On today’s podcast, Collins & Lacy Professional Liability Practice Group Chairperson, Robert Peele, discusses law, ethics, and professional conduct with Dr. Beth Ehlich, Chair of the South Carolina Board Of Chiropractic Examiners.
Michael Burney: Welcome to The Legal Bench. I’m Michael Burney, Director of Business Development at Collins and Lacy defense law firm in Columbia, South Carolina. With me today is attorney Robert Peele, chair of our professional liability practice group, and Rob has a special guest today to help us understand the legal and ethical considerations for practicing chiropractors in South Carolina.
Robert Peele: Thanks Mike. We are pleased to have with us today Dr. Beth Ehlich. Dr. Ehlich is a 1990 graduate of the Sherman College of Chiropractic and has been practicing for 31 years in Greer alongside her husband, Dr. Chris Ehlich. She is a current member, 12 years total, and 2nd year chair of the South Carolina Board of Chiropractic examiners, and she is an assistant professor at Sherman College in regulations, ethics, and compliance. As a professional liability attorney, I am very interested in the field of law and ethics. Dr. Ehlich, please share with us your road to becoming the chair of the Board of Chiropractic Examiners.
Dr. Beth Ehlich: I originally started my regulatory experience with the South Carolina Board of Examiners a little over 16 years ago. Since then, I’ve been involved in regulation in a lot of different ways. I spent a large amount of time learning how regulatory boards operate, not only from what we do in this state but looking at national roles as well. Also looking at how our Board can better serve the public through the regulations and making sure that chiropractors are doing what they need to do. Regulatory boards really serve a very important role in protecting the public and that really is our priority. In addition, our Board seeks to work out what is the appropriate licensure and continuing education as well as prelicensure items for chiropractors. And when we have to, we have to provide discipline at times to chiropractors that may have been found to have violated our regulations. My experience on our Board studying and chairing a lot of committees and my time just working with this Board over 12 years has given me the experience to become the chair of this Board, so I’m very proud to be able to serve in this capacity. You mentioned also that I’m a professor at Sherman College and ethics is an area that is of significant interest to me, because this is an area I teach to senior students so not only is it important for chiropractors that are practicing to continuously to be reminded how important ethics is but is also important to teach senior students that ethics really is a pilar on which the trust that the doctor/patient relationship is built and having that opportunity to teach the senior students is really something that I find very important in helping them get established. I also think it is important that not only students, but the public and chiropractors know the distinction between trade associations and those organizations that exist to represent the interest of the members and help them in their practice, but the difference is that regulatory boards really exist to ensure that there is public protection, and so this is something I strive to teach not only to students but to remind chiropractors as well. I think these are really important roles and both organizations exist to perform important roles and I think it’s important for people to understand the distinction there.
RP: Well thank you. We’ve had the opportunity to communicate with you in preparation for today’s podcast and you shared with us many key areas which to encourage chiropractors to be mindful. May we run through these and get your comments?
BE: Yes, of course.
RP: OK, the first on our list is advertising. What are the legal and ethical considerations when chiropractors advertise and what can lead to issues when running advertising?
BE: The advertising is an area that we’re finding, we’re getting more complaints on and this is something more and more people need to be aware of, chiropractors, because sometimes chiropractors are using third-party ad developers and marketing strategists to develop as an ad marketing for them. And it’s very common that these may be out of state and they may not be aware of the regulations surrounding ad development and ad distribution in our state, so it’s important that chiropractors, even though they may hire these third-party strategists and developers to help with their marketing and ad development, that they review the ad ahead of them being made public and make sure that the ads that are produced do meet the regulations for our state and don’t violate. It’s also important that chiropractors be aware that their advertising needs to be truthful and that it doesn’t mislead the public or make guarantees that they may not be able to provide and chiropractors also should be aware that they’re not to hold themselves out as specialists or to have credentials that they haven’t yet earned, or that they’re not appropriate to use. So we want chiropractors to make sure that they are very familiar with the regulations around advertising in our state and that any ad that they publish in whatever medium that they use, that they make sure that it has, have their eyes on it and not just allow a third-party developer to just publish something without the chiropractor first being aware of it.
RP: So specifically, what do the regulations state as to what should chiropractors have in their advertising and what should they not have? I know you just mentioned you have to be truthful; you cannot hold yourself out in a specialized field if you do not have the appropriate credentials. What else do the regulations speak about?
