Please Meet Attorney Ayesha Mehdi, Columnist for the NCC

Ayesha Mehdi, JD, MHSA, partner at Spencer Fane, LLP

BIO

Ayesha Mehdi, JD, MHSA is a partner at Spencer Fane, LLP, a national law firm with 18 offices across the country. She focuses her practice on representing health care practitioners, along with various health care businesses, in connection with corporate, transactional, licensure, and regulatory matters. She counsels clients on fraud and abuse; health information technology (HIT) and compliance, including the Stark II physician self-referral law, the Medicare/Medicaid anti-kickback statute, corporate practice and fee-splitting restrictions; antitrust; health information privacy and security (HIPAA and HITECH Act); and health care reimbursement.

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Telehealth Considerations
For Chiropractors 
In The Age of Covid-19

By: Ayesha Mehdi, Esq.

The Telehealth arena is evolving quickly due to regulatory and technological changes that have occurred and will continue to develop in the age of Covid-19. As such, frequent review and adjustment of telemedicine platforms and policies, will be required in order to remain compliant.

Licensure requirements for practitioners providing telemedicine varies from state to state, and many of the current authorizations for telemedicine are temporary, and in place for the coronavirus pandemic. Furthermore, the definitions of “telemedicine” also varies depending on the state. In Nevada, "Telehealth" is defined as the delivery of service from a provider of health care to a patient at a different location through the use of information and audio-visual communication technology, not including standard telephone, facsimile, or electronic mail.

The current Federal regulations focus on the privacy and data security concerns for telemedicine platforms, as well as the services Medicare and Medicaid will deem reimbursable. For now, temporary authority has been granted to provide certain reimbursement of telemedicine services “during the pendency of the coronavirus pandemic”. This authority is temporary, and may expire at any time. The prior approach was "no reimbursement" for telemedicine services. A revised rule would need to be implemented in order for a permanent change to be established.

Similar temporary measures or executive orders have been put into place in the states. 

Currently, Nevada's emergency directive 011 remains active until the end of the COVID-19 emergency. Professional licensing boards regulating practitioners shall temporarily waive certain licensing requirements to allow the practice of certain currently unlicensed skilled medical professionals during the pendency of the COVID-19 crisis. 

When adding telemedicine for your chiropractic practice in response to COVID-19, please be aware of the many considerations necessary. Steps to consider include: 

     • Contacting your state board to make sure you can perform telehealth as part of your licensure (Please see below)
     • Contacting your malpractice carrier to ensure you have telemedicine coverage;
     • Contacting the payers you plan to bill regarding coverage of telemedicine services;
     • Finding a telemedicine platform that is compliant; and,
     • Retaining qualified healthcare counsel.

*This article is for informational purposes only and is not intended to constitute, nor does it constitute, legal advice or guidance. 

Ayesha Mehdi, Esq. is a Partner in the Las Vegas office of Spencer Fane LLP, where she represents healthcare providers as a member of the firm’s healthcare group. She can be reached at 702-408-3416 or amehdi@spencerfane.com

Nevada Telehealth Findings and Declarations

629.510 Legislative NRS 
Findings and Declarations. 
The Legislature Hereby Finds and Declares That:

     1. Health care services provided through telehealth are often as effective as health care services provided in person;
     2. The provision of services through telehealth does not detract from, and often improves, the quality of health care provided to patients and the relationship between patients and providers of health care; and
     3. It is the public policy of this State to:
Encourage and facilitate the provision of services through telehealth to improve public health and the quality of health care provided to patients and to lower the cost of health care in this State; and      (a)
Ensure that services provided through telehealth are covered by policies of insurance to the same extent as though provided in person or by other means.      (b)
     (Added to NRS by 2015, 621)

