THE WORLD OF East Asian Medicine & Massage

1. THE WORLD OF East Asian Medicine & Massage Peick Law Group, P.S.

2. ROGUE AGENCY ACTIONS The Washington Board of Naturopathy concluded in November 2012 that “dry needling” was within their scope. This Board action was completely under the radar, and completely illegal. On May 15, 2014 the Board did it again, by declaring “dry needling” within their scope despite no compliance with rule making or sunrise review procedures.

3. ROGUE AGENCY II Meanwhile, the PT Board, faced with complaints about PTs advertising and doing dry needling, started attempts to amend their scope of practice administratively, but were brought up short by protests by WEAMA. The PT Board is expected to attempt including “dry needling” at their June 21st meeting.

4. ROGUE AGENCY III What is truly alarming is both the Board of Naturopathy and Board of Physical Therapy are silent with respect to the level training and competency, their professional members have to demonstrate before actually performing dry needling. They are apparently protecting members with only 27 hours of KinetaCore training. Complaints have been declined as “below threshold” which means no corrective action is being taken.

5. THE WEAMA PREDICAMENT South Sound Acupuncture Association has started a lawsuit against Kinectacore and individual PTs. So far they have been relatively successful. They may be able to secure a summary judgment in the profession’s favor within a matter of weeks. So should WEAMA start its own litigation aimed at the rogue agencies or sit back and wait for SSAA. The better choice is to give SSAA some room to win the summary judgment, and failing that goal, WEAMA can take additional action, if any.

6. TRAPS FOR THE UNWARY Despite our best efforts to educate the profession, there remain traps for the unwary professional.

7. BUSINESS STRUCTURES Peick Law Group, P.S.

8. EMPLOYMENT • Employee vs. Independent Contractor (IC) • Issue revolves around Employer Control • Misclassifying status can lead to tax penalties • Compensation options are more limited for IC • Non-compete & Non-solicitation clauses may be less effective with IC Peick Law Group, P.S.

9. NON-COMPETITION For professionals, non-competition clauses are enforceable although not favored because they serve as a “restraint on trade.” Non-compete clauses will be enforced to the extent they are reasonable in geographic scope & duration. Do not confuse with “non-solicitation” clauses. Peick Law Group, P.S.

10. NON-SOLICITATION • A properly drafted non-solicitation clause restricts a departing provider from soliciting your patients and your employees. • Make sure the non-solicitation clause forbids providing services to your patients as well as not soliciting. • There are no territorial or time limits on non-solicitation clauses

11. HIPAA COMPLIANCE • Encrypt your computers & email containing PHI • Conduct a HIPAA risk assessment review • Create training for staff on HIPAA • Review data safeguards for your PHI • Create and distribute your Notice of Privacy Practices • Have you made provisions for reporting any breach of HIPAA?

12. PROFESSIONAL DISCIPLINE Triggered by complaint to DOH. If not declined as below threshold, assigned to Investigative Services. Investigative Services will report back to DOH management. Management makes recommendation to Department, and decides what action needs to be taken. Absent declination or NOC, Provider either allowed to “plead” to a STID, or agreed order; or SOC is filed. Peick Law Group, P.S.

13. Sexual Misconduct A healthcare provider shall not engage, or attempt to engage, in sexual misconduct with a current patient, client, or key party, inside or outside the health care setting. Peick Law Group, P.S.

14. Definitions • Twenty one separate offenses which constitute sexual misconduct (WAC 246-16-100(1) • Suggesting or discussing the possibility of a dating, sexual or romantic relationship after the professional relationship ends. • Terminating a professional relationship for the purpose of pursuing a relationship. • Any behavior, gestures, or expressions that may reasonably be interpreted a seductive or sexual. Peick Law Group, P.S.

15. SEXUAL ABUSE Expanded definitions of sexual abuse. Rules went into effect 9/30/06. Environment in Olympia more heightened for sexually charged complaints. Peick Law Group, P.S.

16. TIME PERIOD AFTER TERMINATION The healthcare provider shall not engage, or attempt to engage, in the activities listed in (1) of this section with a former patient, client or key party within two years after the provider-patient/client relationship ends. Peick Law Group, P.S.

17. POST TWO YEARS? • After the two year period, a health care provider shall not engage in the (1) activities, IF • There is a significant likelihood that the patient, client or key party will seek or require additional services from the provider. • There is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship. Peick Law Group, P.S.

18. OTHER FACTORS Even after the 2 years have elapsed, you may not be able to form a romantic relationship depending on nine other factors which the Secretary of the Department of Health may evaluate in the event of a complaint. WAC 246-16-100(5) Peick Law Group, P.S.

19. SEXUAL ABUSE – KEY PARTY 'Key party' means immediate family members and others who would be reasonably expected to play a significant role in the health care decisions of the patient or client and includes, but is not limited to, the spouse, domestic partner, sibling, parent, child, guardian and person authorized to make health care decisions of the patient or client. Peick Law Group, P.S.

20. SEXUAL ABUSE – LEGITIMATE PURPOSE 'Legitimate health care purpose' means activities for examination, diagnosis, treatment, and personal care of patients or clients, including palliative care, as consistent with community standards of practice for the profession. The activity must be within the scope of practice of the health care provider. Peick Law Group, P.S.

21. LAST BUT NOT LEAST Patient, client, or key party initiation or consent does not excuse or negate the healthcare provider’s responsibility under the rule. WAC 246-16-100(6) Peick Law Group, P.S.

22. MANDATORY REPORTING There has always been some reporting requirements, particularly courts and insurance companies. In May 2008, the reporting requirements were broadened to require licensees to report on other licensees and to self report their own defined acts or omissions. Peick Law Group, P.S.

23. CODING & BILLING ERRORS Discount Plans/Sliding Scale Kickbacks & Rebates Inadequate Documentation Using another person’s NPI Failure to Sign Chartnotes Errors in Use of E/M Codes Peick Law Group, P.S.

24. QUESTIONS? John C. Peick Peick|Boyer Law Group, P.S. 3633 136th Pl. SE #205 Bellevue, Washington 98006 425-462-0660 Visit www.peicklaw.com Peick | Boyer Law Group, P.S.

25. Digitial/Electronic SIgnatures Legal requirement for a signature is met by means of an electronic signature if the signature: 1. Adequately identifies the signatory; 2. Adequately indicates the signatory's approval of the information to which the signature relates; and (Intent) 3. Is as reliable as is appropriate given the circumstances. An electronic signature is sufficiently reliable if: A. the means of creating the signature is linked to the person signing and no-one else, and B. the means of creating the signature was under the control of the person signing and no-one else, and C. any changes to the signature are detectable, and D. any changes to the documents are detectable (data integrity ).

26. Sample Signature

27. Rewarding Referrals • Rewarding referrals with anything more than social gratitude or incidental non-monetary show of gratitude is fraught with danger • Hospitals are constantly evaluating their training programs for doctors that refer patients and carefully review state and federal rules on kickbacks • Small clinic practitioners should be equally circumspect because it is all a matter of scale

28. Employee & Employer The ability to be employed by some other professional or for you to hire another professional is governed entirely by scope of practice. If your scope completely covers by the other professional’s scope, then you can be an employer. If the employer’s scope covers your scope entirely, then you can be an employee. Otherwise, no.

29. Discounts • For EAMPs, there is neither a regulatory prohibition or authorization to offer any discounts off your normal fee schedule. • However, most insurance carrier contracts expect your fees charged to them to be your normal and/or best rates, so you may be violating your insurance contract by not offering the same discounts when billing them. Sliding scales only exacerbate this problem.