Chiropractor Disciplined for
Using Deceptive Contracts

Stephen Barrett, M.D.


In 2007, the Kansas State Board of Healing Arts charged Bradley Eck, D.C., of Wichita, Kansas, with unprofessional conduct. The complaint, shown below, states that he engaged in deceptive advertising and used improper contracts under which patients paid "discount" prices in advance for multiple visits but would receive no refund for visits that were not used. In February 2009, the case was settled with a consent order under which Eck must:


BEFORE THE BOARD OF HEALING ARTS
OF THE STATE OF KANSAS

In the Matter of

BRADLEY ECK, D.C.
Kansas License No. 01-04269

 


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KSBHA Docket No. 07 -HA00095

OAH No. 07 -HA0007

FILED AUG 24 200

FIRST AMENDED PETITION

COMES NOW the Kansas State Board of Healing Arts ("Board"), by and through Kelli J. Stevens, Litigation Counsel and Dan Riley, Associate Counsel and initiates these proceedings pursuant to the provisions of K.S.A. 65-2836, K.S.A. 65-2851 a, and K.S.A. 77-501 et seq. For its cause of action, Petitioner alleges and states:

1. Bradley Eck, D.C.'s ("Licensee") last known mailing address to the Board is 2118 N. Tyler Bldg A, Wichita, Kansas 67212.

2. Licensee is and has been entitled to practice chiropractic in the State of Kansas having initially been issued license number 01-04269 on approximately June 23, 1995. Licensee currently holds an active license to practice chiropractic.

3. Since issuance of license, and while engaged in the practice of chiropractic in the State of Kansas, pursuant to K.S.A. 6502801 et seq., Licensee did commit the following act(s):

COUNT I

4. Petitioner incorporates herein by reference paragraphs 1 through 3.

5. In or about March 2006, Licensee placed an advertisement in The Wichita Eagle newspaper captioned 'WHAT A RELIEFI New FDA Approved Treatment for Back and Neck Pain Gives Relief Without Surgery or Endless Treatment."

6. In that same advertisement, Licensee made a "Limited Time Offer" for a "Free Clinical Evaluation" to determine if the Accu-Spina Intravertebral Differential Dynamics ("IDD") Decompression Therapy could relieve the reader's back and neck pain.

7. On or about March 17, 2006, patient A, a sixty-nine (69) year old female, presented to Licensee's clinic in response to Licensee's advertisement.

8. Patient A's chief complaints were chronic pain and stiffness in her neck and back.

9. Licensee recommended a treatment plan that would cost $2,900 for the following treatments:

a. 20 IDD decompression Therapy Treatments;

b. 13 Core Strengthening Lumbar/Cervical; and

c. 13 Neuromuscular Re-education.

Patient A had health care insurance coverage through Medicare and Preferred Senior Supplement; however, Licensee referred patient A for financing with CareCredit.

11. Licensee's financial officer, John Trotter, assisted patient A in applying for credit. Patient A's credit card application was approved and a credit account was opened for her that same day.

12. On that same day, Licensee charged patient A's credit account with CareCredit for the full $2,900 in advance for his professional services as set forth in the treatment plan.

13. Licensee entered into a written contract for treatment with patient A for $2,900, which included the following provisions:

a. "This is not an individual treatment charge. yet a global fee or flat fee, meaning that you are paying for the effort involved to try and correct your condition."

b. "The Doctor determines how many treatments you will need, therefore. the flat fee is the same. if you have received one treatment, or 100 treatments."

c. "Due to the cost and time of the procedure, and the fact that it is a global or flat fee, there are no refunds once you have accepted the recommended care plan provided by the doctor. By signing below, you agree to the scheduled treatment plan and the flat fee or global charges regardless if you receive treatment or not."

d. "Important note: I understand this contract cannot be cancelled for any reason. This is just like purchasing Broadway theater or Super Bowl tickets. No cancellations or refunds for cancellation. Should you cancel, any and all payments made are not subject to refund and any balances due must be paid as agreed. Should you seek refund through your credit card company, or care credit [sic], you will be making a fraudulent refund request, which we will dispute."