BE: Well, I think one of the other things is that chiropractors should avoid making misleading comments or referencing research that may not be appropriate. You know we’ve had some concern in this time of a pandemic that some people may have gotten very aggressive with some of their ad campaigns and this wasn’t just in our state but it’s really something that we saw nationwide and some people began to bring in some components of guaranteeing or misleading the public about chiropractor care and what it could deliver and they didn’t really have the appropriate language in there and then sometimes people would put stuff out in their ad that when they do reference research they just want it to be truthful and not mislead the public and make them think something could be the result when the research is not showing that. Sometimes we get complaints where maybe a chiropractor has compared themselves to someone else or maybe they’re advertising a service that may not be within their scope, so they just want to make sure that they review any ad that they’re putting out, not misleading that a different service might be offered that’s not within their scope.
RP: Well that’s a great answer and thank you for explaining that to me. What is the licensure requirement in South Carolina, and do you know of specific times when non-chiropractors have been practicing chiropractic care?
BE: Right, well fortunately, this is a rare occurrence. It does not happen very often. But in order to obtain a license in South Carolina to practice chiropractic the chiropractor must have met very specific undergraduate requirements and they need to have graduated from an accredited chiropractic college. In addition to meeting those requirements chiropractors have a very rigorous licensing process that is consisting of passing standardized national board exams, which actually has four different parts. In addition, there is a PT exam for people that are what we call a physiotherapy exam for people that want to have additional modalities available in their office and they must pass an ethics and juris prudence exam that’s given by our Board. So, the public can really be assured that any licensed chiropractor in South Carolina has undergone a very rigorous and thorough education and licensing process. In addition, licensed chiropractors have to meet continuing education requirements every year, excuse me, every two years, that’s our renewal process. They’re required to get 36 hours every two years in chiropractic continuing education and 2 hours of that has to be in rules and regulations where we review any rules and regulations updates and what this means to being in practice as well as 2 hours in risk management, so the chiropractor has undergone a very rigorous education licensing and even a prelicensure process. Unlicensed practice might happen and it’s very rare, but sometimes a practitioners may not renew their license so they may go into a time where their license has lapsed and so that would constitute unlicensed practice and so normally they are notified right away of their failure to renew and they will go ahead and take care of that pretty quickly so technically there is a time where they could be an unlicensed practice, because they failed to renew. Occasionally, there could be a complaint where someone who is not a chiropractor is trying to manipulate or performing adjustments and if this happens, and it’s rare, the Board takes these complaints very seriously and we respond quickly with an investigation, and if it’s found to be happening, they will receive a cease and desist order and then it would move on to another process for further prosecution if that was needed.
RP: Because I know in any medical practice their medical records are maintained, physicians, chiropractors, anybody owning a practice, may have to make available and produce medical records as needed. What are the issues with records at a chiropractic practice?
BE: Well, fortunately, you know, most everyone has moved into more of electronic formats so being able to house and keep and produce the records is a lot easier than in days when everything was paper or records were housed offsite or in secured placed, but the records really are considered a very important tool and it’s actually a very important ethical consideration, because a patient deserves to have proper records for their care and it’s important that the chiropractor keep and maintain adequate records. Every state requires a certain amount of time for their records to be kept so they can be produced should they need to be, and South Carolina is no different. We have a ten-year requirement for adult records and thirteen-year requirement for records of minors. So, a chiropractor has to produce those records should the patient or the appropriate entity requests those. Occasionally we have had situations where a chiropractor has been disciplined for not being able to produce their records or failure to maintain adequate records. So, it’s much easier to produce those now with the electronic means rather than having to house the paper files and going to search those and produce those. It used to take a lot of time if those were archived somewhere, so it doesn’t take nearly as much of an effort to produce those now.
RP: I understand with you serving on the Board you may get a complaint from a citizen of South Carolina alleging unprofessional conduct. Well, you and I both know that unprofessional conduct is a pretty broad term. Could you help us narrow down and help us understand the ethical rules of chiropractic care and what is maybe deemed as unprofessional conduct.
