the physician is not even allowed to confirm that the commenter is a patient.  Providing any answer that affirms the commenter’s patient status, even if the answer does not disclose specific health information, violates HIPAA privacy regulations. 

 

A couple of approaches were suggested by the NACA attorneys.  Some suggested posting a generic response, without confirming the patient’s status or identity, stating that the physician cannot comment on specific situations without a HIPAA compliant patient authorization, and inviting the person to contact the office to sign a HIPAA authorization.  Other attorneys (and I) believed that this approach poses some risk if not worded carefully enough to avoid disclosure of protected health information.  

 

The ICS believes a safer approach is for the physician to post a general response to a negative comment, such as: “In keeping with state and federal privacy laws, this office does not comment on personal health information of any individual, whether patient or non-patient.  However, we strive to continuously enhance our patient experience, and we encourage those who wish to share information with us to do so in a non-public format by calling our office at ____________________.”  In this way, the physician does not confirm the commenter’s status as a patient, but demonstrates a willingness to accept comments and suggestions in a confidential manner.

 

Another NACA attorney reported success with a different approach:  preparing a lawsuit for defamation.  Defamation is the publication of a false, injurious statement about the good name or reputation of another, and it applies equally to statements made on line as in person.  A statement is defamatory if it impeaches a person's integrity, virtue, human decency, respect for others, or reputation, and lowers that person in the estimation of the community or deters third parties from dealing with that person. In Illinois, impugning a person's ability in his or her trade or business is in a special category considered particularly egregious.  The statement must be demonstrably false to be actionable.

 

When proven, the offending commenter may be required to pay financial damages to the subject of the defamation.  My NACA colleague reported success in having offending commenters remove defamatory on line comments when the attorney (representing the physician) notifies the commenter of the commencement of a defamation lawsuit.  The caveat here is that the statement must legally qualify as defamatory; in other words, it must be false and otherwise meet the definition of defamation.  Otherwise, the judge will deem the lawsuit to be an “abuse of process,” and the person who files it may have create his or her own liability for filing a frivolous lawsuit.  A defamation lawsuit against a disgruntled commenter is simply one tool to consider when the comment is clearly false and injurious to the doctor’s professional reputation.  The goal is not solely to recover financial damages, but, more importantly, to have the comment removed.

 

Keep in mind that the commenter is the only available defendant in a defamation action.   The Internet service provider and the websites are exempt from liability under Section 230 of the federal Communications Decency Act of 1996 (47 U.S.C. § 230).  Therefore, the threat of fling of a defamation case against the provider or the site will be of little or no use in having the site itself remove a negative comment; any removal will need to be initiated by the person who posted the comment.

 

FAA Examinations – Recreational Pilots

The Federal Aviation Administration (FAA) recently issued a new rule – the “BasicMed” rule -- that allows general aviation (non-commercial) pilots to fly without holding an FAA medical certificate, as long as they meet certain requirements.  Until now, the FAA has required private, recreational, and student pilots, as well as flight instructors, to file the same medical certificate as a commercial pilot, including a physical examination with an FAA-designated Aviation Medical Examiner.  Since May 1, pilots may follow the BasicMed rule or opt to continue to use their FAA medical certificate. Under BasicMed, a pilot will be required to complete a medical education course, undergo a medical examination every four years with a state-licensed physician, using the Comprehensive Medical Examination Checklist, and comply with aircraft and operating restrictions. 

 

On first review, it appears that doctors of chiropractic, as state-licensed physicians in Illinois, should be able to perform and sign off on these exams, and some D.C.s and chiropractic attorneys are under that impression.  However, a little-known subsection of the rule requires the physician to discuss all prescription and nonprescription drugs the individual reports taking and their potential to interfere with the safe operation of an aircraft or motor vehicle.  Because it is not within scope in Illinois for chiropractic physicians to advise or make recommendations to patients about prescription drugs, Illinois D.C.s unfortunately do not meet the requirement of the FAA rule.  We will monitor this rule to stay informed if any changes occur.  

 

The Comprehensive Medical Examination Checklist may be found at: https://www.faa.gov/documentLibrary/media/Form/FAA_Form_8700-2.pdf. 

