11/02/2022

A Closer Look at… Chiropractors Certifying Disability

Disability Parking Credentials, FMLA, Temporary Work Notes, Social Security… When Can a DC Certify Disability?

The MAC often gets calls asking when a chiropractor can certify disability under Michigan law and/or under such programs as the Family and Medical Leave Act (FMLA) or Social Security. In this article, we will look at the circumstances in which a chiropractor can certify disability.

Michigan Disability Placard or Permanent License Plate

Under Michigan law, residents who are legally blind or have a condition that significantly limits their ability to walk, or requires an assistive device such as a wheelchair, walker, crutch, etc., are eligible for a disability parking placard or license plate. There are several types of disability parking credentials, but the most common ones are:

• Temporary disability parking placard (Red): Issued if a qualifying disability is expected to improve
• Permanent disability parking placard (Blue): Issued if a qualifying disability is not expected to improve
• Disability license plate: Issued if a qualifying disability is not expected to improve

Michigan residents wishing to apply for any disability parking credential must provide a completed application with the certification and signature of one of the following licensed medical professionals:

• Chiropractor
• Physician
• Optometrist
• Physician’s Assistant
• Nurse Practitioner

For more information, including applications, the differences between the types of disabled parking credentials, eligibility, and frequently asked questions, click here.

Family and Medical Leave Act (FMLA)

The FMLA and Chiropractors in a Nutshell

• The absence is not covered unless the chiropractic treatment is for manual manipulation of the spine to correct a subluxation that’s been demonstrated by x-ray
• The x-ray MUST be taken BEFORE chiropractic treatment, or the chiropractor is not acting as a health care provider when he or she excuses the employee from work

The Family and Medical Leave Act ("FMLA") provides certain employees with up to 12 work weeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. The FMLA became effective August 5, 1993, for most employers and employees. It is not uncommon for chiropractors to be called upon by a patient to certify leave under FMLA.

Basic Leave Entitlement: FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:

• For a serious health condition that makes the employee unable to perform the employee’s job
• For incapacity due to pregnancy, prenatal medical care or child birth
• To care for the employee’s child after birth, or placement for adoption or foster care
• To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition

Benefits and Protections: During FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan” on the same terms as if the employee had continued to work. Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms. Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.

Eligibility Requirements: Employees are eligible if they have worked for a covered employer for at least one year, for 1,250 hours over the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles.

Definition of Serious Health Condition: A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job or prevents the qualified family member from participating in school or other daily activities.

Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than three consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may also meet the definition of continuing treatment.

Use of Leave: An employee does not need to use this leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations. Leave due to qualifying exigencies may also be taken on an intermittent basis.

Medical Certification: An employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification.

An employer may, at its own expense, require the employee to obtain a second medical certification from a health care provider. The employer may choose the health care provider for the second opinion, except that in most cases the employer may not regularly contract with or otherwise regularly use the services of the health care provider. If the opinions of the employee's and the employer's designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer's expense. This third opinion shall be final and binding. The third health care provider must be approved jointly by the employer and the employee.

Health Care Provider: Health care providers who may provide certification of a serious health condition include:

• Chiropractors (under certain circumstances – see below) authorized to practice in the State and performing within the scope of their practice under State law
• MDs and DOs authorized to practice medicine or surgery by the state in which the doctor practices;
• A podiatrist, dentist, clinical psychologist, or optometrist authorized to practice in the state and performing within the scope of his or her practice;
• A nurse practitioner, nurse-midwife, clinical social worker, or physician assistant authorized to practice in the state and performing within the scope of his or her practice;
• A Christian Science practitioner listed with the First Church of Christ, Scientist, in Boston, Massachusetts; or
• Any health care provider from whom the employer or the employer’s group health plan’s benefits manager will accept a medical certification to substantiate a claim for benefits.

Chiropractors and the Family and Medical Leave Act

Chiropractors fall into a unique category of “health care provider” under FMLA, because their capacity to excuse an employee from work depends on the diagnosis itself and the presence of x-rays. FMLA regulations allow chiropractors to certify leave for care, but only in the following instances:

• Treatment must consist of manual manipulation of the spine to correct a subluxation; and,
• The subluxation must be demonstrable by x-ray

Certifications provided by DCs for any care beyond this limited coverage will not be accepted, since a chiropractor who isn’t engaging in treatment to manually manipulate the spine to correct a subluxation demonstrated by x-ray is not considered a health care provider under the Act.

