The Surprising Challenge Of Doctors & Chiropractors Working Together & How To (Legally) Do It
Allopathic physicians with a Medical Doctorate (M.D.) or a Doctorate in Osteopathic Medicine (D.O.) often find it valuable to partner with a chiropractic physician (D.C.). This relationship is especially valuable if the allopathic physician is a primary care provider. The relationship can also be quite profitable for a D.C. as well. However, the two types of providers cannot form a direct partnership in most states due to the Corporate Practice of Medicine (CPOM) laws. In addition, anti-referral laws such as the Anti-Kickback Statute (AKS) prohibit the individual providers from receiving financial benefits of any kind for referring patients, especially from other providers. This creates a paradoxical situation where all parties (the M.D./D.O., the D.C., and the patients) benefit from this specific partnership but significant legal roadblocks stand in its way. This article discusses how M.D./D.O.s may work with a D.C. to provide better care for their patients without running afoul of the various regulations governing medical practice.
The M.D.-D.C. partnership (commonly referred to as the “MD-DC”) creates substantial advantages for both types of providers and their patients. The first major advantage of the relationship is higher reimbursements. If an M.D. examines the patient, and sets and supervises the treatment plan for the D.C. to follow, the practice is allowed to bill for the chiropractor’s services as physical therapy under the M.D.’s billing code. For the same procedure, insurance providers, both government and private, reimburse up to three (3) times as much when billed under the M.D. compared to when billed under the D.C. In addition, if the D.C. is working under the supervision of an M.D., s/he can provide physical therapy services to the patients, apart from and in addition to chiropractic care.
The patients also derive significant advantages from MD-DC relationship. An M.D. is capable of treating a larger number of maladies than a D.C.; who must limit his/her practice to treating musculoskeletal issues. Chiropractic medicine only offers minimal prescriptive authority and most D.C.s are not even authorized to write prescriptions, for pain medication or otherwise. Therefore, if both types of providers are collocated and partners, patients only need to go to a single clinic to receive treatment for health issues other than musculoskeletal injuries, including primary care. Also, M.D.s are authorized to issue pharmaceutical prescriptions. Therefore, if the patient’s pain is not adequately addressed through chiropractic manipulations, they may be referred to the M.D. to receive pain management treatment, including pharmaceutical prescriptions. If needed, the M.D. may also be able to refer the patients directly to receive surgical care, cutting out an additional referral step and office visit.
The MD-DC provides patients with access to conservative care, allowing providers to treat patients’ issues with minimal pharmaceutical assistance and expense. In fact, many musculoskeletal injuries may be treatable with only chiropractic manipulation. Easy access to and optimal utilization of chiropractic manipulation allows the M.D. to prescribe a lower dose of analgesic (pain relieving) medication for musculoskeletal injuries. Analgesic medications, including opioids, have significant side effects, most notably, substance addiction. This MD-DC therefore aligns well with national public policy to combat the over-prescription of medications like opioids.
Unfortunately, despite the equitable advantages of these partnerships, they are legally difficult. CPOM laws in most states, including Nevada, prohibit medical practices from being owned by persons not licensed to practice medicine. See NRS 89.070.1. These laws also prohibit a non-M.D./D.O. from having any voting control (through equity) in a professional medical entity. Id. Therefore, an M.D. and a D.C. cannot form a professional medical entity together to provide medical services under Nevada law. However, these providers may still be able to work together under different types of arrangements.
The M.D. can own and operate a medical practice where s/he employs the D.C. to provide their services (the “Employment Model”). This employment arrangement can either be a flat, salary-based compensation, or it may provide the D.C. with an opportunity to earn a bonus based upon case volume and overall practice performance. However, for these bonuses, the M.D. employer and D.C. employee must negotiate the bonus compensation in advance and this bonus arrangement must be memorialized as a part of the D.C.’s employment agreement which must have a term of at least one (1) year to avail the practice of the employment safe harbors created in the anti-kickback laws.
The second method of the MD-DC is the management services organization (“MSO”) model. The two providers form an MSO which does not provide medical services. However, this entity may provide all of the necessary non-medical services to the M.D.’s (and the D.C.’s) practices/clinics, including but not limited to, leasing/buying space and equipment, paying non-clinical staff, billing and collecting, etc. The profit that the MSO makes for providing these non-medical services may be shared legally between the M.D. and the D.C. Each partner in the MSO may choose whether to contribute capital or services, or a combination thereof, and receive distributions of profit accordingly. Further details of the MSO structure can be found in our article entitled ‘The ABCs of the MSO’ published in the summer 2017 edition of Vegas Legal Magazine.1 This article explains the MSO corporate structure, the regulations governing it, and the common pitfalls providers face when participating in such entities.
The State of California is a notable exception in this regard since its CPOM law, the Moscone-Knox Professional Corporations Act, allows other licensed personnel such as chiropractors, psychologists, optometrists, clinical social workers, etc. to receive equity in a professional medical corporation, so long as the sum of the equity held by such other licensed personnel does not exceed forty-nine (49%) percent. Conversely, in a professional chiropractic corporation, the licensed allopathic physician(s) may hold equity so long as the total equity held by a non-chiropractor does not exceed forty-nine (49%) percent.
M.D.s and D.C.s may use either of the aforementioned arrangements (or combinations/versions thereof) to structure their relationship. However, both federal and state regulations addressing anti-referral and CPOM laws are extremely broad and complex. The arrangement, as set up, must be exactingly complaint with all the relevant criteria to survive regulatory scrutiny. Providers must be cognizant of not just the letter of the law, but also its spirit. In addition, the providers must put a robust dispute resolution structure in place at the outset so the interests of all parties, including the patients, are protected in the event of a disagreement between the providers down the line.
The providers are strongly encouraged seek the assistance of experienced healthcare counsel and financial advisors to set up an MD-DC. Counsel will ensure the established arrangement is not only compliant with law and public policy, and will also help implement robust measures to protect not just the interests of the individual parties, but also the confidentiality, integrity, and accessibility of the patient records in the event of a dispute. Finally, utilizing the services of a certified public accountant (CPA) with healthcare experience will help ensure that both providers receive equitable compensation for their hard work and capital, irrespective of the type of arrangement they decide on.
A partnership between an M.D./D.O. and a D.C. creates immense value in the healthcare marketplace. However, given the breadth and depth of the regulations governing such a relationship and the volume of increasingly lucrative violations thereof, it is easy for providers to be lured into relationships that may land them into trouble. Aspiring MD-DC participants should understand that the power of partnership can be as risky as it is profitable. Collaboration is just as important clinically as it is professionally, and the right professional team can make the MD-DC everything it promises to be, and more.
Glenn H. Truitt, Esq. is a managing partner at Ideal Business Partners (www.idealbusinesspartners.com), a multidisciplinary professional services firm serving healthcare professionals with state-of-the-art legal, financial compliance and strategic advice, working together to lift up their practices. IBP consults with ComplyPro (www.mycomplypro.com), a HIPAA compliance services company, serving Nevada and southern California, and employing both traditional and digital compliance tools to develop comprehensive, customized compliance solutions for any size practice.
Malvika Rawal, Ph.D., J.D., is a law clerk at Ideal Business Partners. She received her Master of Science at the University of Delhi in Biomedical Sciences and her doctorate degree in Free Radical and Radiation Biology at the University of Iowa. She then received her Juris Doctor at the University of Iowa College of Law in May 2016. Rawal is deeply involved with ComplyPro, a HIPAA compliances services company.
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