14. Licensee's contract for treatment with patient A is unconscionable, deceptive, fraudulent, and/or misleading in that it is a violation of law for Licensee to receive fees for professional services which are not actually rendered.

15. Licensee's contract for treatment with patient A is unconscionable, deceptive, fraudulent, and/or misleading in that it is a one-sided adhesion contract loaded too heavily in favor of Licensee and it contains unlawful terms.

16. On March 17, 2006, patient A underwent her first decompression treatment session.

17. Subsequently, patient A decided she could not afford Dr. Eck's professional services. The following business day, patient A attempted to cancel the contract in writing.

18. Licensee and/or his staff refused to cancel patient A's contract stating: "Here is our response to you and all involved. You signed and dated a contract on 3- 17-06 acknowledging there is [sic] no REFUNDS, for the flat fee of $2900.00."

19. To date, patient A has only had one (1) decompression treatment and has discontinued her treatment with Licensee.

20. To date, Licensee has not refunded patient A any portion of the $2,900 fee paid in advance for his professional services.

21. Licensee committed acts in violation of the healing arts act, K.S.A. 65- 2836 and K.S.A. 65-2837, including but not limited to:

a. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(18), obtaining any fee by fraud, deceit or misrepresentation;

b. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(19), directly or indirectly receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered other than through the legal functioning of lawful professional partnerships, corporations or associations;

c. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(22), charging an excessive fee for services rendered;

d. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(12), conduct likely to deceive, defraud or harm the public; and

e. K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

22. Pursuant to K.S.A. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

COUNT II

23. Petitioner incorporates herein by reference paragraphs 1 through 22.

24. In or about January 2006, Licensee placed an advertisement in The Wichita Eagle newspaper captioned "NO MORE PAIN."

25. In that same advertisement, Licensee made a "Limited Time Offer" for a $15.00 evaluation to determine whether the Accu-Spina IDO Decompression Therapy could help relieve the reader's back pain.

26. On or about January 11, 2006, patient B, a seventy-two (72) year old male, presented to Licensee's clinic for his previously scheduled appointment in response to the above referenced advertisement.

27. Patient B waited for several hours in the lobby before being seen by Licensee.

28. Patient B's chief complaint was chronic low back pain.

29. licensee took two (2) x-rays of patient B's spine and determined that Patient 8 had a herniated disc.

30. Licensee did not document that he performed reflex tests and/or a straight leg raise test.

31. Licensee failed to document from what view each of the x-rays were taken.

32. licensee failed to prepare an adequate report of his findings based on the x·ray films.

33. licensee recommended a treatment plan which included twenty (20) Accu-Spina IDD and/or Lordex Spinal Decompression Therapy, Spinal manipulation, Rehab Therapy, including EMS, massage. strengthening. etc. which would cost $2,900.

34. Licensee referred patient B for financing with CareCredit. licensee's financial officer assisted patient B in applying for credit. Patient B's credit card application with CareCredit was approved and an account was opened that same day.

35. On that same day, Licensee charged the full $2,900 fee in advance for his professional services to patient B's credit account with CareCredit.

36. Licensee entered into a written contract for treatment with patient B for $2,900, which included the following provisions:

a. " ... this is not an individual treatment charge, yet a global fee or flat fee, meaning that you are paying for the effort involved to try and correct your condition, and you are not paying for each individual treatment."

b. ''The Doctor determines how many treatments you will need, therefore, the flat fee is the same, if you have received 1 treatment, or 100 treatments."

c. "Due to the cost and time of the procedure, and the fact that it is a flat or Global fee, there are no refunds once you have accepted the recommended care plan provided by the doctor. By signing below, you agree to the scheduled treatment plan and the flat fee or global charges regardless if you receive treatment or not."