BE: You are absolutely right. It is a very broad topic and a lot of things could end up falling under that unprofessional conduct umbrella. What we really want people to understand, the chiropractors especially, to understand their scope of practice. I believe that is one of the big areas that you could find either unprofessional conduct or unethical behavior is making sure that they understand their scope of practice, which is defined by our statute and our regs, and it tells the chiropractor what they can do within those boundaries. The chiropractor is conducting their business and their transactions and their care for patients maintaining an understanding of that scope and operating within that I believe is one of the very very important ethical considerations. If someone begins to go outside their scope, I believe that’s where the unprofessional conduct really begins to be evident and it could potentially bring harm to an individual or they could practice in some sort of negligent way. We think understanding the scope of practice is I do, it’s one of the very first things that chiropractors need to do. The other area that we consider or that I personally consider important, is making sure that chiropractors maintain their skills and competency and that they are practicing in a safe manner. Occasionally we find that a chiropractor has their skills impaired, maybe it’s due to a mental or a physical condition, or it could be due to an addiction to a substance. And so, in those areas if we find that someone’s skills or competency is impaired or is someway not up to par, that again would be considered very unprofessional and would be very concerned about that. We do take steps to try to help people recover those areas where they may have a loss and help guide them to things they need to do to rehab and get back on par. Other areas would be like fraudulent billing or improper billing practices, sexual misconduct, all of those would be considered unprofessional, or really any departure from what we would consider the standard or what is within our regs would possibly consider unprofessional.
RP: How does the Board measure what the standard of care is for a chiropractor?
BE: The Board looks at the standards that are taught in the accredited chiropractic colleges and what is examined by the national boards and what is stated in our statutes and regs. We consider the chiropractic colleges and national boards really a very high standard, a very vigorous process, and so we use that as one of our standards in terms of looking at a substandard claim or something that might have fallen below what we would consider acceptable practice. We want people to understand when the public enters a chiropractor’s office as well as the chiropractor in terms of how to conduct things that it’s important that when a patient enters a chiropractor’s office that the chiropractor begin with a very thorough evaluation of the chief complaint and chiropractors look at the case history including the history of the complaint, any relevant past or current history including any presence or absence or history of trauma that might be related to the complaint, or in someway relevant. Chiropractors will also incorporate or use examinations and x-rays or other lab tests if needed and where appropriate to properly assess a case. These are all things we consider standards and certainly within each of those items there are standards within those examination x-ray processes, and these have really helped chiropractors know how to rule out pathologies or occult presentation as well as how to properly care for the individuals. These are really important tools that help the chiropractors deliver what we consider a high standard of care to our patients, and then we’re looking at if there is any deviation of that, whether it’s from the initial standpoint or even the follow-up care, we’re looking for any deviation from that that may fall below the standard of care. If that’s the case, there are appropriate discipline measures that we may incorporate if we feel those are necessary and appropriate in that particular case.
RP: I understand that chiropractors have a mix of self-pay where the patient pays the full amount and then insurance pay where some insurance covers visits and treatment. When a case is brought against a chiropractor for insurance or billing fraud, what does that entail?
BE: Fraudulent billing complaints many times are reported from third parties where that third party such as an insurance company has determined that there has been fraudulent billing on the part of a chiropractor so those third parties may report that to us and, if that’s the case again like any case that comes in, it’s investigated and then moves through our process and discipline would be administered if that’s appropriate. Sometimes patients make a complaint just because they are not happy with the bill or they may not be happy with the outcome and they thought they were wrongly charged. So, sometimes a patient will make a complaint based upon their experience or their either lack of results or not happy with a result. And, again, we would investigate any complaint that comes in and if there’s simply an error, and sometimes there’s errors in billing and if the chiropractor makes efforts to correct those then certainly, we look at that. When you look at fraudulent billing, you have to look at patterns of willful intent or patterns of neglect or patterns of this ongoing fraudulent behavior and if that’s the case then we would discipline those, but if it’s just something that’s a misunderstanding or if it’s something that really doesn’t rise to the level of a violation, then we notify the respondent and the complainant about then hopefully they can work that out, but if it doesn’t rise to a level of violation we’re not going to discipline on that measure. Sometimes patients are just basically not happy with their bill and might make a complaint, but it doesn’t rise to a level of violation.
RP: Alright Dr. Ehlich, you have shared with us that sexual misconduct, which is regulated in so many industries, is also monitored by the Chiropractic Board of Examiners. Where can a chiropractor fall in trouble with sexual misconduct?