The MAC recommends that all DCs become familiar with the FMLA Certification Form, which can be found online at: http://www.dol.gov/whd/forms/WH-380-E.pdf.

Courts that have looked at the FMLA regulations regarding chiropractic care have generally applied the terms of the regulations very strictly. In Olson v Ohio Edison Co., the treating chiropractor did not take an x-ray at the time the medical certification was completed. Therefore, the court determined that the chiropractor was not acting as a health care provider as defined by the FMLA, and the claim was dismissed.

Therefore, it is critical that x-rays be taken BEFORE any treatment begins.

Amending federal regulations like those in place for Medicare and FMLA, which limit the scope of practice of chiropractors, is a major focus of national lobbying efforts.

For more information, see the FMLA Employer Guide.

Sources:

ACA press release, “FMLA and doctors of chiropractic: What you need to know,” June 17, 2011

Work Notes

Under Michigan law, chiropractic physicians can certify disability for conditions they can legally treat under Michigan’s chiropractic scope of practice. If the employee/patient has been told by their employer, however, that they will not accept the certification or disability slip if it comes from a chiropractor, the MAC has created a letter our members can use to educate them. The letter stresses the following points:

• Chiropractic is a health care profession that focuses on disorders of the musculoskeletal system and the nervous system, and the effects of these disorders on general health.
• DCs are especially well known for their expertise in caring for patients with back pain, neck pain, and headaches with their highly skilled manipulations, or chiropractic adjustments.
• Chiropractors also care for patients with a wide range of injuries and disorders of the musculoskeletal system, involving the muscles, ligaments, and joints.
• Chiropractic physicians – the third largest physician group in Michigan and the United States – are fully licensed in all 50 states as portal-of-entry providers and routinely care for patients of all ages, with a variety of health conditions.
• Chiropractic physicians are licensed and regulated by the State Michigan and are defined as physicians under Michigan law.
• Chiropractors are one of the physician groups specifically named that certify disability for the purpose of obtaining a Disability Parking Placard or license plate, and are recognized in the Medicaid program and the Michigan Workers’ Compensation system.
• Federally, chiropractors are defined as physicians by the Federal Employee Health Benefit Program, Medicare, and the Federal Workers’ Compensation program.
• Chiropractic physicians are allowed to provide certification of a serious health condition under the Family and Medical Leave Act (FMLA), where a “serious health condition” is an illness, injury, impairment, or physical condition that involves continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.

To access this educational letter, click here.

Social Security

When it comes to Social Security Disability (SSD) claims, unfortunately, the Social Security Administration will only consider medical evidence from an “acceptable medical source (AMS),” which under federal statute does not include chiropractors. For the full list of what is considered an “acceptable medical source” in Social Security, see here.

While evidence from a chiropractor cannot be used to establish disability, once the existence of a medically determinable impairment (MDI) based on objective medical evidence from an acceptable medical source has been established, SSA uses all evidence from all sources for all other findings in the sequential evaluation process, including showing the severity of a claimant’s MDI. These sources can include a medical source not considered to be an AMS, such as a chiropractor, naturopath, therapist, etc.

However, it is often the case that the SSA examiner or administrative law judge may not bother to obtain a chiropractor’s treatment notes, but if they are provided to the examiner by the claimant or the claimant’s attorney (if they have one), SSA will usually review the records to help them determine the severity of the condition and/or the effect it has on the claimant. They will also usually review imaging results such as x-rays from a chiropractor.

So, if your patient is applying for Social Security Disability benefits, be sure to let them know that their records are available should they wish to provide them to an SSA examiner or administrative law judge.

Be Advised: If a chiropractor is the patient’s primary source of treatment, the disability examiner or administrative law judge may request that the patient attend a consultative examination (CE), sometimes referred to as “Social Security medical examinations,” in which SSA hires an independent medical doctor or nurse practitioner to conduct an exam and provide an acceptable medical opinion for the claim.