37. Licensee's contract for treatment with patient B is unconscionable, deceptive, fraudulent, and/or misleading in that it is a violation of law for Licensee to receive fees for professional services which are not actually rendered.

38. Licensee's contract for treatment with patient B is unconscionable, deceptive, fraudulent and/or misleading in that it is a one-sided adhesion contract loaded too heavily in favor of Licensee and it contains unlawful terms.

39. On or about January 16, 2006, when patient B arrived at his scheduled appointment for his first decompression treatment, he waited over an hour in Licensee's lobby.

40. When patient B confronted Dr. Eck about the wait, Dr. Eck angrily shouted at patient B to leave of his clinic.

41. Later that same day, patient B attempted to cancel his contract with Licensee.

42. Subsequently, when patient B disputed Licensee's charges with CareCredit, patient 8 was informed that he needed a letter of cancellation from Licensee.

43. On or about April 4, 2006, patient B wrote a letter to Licensee's staff again disputing the $2900 charge to his CareCredit account.

44. To date, patient B has not received any professional services from Licensee, and he has discontinued his treatment with Licensee.

45. To date, Licensee has not refunded patient B any portion of the $2,900 fee charged in advance for his professional services.

46. Licensee committed acts in violation of the healing arts act, K.S.A. 65-2836 and K.S.A. 65-2837. including but not limited to:

a. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(18), obtaining any fee by fraud, deceit or misrepresentation; and

b. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(19), directly or indirectly receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered other than through the legal functioning of lawful professional partnerships, corporations or associations;

c. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(12), conduct likely to deceive, defraud or harm the public;

d. K.S.A. 65-2836(k), violation of any lawful rule and regulation promulgated by the Board, as set forth in K.A.R. 100-24-1. failure to adequately document in the patient records; and

e. K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

47. Pursuant to K.S.A. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

COUNT III

48. Petitioner incorporates herein by reference paragraphs 1 through 47.

49. On or about November 21, 2005, patient C, a sixty-seven (67) year old female, presented to Licensee's clinic in response to an advertisement regarding Accu-Spina IOD therapy.

50. Patient C's chief complaint was chronic low back pain.

51. Licensee took two (2) x~rays of patient C's spine.

52. Licensee failed to document from what view the x-rays were taken.

53. Licensee failed to prepare an adequate report of his findings based on the x-ray films.

54. Licensee recommended a treatment plan to include up to thirteen (13) treatment sessions with the Accu-Spina IDD Decompression Therapy, Spinal manipulation, Rehab Therapy, including EMS, massage, strengthening, etc., which would cost $2,277.

55. Licensee referred patient C for financing with CareCredit. Licensee's financial officer assisted patient C in submitting a credit application. Patient C's application was approved and a credit account was opened that same day.

56. On that same day, Licensee charged patient C's credit account with CareCredit for the full $2,277 in advance for his professional services as set forth in the treatment plan.

57. Licensee entered into a written contract for treatment with patient C for $2,277, which included the following provisions:

a. "This is not a [sic] individual treatment charge, but a global fee for the treatments needed to correct your condition up to 13 treatments. II

b. "Due to the cost and time of the procedure, there are no refunds once you have accepted the recommended care plan provided by the doctor. By signing below, you agree to the scheduled treatment plan and charges, regardless if you receive treatment or not."

58. Licensee's contract for treatment with patient C is unconscionable, deceptive, fraudulent, and/or misleading in that it is a violation of law for Licensee to receive fees for professional services which are not actually rendered.

59. Licensee's contract for treatment with patient C is unconscionable, deceptive, fraudulent, and/or misleading in that it is a one-sided adhesion contract loaded too heavily in favor of Licensee and it contains unlawful terms.

60. On or about December 12, 2005, patient C arrived at 'Licensee's clinic for her first treatment session on the Accu-Spina machine.