BE: Well sexual misconduct claims do happen. This is an area that we want chiropractors to really be aware of ethical and professional boundaries. I teach this in my class so that senior students really understand the seriousness of these complaints and the potential that a chiropractor could have in these areas. So I think it’s a good idea that chiropractors explain to a patient what they can expect during an exam or a procedure so that the patient has a complete understanding or a complete expectation of what is going to happen and get their consent to continue with that procedure or service so that they can say yes I’m okay with following through with that. Chiropractors can also reduce their risk of sexual misconduct claims by having either a chaperone or a witness present. Most chiropractors have assistants in the office and it’s certainly advisable to have an assistant in a room where you are treating someone or examining them or providing some other procedure for them so we think that making those measures of fully explaining things, let the patient understand the expectations and having a witness or an assistant can help reduce those social misconduct claims. We want people to understand that if these claims do come in, we take these very seriously and we do a thorough investigation into these claims. I think one of the things we’ve done is really educate our chiropractors really well on how to avoid these situations and I think for the most part chiropractors are doing a good job in these areas. We want everyone to understand that in this current climate that we really need to have a greater awareness of actions, words, and verbal and non-verbal communications so that patients aren’t made to feel uncomfortable or chiropractors don’t cross an ethical boundary.
One other area that we see is that sometimes a chiropractor and a patient are seeking to pursue a personal relationship outside the professional workplace. When that happens it is in our regulations that the chiropractor needs to refer the patient out and no longer render professional services and also enter into a 90-day cooling off period which allows them to have some distance between them before pursuing the personal relationship. Sometimes the failure to do this within that 90-day period does result in sexual misconduct claims and does result in discipline. So those are the things that we feel chiropractors, if they have a greater understanding of, that they can reduce their risk of sexual misconduct.
RP: Well, Dr. Ehlich, that’s very interesting and you’ve done a wonderful job educating us to the legal and ethical considerations for chiropractic industry. We’ve talked about a lot of issues in chiropractic care and issues and things that could go astray. Talk to us a moment as we’re closing here, what’s the level of quality and ethical care you see at practices around our state?
BE: Well, I am very proud of the work that has been accomplished by our Board of Examiners. As I stated earlier, our primary purpose as a regulatory board is to ensure public protection and I believe that we have a great state in which to practice. I believe it’s favorable for chiropractors to come into our state, and I believe that chiropractors are very well prepared not only from an academic and licensing standpoint, but I believe our Board has done a very good job at communicating to our licensees through our every two year rules and regs programs and other measures to have chiropractors understand what is expected of them in this state ethically and in all considerations of their practice. When we do have violations happen or we do have complaints come in that need our attention, the Board wants chiropractors to see where they can get additional training if that’s needed. Sometimes we require additional continuing education in certain area because we want them to understand how to enhance their skills and serve the needs of the citizens in our state. We have looked at some of the categories that represent some of the recent past complaints, and like we said earlier, ethics is such a broad topic. I really think it’s fair to say that our regulations reference ethics and any departure from that could be considered unethical or unprofessional behavior. But I believe that for the most part, chiropractors in South Carolina are aware of their ethical expectations and their professional responsibilities and do provide excellent chiropractic care to the citizens of our state. We feel that chiropractors are very well prepared for practice here after completing a rigorous academic programs and going through a lot of very rigorous national standardized testing for licensure and we feel like our re-licensure is very important as well and that people do a very good job of meeting those 36 hours renewing every two years and looking at risk management as well as rules and regs within those 36 hours. We take all the complaints very seriously and apply discipline when it’s appropriate. But we also stress that continuing education helps educate the chiropractor on practice trends and having them review the rules and regs on statues and ethics we believe helps chiropractors reduce their risk and avoid some of those complaints. If you look at our statistics, just recently I looked at our numbers and we have just over 1600 licensed chiropractors in South Carolina and we have very low numbers of complaints. So I think that really speaks volumes that chiropractors in South Carolina are ethical and qualified professionals and if we do find complaints that need to be addressed that we do so in a manner that helps discipline and also helps the person learn how to avoid that in the future.
MB: We want to thank Dr. Beth Ehlich for your time to speak with us today and also Collins and Lacy professional liability attorney Rob Peele for your questions. And for the latest news of interest to South Carolina businesses join us right here for the next episode of The Legal Bench.