The FAA Advisory Circular containing applicable rules, including the rule regarding medications, may be found at: https://www.faa.gov/documentLibrary/media/Advisory_Circular/AC_68-1.pdf.

 

Service Animals in the Chiropractic Office – ADA Compliance

The Americans with Disabilities Act (ADA) and the Civil Rights Act require business owners, including chiropractic offices, to make a variety of accommodations for persons with disabilities who patronize the business.  The ICS has previously written about required structural accessibility, auxiliary aids for hearing, sight and speech impairments, and translation requirements for persons with limited English proficiency.  ICS members may refer to:  http://www.ilchiro.org/news/news.asp?id=127329&hhSearchTerms=%22accommodation%22 and: http://www.ilchiro.org/news/news.asp?id=128272&hhSearchTerms=%22lep%22.

 

Many persons with disabilities use a service animal to assist in activities of daily living.  The ADA requires public businesses to make reasonable modifications in their policies, practices and procedures to accommodate persons with disabilities.  Service animals fall under this principle.  Therefore, physician offices with a “no pet” policy must revise the policy to permit service animals on their premises.

 

Unfortunately, the need for service animals by some legitimately disabled persons has been misused by some non-disabled people as a way of allowing them to take non-service pets into public places where they otherwise would not be allowed.  This misuse has led to confusion about what physician offices must do to comply with ADA policy regarding service animals.  The U.S. Department of Justice Civil Rights Division has provided useful guidance, some of which may be surprising.   Their FAQs may be found at:  https://www.ada.gov/regs2010/service_animal_qa.html.

 

Under the ADA, a service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability.  The task(s) performed by the dog must be directly related to the person's disability.  The dog must be trained to take a specific action when needed to assist the person with a disability.  Dogs (and miniature horses!) are the only types of animals recognized under the ADA as service animals.  The DOJ provides the following examples: a person with diabetes may have a dog that is trained to alert him when his blood sugar reaches high or low levels; a person with depression may have a dog that is trained to remind her to take her medication; or a person who has epilepsy may have a dog that is trained to detect the onset of a seizure and help the person remain safe during the seizure.

 

The biggest source of confusion pertains to emotional support, therapy, comfort, or companion animals.  The DOJ says they are not considered service animals under the ADA, because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA.  Simply because they provide comfort to the owner does not qualify them as a service animal. However, if the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, the dog would qualify as a service animal under the ADA.

 

Under the ADA, physician offices are only required to allow service animals on their premises.  However, some state or local governments have laws that allow people to take emotional support animals into public places.  Therefore, the ICS recommends that physician offices check with state and local government agencies to find out about these laws.

 

How should office staff respond when a patient presents to the office with a pet?  Of course, a health care office has concerns for sanitation and allergies of other patients.  Staff must determine whether the animal is a service animal.  In situations where it is not obvious that the dog is a service animal, staff may ask only two specific questions: (1) is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform? Staff are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person's disability. 

Surprisingly, the ADA does not require that service animals be certified as such, so office staff may not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal, as a condition for entry.  Although private organizations sell service animal certification or registration documents online, these documents do not convey any rights under the ADA, and the Department of Justice does not recognize them as proof that the dog is a service animal.  Physician offices must rely on the two questions cited above, rather than any “certifications.”  Additionally, the ADA does not require service animals to wear a vest, ID tag, or specific harness, so staff may not deny access because of the absence of these items. 

 

 The exceptions to service animal access are extremely limited and apply only when the presence of service animals would “fundamentally alter” the nature of the goods, services, programs, or activities provided to the public.  For example, service animals might be restricted from a certain area of a dormitory reserved for students with severe dog allergies.  However, the “fundamental alteration” standard probably does not apply in a most chiropractic physician offices.  If a physician is aware that a service dog will be in the office at the same time as a person with allergies, the physician probably must allow the dog and make an accommodation.  This could include rescheduling the patients so they are not present at the same time, or keeping them as far apart as possible in the office and not placing the allergic patient in the same room after the service dog has occupied it.   

 

The only other exception to required access is when a service animal is out of control and the handler does not take effective action to control it, or if it is not housebroken.  However, those situations are extremely rare with true service dogs.

 

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