Unlicensed Graduate Employees, License Applications, and Supervision
Protecting Your License: Graduate Employees, License Applications and Supervision
Hiring a newly graduated doctor of chiropractic or a chiropractic physician licensed in another state to work in your clinic before he or she receives an Illinois license is an admirable thing, and in the long run, can be quite beneficial to your clinic. However, what duties the unlicensed graduate performs at the clinic, and the status of the graduate conveyed to your patients are matters which should be closely defined and monitored. What may seem a benign relationship can, if not handled properly, result in the IDFPR’s refusal to give the graduate a license, and indeed, bring disciplinary action against your own license. In fact, these fearful happenings sometimes occur even when the clinic is following proper protocol, and they spring from the information written by the graduate in the licensure application.
A part of each application for original licensure is “Support Document WH”, which calls for a detailed work history since the date of graduation from chiropractic school. Each business is listed, the job title is to be entered, and for each job, there is a large, open box to entire “Description of Duties Performed.” It is here that heartbreaks occur.
Unlike a resume of a customary job application section on work history, where we all want to make our prior employment look important, this one is designed to cut the opposite way: IDFPR is checking to see if the postgraduate employment is indeed too important. That is, do the role and duties of the graduate bear the earmarks of a fully licensed physician? If the license processing division thinks it might, the application is immediately forwarded to disciplinary division attorneys for review. Sometimes they conclude on unlicensed activity is reported, and send the file back to licensure to complete the application process. If, however, IDFPR enforcement staff think infractions have occurred, they will call the applicant in for a disciplinary conference, and that can ultimately lead to disciplinary action against the applicant and, in some cases, the supervising physician.
It is therefore imperative that you assist your graduate doctor in filling out the licensure application in order to ensure that the work history statement accurately reflects his or her duties. This is no time for ego trip embellishments, and you are probably better versed than your employee in explaining the employment relationship and the supervisory steps that are being followed.
Overstatement is only one potential problem. All of this also assumes, of course, that you have properly controlled the work functions of the graduate employee. Although proper supervision is the lynchpin of all employee activities, with unlicensed chiropractic graduates there is the threshold issue of whether you overstepped boundaries in assigning work activities or whether you adequately supervised the yet unlicensed graduate. The question, therefore, centers on what constitutes a proper delegation to, and supervision of, the unlicensed doctor. The answers are not always clear, so we will opt for conservatism in looking at the matter.
Section 54.2 of the Medical Practice Act permits physicians, in an office setting, to delegate certain patient care tasks to qualified unlicensed persons as long as a licensed health care professional is on site to provide assistance. However, the Medical Practice Act does not define “assistance,” nor does it specifically mention inadequate employee supervision in its list of forbidden acts and omissions. It is in the Department’s administrative rules that the subject is mentioned, under the heading “Standards” in Section 1285.240.
“Dishonorable, unethical, or unprofessional conduct”
Administrative rules are laws which, although not directly enacted by the legislature, spring from an enabling statute, in this instance the Medical Practice Act. One of their purposes is to clarify, or “flesh out,” the statute and the rule dealing with physician employee supervision is meant to clarify the phrase “dishonorable, unethical, or unprofessional conduct” found in Section 22 of the Medical Practice Act. What the rule essentially says is that such conduct includes failing to “properly supervise” subordinate staff and delegation patient care to someone not competent. The rule does not tell us what proper supervision consists of, nor how competency is measured, leaving such matters to the common sense dictates of each case (or to the jury verdicts in malpractice actions).
With most employees, however, once you are satisfied with their training and competency, “proper supervision” does not mean you need to actually watch them perform their duties. That would negate the reason for having employees in the first place. The physician, while remaining on site but not “over the shoulder” of the assistant, determines the protocol for each patient and may delegate appropriate duties. It is the general consensus of the major physician associations, the Illinois Department of Financial and Professional Regulation and other experts that duties physicians cannot delegate to assistants include: rendering a diagnosis, prescribing drugs, manipulating osseous tissues, and performing surgery. This prohibition is not written in a hard and fast rule; rather it stems from widely accepted standards of care regarding these procedures.
In the office setting, the graduate or unlicensed doctor, albeit highly qualified, is an unlicensed assistant. The unlicensed graduate presents a unique problem in the eyes of IDFPR, however, because of its fear that patients may be led to believe they are being seen by a fully licensed chiropractic physician, when in fact they are not. This has led all sorts of gymnastics. For instance, IDFPR prosecutors have, in the past, insisted that the graduates not be addressed as “doctor” in front of a patient, nor wear a nameplate with “Doctor” or “D.C.” on it.
But, you say a diploma holder actually is a doctor, because that is what the degree was all about. Perhaps not in the eyes of the State of Illinois, at least as it pertains to serving the health care consumer. Until the Illinois license is issued, diagnosing or improperly treating a human ailment, or even holding oneself out as available to treat, is unlawful. Section 49 of the Act says as much, but to flatly say it prohibits calling a graduate “Doctor” is debatable. It probably depends on the context in which it occurs. Consider, for example, the use of business cards with the graduate’s name followed by “D.C.” The IDFPR would consider any misleading use of the cards to be a violation, and most uses would probably be deemed misleading. Neither employers nor unlicensed graduates should distribute the graduate’s cards as an advertising tool, because they attract business based on the false appearance that the graduate is ready to practice.
Examinations, Diagnosis, and Manipulation
What about conducting examinations, rendering a diagnosis and manipulating patients? Be careful here. Supervision is key when delegating any task to an assistant, but in no event does the ICS recommend allowing the unlicensed graduate to perform an examination, diagnosis or manipulation. Regulators view this activity as unlicensed practice by the assistant and aiding and abetting unlicensed practice by the chiropractic physician. In addition to the licensing issue, the IDFPR historically has considered it fraudulent for a physician to bill for a spinal manipulation that the physician did not personally perform, and that a patient or an insurance carrier should not be expected to pay for one performed by an unlicensed individual. Whether a court would uphold that theory is not as important to our analysis as the fact that your licensing agency has expressed its view. Take heed.
Note also that Illinois law requires a license for the taking of x-rays. Regardless of the graduate’s training and qualifications, he or she may not take x-rays prior to chiropractic licensure, unless the graduate possesses a separate radiation technologist license from the State of Illinois.
You want the new grad to be economically productive to your clinic, but perhaps haste should yield to long term gains. Hold back on diagnosis, manipulation, and ordering of modalities. As difficult as it may be to wait for your employee’s license to be issued, it is not worth the potential for discipline of either your license or that or your new graduate.