629.515 Valid license or certificate required; exception; restrictions; jurisdiction over and applicability of laws.      NRS
     1. Except as otherwise provided in this subsection, before a provider of health care who is located at a distant site may use telehealth to direct or manage the care or render a diagnosis of a patient who is located at an originating site in this State or write a treatment order or prescription for such a patient, the provider must hold a valid license or certificate to practice his or her profession in this State, including, without limitation, a special purpose license issued pursuant to NRS 630.261. The requirements of this subsection do not apply to a provider of health care who is providing services within the scope of his or her employment by or pursuant to a contract entered into with an urban Indian organization, as defined in 25 U.S.C. § 1603.
     2. The provisions of this section must not be interpreted or construed to:
Modify, expand or alter the scope of practice of a provider of health care; or      (a)
Authorize a provider of health care to provide services in a setting that is not authorized by law or in a manner that violates the standard of care required of the provider of health care.      (b)
     3. A provider of health care who is located at a distant site and uses telehealth to direct or manage the care or render a diagnosis of a patient who is located at an originating site in this State or write a treatment order or prescription for such a patient:
Is subject to the laws and jurisdiction of the State of Nevada, including, without limitation, any regulations adopted by an occupational licensing board in this State, regardless of the location from which the provider of health care provides services through telehealth.      (a)
Shall comply with all federal and state laws that would apply if the provider were located at a distant site in this State.      (b)
     4. As used in this section:
“Distant site” means the location of the site where a telehealth provider of health care is providing telehealth services to a patient located at an originating site.      (a)
“Originating site” means the location of the site where a patient is receiving telehealth services from a provider of health care located at a distant site.      (b)
“Telehealth” means the delivery of services from a provider of health care to a patient at a different location through the use of information and audio-visual communication technology, not including standard telephone, facsimile or electronic mail.      (c)
_  (Added to NRS by 2015, 621)

Depositions tips for Chiropractic Doctors

Personal injury cases are a part of nearly every chiropractic physician's practice. It is estimated that one-third of all motor vehicle crash victims are treated by chiropractors. Many of the collision injuries treated by chiropractors involve whiplash, soft tissue injuries, musculoskeletal injuries, strains, and sprains. As part of your practice, you are frequently called upon to provide testimony during depositions in personal injury cases. The credibility of a chiropractor depends on how long he or she has been treating the plaintiff since the incident and what he or she projects the plaintiff's needs will be in the future. Credibility also increases when a chiropractor aggressively treats a patient immediately after an accident, and then reduces treatment to a point where the patient is told to come in on an as-needed basis.

Defense counsel will usually take your deposition. Expect plaintiff’s counsel to meet with you briefly before the deposition. During that meeting, you should share the facts that you hope to develop through your testimony, review your records thoroughly and request plaintiff’s counsel to demonstrate how a defense lawyer will try to use the facts to weaken your testimony and to warn you of any expected areas of cross-examination. Also, have plaintiff’s counsel point out to you specifically what may be argued to be a pre-existing condition of the patient. Plaintiff’s counsel will want to ensure that you can establish that the injury was caused as a result of the accident and that your treatment was reasonably necessary for the patient to function more normally. He or she will expect you to testify to facts that demonstrate how the injury prevented the plaintiff from working in the past and how the injury will affect the plaintiff’s ability to earn income in the future.

During the deposition, defense counsel may ask questions about your pre-deposition meeting with the plaintiff’s lawyer. Respond by keeping your answers vague. For example, you may state that you briefly met plaintiff’s counsel before the deposition and simply discussed your treatment. Do not give any indication that would suggest that the plaintiff’s counsel prepared you for the deposition. One way to protect yourself is to hire your own counsel for the deposition. Also, note that you may be questioned about your relationship with the plaintiff’s attorney. Again, honesty is the best policy. Generally, it is best practice to provide your patients with a list of attorneys that they may consult with. This will ensure that there is no bias when you give your testimony.

During the deposition, be aware that defense counsel will use any positive statement in the medical records to suggest that the plaintiff is no longer suffering from the injury, and if there is no improvement, then defense counsel may argue that the patient’s visits with you were a waste of resources and time. Do not get frazzled by this tactic. Another technique would be to undermine your treatment because you are not a medical doctor. Ignore the tone behind such questioning and simply tell the truth about the scope of your practice, without becoming defensive or apologetic. Further, it is common for plaintiff’s attorneys to provide certain physicians with letters of protection in which a lawyer promises that before distributing any settlement funds or jury awards to his or her client, he or she will contact the physician and make sure that the doctor’s bill has been taken care of. Defense lawyers will try to create the impression that the doctor has a financial interest in the case. Again, do not get defensive. Simply state that it is standard practice to obtain a letter of protection, and it does not create a financial interest in the case, since you will get paid regardless of what happens in the lawsuit.

