HEALTHCARE PROVIDER NEWSLETTER
Published by PEICK & ASSOCIATES, P.S.
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Vol. 2000    Issue 2

A Chiropractic Doctor's Scope of Required Diagnosis and Referral
    In a recent email newsletter we discussed the scope of required 
diagnosis 
and referral within the State of Washington as it pertained to the 
case of 
Mostrom vs. Pettibon , 25 Wn. App. 158 (1980).  The Chiropractic 
Journal 
asked to reprint that newsletter and subsequently did so.  
Unfortunately, 
they did not indicate they were positioning the piece as a Point-
Counterpoint 
discussion with Mr. Scott Blair.  Now telling me this piece of 
information 
would not have changed my opinion, but I would have buttressed my 
comments 
with additional analysis to insure the article was not such a sitting 
duck 
for Mr. Blair's retort.  
Now, I have nothing but respect for Scott Blair.  He and I both 
struggle to 
preserve our client's rights and remedies in the face of considerable 
opposition by the carriers.  However, I am unhappy to report that Mr. 
Blair 
may have overzealously given my precautionary comments short 
shrift.   
    First, Mostrom vs. Pettibon has never been overruled.  In a 
profession 
where a "recent" trend in the law may have started at the turn of the 
century, a case twenty years old is barely out of its infancy.
    Second, the CCP to which Mr. Blair refers has never been adopted 
as a WAC 
in this state, and I am not even convinced from discussions with the 
Chiropractic Quality Assurance Commission that CCP was ever 
adopted as a 
policy; notwithstanding the considerable confusion surrounding its 
adoption 
or deferral.  More importantly, the policy, even if adopted, is not 
necessarily a trump card to the common law requirements of the 
State of 
Washington.
    Third, getting a patient to sign a waiver of a provider's common 
law 
negligence in advance may run afoul of the public policy in this state 
prohibiting such exculpatory clauses, particularly in healthcare 
professions.
    Fourth, some of the waivers I have seen may fail to pass the 
hurdle of 
full disclosure and informed consent.  I readily admit that I do not 
handle 
healthcare malpractice cases (never struck me as a particularly 
good PR 
position when I represent so many doctors themselves) so this 
latter comment 
is more cautionary than ex cathedra. 
    Finally, I would like to know if this subluxation only concept and 
waiver 
have even been tested in a Washington State courtroom, and if so, 
the outcome 
for the professional.  In the meantime, stay alert.  It's a jungle out 
there.

Cookbooks and Patient Treatment Guidelines
    In a recent Wall Street Journal article, Barbara Martinez reported 
that 
patient care guidebooks published by a local actuarial firm, Milliman 
& 
Roberts (M&R) are being assailed in class action litigation as unduly 
restrictive and unfair.  While M&R are not yet defendants in these 
cases, 
there guidebooks are being criticized as a result of a study which 
came out 
in mid-September indicating a vast gap between the treatment 
recommended as 
"reasonable" by M&R, and the actual treatment periods prescribed by 
doctors 
and hospitals.  While M&R denies their guidebooks are designed to 
manage cost 
instead of care, the results of their utilization seem to be headed in 
that 
direction.
This piece of information may have relevance to CAM providers to 
the extent 
that similar guidebooks are being used by insurance carriers, PIP 
carriers 
and auditors to determine payment or refund policies.  In litigation 
against 
Regence being handled by this firm, the audit department has 
indicated they 
use "guidebooks" (as yet of undetermined origin) in their audit 
operations.  
Chiropractic doctors and other CAM providers should remain alert to 
being 
reviewed by such tactics, and report such tactics to the WSCA.

The Current Status of Nutritional Supplements in Chiropractic
    There has been some understandable confusion regarding the right 
of 
chiropractic doctors to recommend and sell nutritional supplements 
to their 
patients.  In 1997, the Chiropractic Quality Assurance Commission 
decided to 
repeal four (4) separate regulations, two of which pertinent to this 
discussion were WAC 246-808-525, dealing with health food store 
ownership, 
and WAC 246-808-530 dealing with the historic prohibition against 
sale of 
vitamins and supplements.  On August 21, 1997, the Chiropractic 
Quality 
Assurance Commission (CQAC) approved the expedited repeal and an 
order was 
signed on September 22, 1997.  Calls began to be received by CQAC 
seeking 
clarification of the repeal's effect on the sale of nutritional 
supplements.  
CQAC consulted their AAG, Ann Ryan, who informed them that while 
the repeal 
of WAC 246-808-530 allowed chiropractors to sell supplements and 
vitamins, 
RCW 19.68.010 restricted sale prices to be "actual cost".  
    When informal persuasion failed to move CQAC or the Department 
off this 
position, litigation was commenced by Peick & Associates on behalf 
of Biotics 
NW, WSCA and other doctors and nutritional companies.  In the 
Spring of 2000, 
Judge Jarvis in King County ruled that the AAG opinion was incorrect 
and 
chiropractic doctors could sell nutritional supplements over actual 
cost.
    As a result, these are the rules by which nutritional supplements 
can be 
sold:
    1. You may price them at any reasonable price.
    2. You must not recommend such supplements to alleviate any 
particular 
condition, but rather to improve the patient's overall health and 
maintain a 
healthy regime. 
    3. You must chart the need for supplements if your are 
recommending them 
in your role as a healthcare professional.
    4. You may not charge L&I or carriers for the nutritional exam or 
supplements at this time. 
    5. This ruling does not legitimize multilevel sales of 
supplements, and 
that issue remains undecided by the courts at this time.  Caution is 
advised.

PEICK & ASSOCIATES, P.S. is a law firm located at 2000-112th 
Avenue NE, 
Bellevue, Washington.   425-462-0660  We serve as Legal Counsel to 
the WSCA.  
We welcome your referrals.  We provide services to your patients in 
personal 
injury and wrongful death; and to providers in healthcare law, 
professional 
discipline, and business issues.  Visit our website at www.peick-
usa.com for 
forms and information which can assist you and your patients.