6 I Winter 2018 www.anjc.info www.njchiropractors.com I 7 Insurance Update MEDICARE Q&A Legislative Update Chiro TE Headquarters UPDATE Legal Q&A S C H O L ARSHIP WI N N E R S e Q&A Legislative Update Legal Ease Chiro Assist TECHNIQUE Council REHABILITATION Council p PDATE Legal Q&A S C H O L ARSHIP WI N N E R S Q If I have a New Jersey no-fault (“PIP”) patient who chose health insurance primary on their auto policy and have health insurance with no out-of-network benefits, and I do not participate with the health carrier, how do I bill the claim? A Health insurance primary continues to be a gray area in PIP, and arbitration decisions have gone in varying directions even when the facts are the same. With a health insurance primary policy, you must submit the bills to the health insurance carrier, even if there are no out-of-network benefits. They will issue EOBs denying the claims due to no out-of-network bene- fits that you can then send to the PIP carrier with your claims as the secondary carrier. With a health plan which offers no out-of-network benefits and the patient treated with an out-of-network provider, one of two things will occur: 1) PIP will accept the denials as “substan- tive” and process the bills, issuing payment in accordance with the NJ PIP Fee Schedule; or 2) PIP will assess an additional $750.00 deductible penalty for the patient’s failure to use an in-network provider and then process the bills and issue payments once the deductible is met. Q I have a patient who was injured when hit by a car while riding his bicycle. The patient has auto insurance as well as health insurance. Which insurance carrier do I bill as primary? A It has been established by various arbitration decisions and court cases that bicyclists who are injured by a motor vehicle have been deemed eligible to receive PIP benefits through their own PIP carriers in the State of New Jersey. Thus, if the patient has their own auto insurance with PIP coverage, their PIP would be the primary carrier to submit the bills to even though the accident did not occur in their own car. If the patient was not covered under PIP policy, the claims could be submitted to NJ PLIGA which is a state insurance fund of last resort provided timely notification and submission of the claim is made. Q An attorney for one of my auto accident patients asked me to sign a Certification of Perma- nency for their auto accident case. The patient suffered a sprain/strain with minimal bulging in the cervical spine on MRI and a negative EMG/ NCV. Should I sign the certification? A In New Jersey, chiropractic physicians are qualified to sign a Certification of Permanency according to the Automobile Insurance Cost Reduction Act (“AICRA”). However, to do so, the physician must certify, under oath, that “within a reasonable degree of medical (chiropractic) probability,” the patient has injured at least one “body part or organ” that will not heal to normal function even with further treatment. This AICRA certi- fication is required for the patient to pierce the verbal threshold if they have chosen such on their automo- bile insurance policy and recover for pain and suffering in a personal injury claim. Thus, you must make a clinical decision, as a treating physician, whether there is objective evidence that your patient suffered a permanent injury to a body part or organ that will not regain normal function with further treatment. There is no definitive answer and is left to your clinical judgment as a treating doctor. Jeffrey Randolph (the author of these 2 articles) is an independent person of the ANJC and his views are not authorized, sponsored, or otherwise approved by the ANJC. The information provided is for general guidance on matters of interest only and may not take into account particular facts relevant to your individual situation. The application and impact of laws and health care can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information con- tained in these materials. Accord- ingly, the information you receive is provided with the understanding that the author and the ANJC are not herein engaged in rendering legal, accounting, tax, health care or other professional advice and ser- vices nor are they providing specific advice with regard to your practice, the treatment of any specific illness, disease, deformity or condition, or any other matter that affects trade, commerce, or legal rights of others. As such, this article should not be used as a substitute for consultation with professional accounting, tax, legal, health care, or other compe- tent advisers. Before making any decision or taking any action, you should consult an appropriately trained professional. By Jeffrey Randolph, Esq. ANJC Legal Counsel By Jeffrey Randolph, Esq. ANJC Legal Counsel Office romance may happen routinely in movies and on televi- sion, but in real life in a chiropractic office this should never occur. Although there is nothing unlawful per se about an office romance or most relationships with former patients, legal liability may result. When it does, it may come in the form of discipline by your licensing board, malpractice claims, hostile work environment or sexual assault civil claims, and even criminal pros- ecution. This article will discuss in broad strokes the poten- tial legal liability resulting from sexual relationships with patients or employee and how to avoid liability. Disciplinary Actions – Patient Boundary Violations: N.J.A.C. 13:44E-2.3 is the regulation that governs sexual misconduct by chiropractors. Specifically, this regulation prohibits a chiropractor from engaging in sexual contact with a patient unless the doctor: i) terminates professional services with written notice to the patient via certified mail; and ii) three months have elapsed since the last profes- sional service rendered. The regula- tion further prohibits any discussion of an intimate sexual nature with a patient unless that discussion is related to legitimate patient needs. The regulation further: i) requires the doctor to provide privacy for the patient to prevent the expo- sure of the unclothed body unless necessary to perform chiropractic services; ii) prohibits sexual harass- ment in the doctor’s professional capacity; and iii) prohibits the doctor from engaging in any other activity that would lead a reasonable person to believe that the activity serves the doctor’s personal prurient inter- ests or is for the sexual arousal or sexual gratification of the doctor or patient. It is not a defense that the patient solicited or consented to the conduct or the doctor and patient were in love. To protect yourself from patient complaints, you should not treat a patient of the opposite sex in a closed treatment room without an assistant present. Preferably, the assistant should be the same gender as the patient. If you do not have an assistant, at a minimum the door to the treatment room should be left partially open when treating a patient of the opposite sex. You should also utilize “talking examinations and treatment.” In other words, verbalize to the patient what you are doing and why you are doing it and ask if they are ok with it. It is usually not necessary to have a patient disrobe. However, if it is required, provide a private area to do so and a standard gown that covers all private areas. Most boundary violation complaints could be avoided if you follow these simple procedures. Employment Actions–Sexual Relations with Employees: The Equal Employment Opportu- nity Commission (“EEOC”) defines sexual harassment as “unwelcome, gender-related harassment.” To be “unwelcome,” the employee has the burden of proving: i) he or she did not solicit or incite the doctor’s actions; and ii) the employee reason- ably viewed the doctor’s actions as offensive. Participation by the employee in sexual intercourse will not preclude a claim of sexual harassment; rather, the EEOC will inquire whether the employee, by his or her overall conduct, indicated the conduct was or was not welcome. Sexual harassment can take two forms. “Quid Pro Quo” harassment concerns situations where the doctor extorts sexual favors from an employee using the doctor’s authority to terminate employ- ment, promote, or determine salary. “Hostile Work Environment” harass- ment is the second form of sexual harassment under federal law. When a reasonable person would perceive the work environment to be offen- sive or hostile due to gender-related conduct, the doctor may be liable for a hostile work environment claim. Examples of hostile work environ- ment include: rude treatment of employees of one gender; use of sexual language, graphic jokes, or inappropriate comments on how the employee looks; pornographic pictures, videos, or other media in the office; requiring revealing uniforms; and repeated physical contact with the employee. Although each case is fact-specific, there is only one way to avoid liability for engaging in sexual relations with an employee: do not become involved in an office romance, period! Engaging in even consensual sex with an employee is legally risk- free only so long as both partners continue to be happy with both the sexual relationship and the working relationship. Given the litigious nature of today’s society, office romances should be completely avoided. Patient & Employee Boundary Violations