Overall, you need to be prepared for depositions. Hire a lawyer if you need to, and do not stress. Just know that you should not feel compelled to answer every question, and as long as you were to the point and honest, you did fine. Finally, rest assured that if there are any errors in the answers given, many states (including Nevada) and the federal rules provide an opportunity for you to attach a correction sheet to the transcript together with an explanation for the change.

Nevada Chiropractic Council's

Resolution Supporting the

Chiropractor's Right

To Clinical Decision-Making 

Regarding Radiology

Whereas, the Nevada Chiropractic Council (NCC) is a professional organization, the mission of which is to protect and enhance the chiropractic profession through organized leadership, education, and the promotion of the chiropractic discipline and practice; and,

Whereas, the NCC works to protect the right of individual chiropractors to choose the clinical procedures within the chiropractic standard of care and practice, that he or she believes best address the patient's complaint and/or diagnosis; and,

Whereas, the "performance, ordering, or use of x-ray" is included in the definition of "chiropractic" in the Nevada Public Health Code NAC 634.412, which states the following:

Competence. (NRS 634.030)

1.  A licensee shall maintain competence in:

(a)  The application of chiropractic; and

(b)  The production and interpretation of radiographs; and,

Whereas, radiology is a scientifically proven component of the chiropractor's clinical practice, as the role of diagnostic radiology is clinically useful in evaluating multiple aspects of human spinal anatomy, biomechanics, postural faults, misalignments, vertebral subluxation complex, and other pathologies; and,

Whereas, one of the primary tasks of the NCC is to educate and inform Nevada's chiropractic community, other organizations, and the public on the latest requirements and trends in chiropractic treatment protocols; and,

Whereas, the NCC recognizes the need for scientific evidence to support chiropractic care provided by chiropractors across the state and the nation, and that the utilization of rational, evidence-based clinical guidelines and "best practice" documents are critical ways to implement research findings into clinical practice; and,

Whereas, the NCC also recognizes that clinical practice guidelines have the potential to streamline healthcare delivery, improve patient outcomes, and increase safety by using best available scientific evidence and broad consensus to develop appropriate care parameters; and,

Whereas, the NCC further recognizes that clinical practice guidelines do not, cannot, and should not represent a "set-in-stone" prescription of care, as they do not take into account such critical factors as the judgment of the chiropractor and the individual circumstances and values of the patient; and,

Whereas, the NCC is aware of recent publications from the American Board of Internal Medicine (ABIM) Foundation, as part of the ABIM Foundation's Choosing Wisely® campaign, regarding the appropriateness of radiological spinal imaging for patients with low-back pain during the six weeks after onset in the absence of red flags; and,

Whereas, the NCC Board of Directors fundamentally rejects the statement in this document that states:  "Do not obtain spinal imaging for patients with acute low-back pain during the six (6) weeks after onset in the absence of red flags."; and,

Whereas, the NCC recognizes that entities such as insurance companies and insurance claims reviewers are using this publication to deny the use of radiographic studies to patients and deny reimbursement for such studies to chiropractors; and,

Whereas, in 2015, the NCC Board of Directors, while stipulating that no guideline can replace the clinical decisions made by a chiropractor in the course of treating an individual patient, passed a Resolution promoting and supporting the evidence-based science for appropriate radiologic evaluations of patients seeking chiropractic care developed by the Practicing Chiropractor's Committee on Radiology Protocols (PCCRP); and,

Whereas, the NCC Board of Directors has not been made aware of any subsequent evidence-based radiological guidelines or protocols that would supersede or render obsolete the PCCRP's Guidelines, including the Choosing Wisely® document from the ABIM Foundation;

Now, therefore, be it resolved by the NCC Board of Directors, that we re-affirm our Resolution to promote and support the PCCRP's Guidelines.

Now, therefore, be it further resolved by the NCC Board of Directors, that all Nevada doctors of chiropractic who utilize radiologic evaluations in their practice, familiarize themselves with the PCCRP x-ray Guidelines, which can be accessed online at www.pccrp.org.

Approved by formal NCC Board of Directors vote on October 11, 2017.