61. After patient C waited in excess of an hour and forty-five minutes, patient C stated that she would cancel her contract, but she had already been charged for Licensee's services.

62. Licensee told patient C that she needs to read what she signs. At the same time, he approached patient C in an unprofessional manner and told her to leave his clinic or he threatened to call the police.

63. To date, Licensee has not rendered any professional services under the contract to patient C, nor has he refunded any portion of the $2,277 fee charged in advance for his professional services.

64. To date, patient C has not continued her treatment with Licensee.

65. Patient C disputed Licensee's charges to her CareCredit account.

66. In response to patient C's disputed charges, Licensee's financial officer submitted a written response to CareCredit on behalf of Licensee. Such response was as follows: "Like an attorney's flat fee, our flat fee for services is the same, there are no refunds clearly stated in the paper work (the patient) signed and dated."

67. To date, Licensee has not refunded to patient C any portion of the $2,277 fee charged in advance for his professional services as set forth in the treatment plan.

68. Licensee committed acts in violation of the healing arts act, K.s.a. 65- 2836 and K.s.a. 65-2837, including but not limited to:

a. K.S.A. 65~2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(19), directly or indirectly receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered other than through the legal functioning of lawful professional partnerships, corporations or associations;

b. K.S.A. 65~2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(18), obtaining any fee by fraud, deceit or misrepresentation; K.S.A. 65-2836(b), unprofessional conduct as further defined in

c. K.S.A. 65-2837(b)(12}, conduct likely to deceive, defraud or harm the public;

d. K.S.A. 65-2836(k), violation of any lawful rule and regulation promulgated by the Board, as set forth in K.A.R. 100-24-1, failure to adequately document in the patient records; and

e. K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

69. Pursuant to K.S.A. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

COUNT IV

70. Petitioner incorporates herein by reference paragraphs 1 through 69. On or about January 25, 2006, patient D, a seventy-four (74) year old male, presented to Licensee's clinic in response to an advertisement for a $15.00 examination.

71. Patient D's chief complaint included chronic pain and stiffness in his shoulder and neck muscles. 72.

72. Licensee took four (4) x-rays of patient D's spine.

73. Licensee covered over the emulsion in the x-ray films with labels containing only the patient's name and the date the x-rays were taken.

74. Licensee failed to adequately document from what view the x-rays were taken.

75. Licensee failed to prepare an adequate report of his findings based on the x-ray films.

76. Licensee recommended a treatment plan that included ten (10) cervical and ten (10) lumbar Accu-Spina IDD Decompression and/or Lordex Spinal Decompression therapy. Spinal manipulation, Rehab Therapy, including EMS, massage, strengthening, etc. which would cost $2,900.

77. Patient D declined the lumbar decompression treatments, but he signed a written contract to receive the remainder of the treatment plan, including the ten (10) cervical decompression treatments from Licensee for $1,000.

78. Licensee referred patient D for financing with CareCredit. Licensee's financial officer assisted patient D in applying for the credit through CareCredit. Patient D's credit application was approved and a credit account was opened that same day.

79. On that same day, Licensee charged patient D's credit account with CareCredit the $1,000 fee in advance for Licensee's professional services as set forth in the treatment plan.

80. Licensee also maintained a copy of patient D's Blue Cross Blue Shield health care insurance information.

81 . Licensee entered into a written contract for treatment with patient D for $1,000, which included the following provisions:

a. " ... this is not an individual treatment charge, yet a global fee or flat fee, meaning that you are paying for the effort involved to try and correct your condition, and you are not paying for each individual treatment."

b. "The Doctor determines how many treatments you will need, therefore, the flat fee is the same, if you have received 1 treatment, or 100 treatments."

c. "Due to the cost and time of the procedure, and the fact that it is a flat or Global fee, there are no refunds once you have accepted the recommended care plan provided by the doctor. By signing below, you agree to the scheduled treatment plan and the flat fee or global charges regardless if you receive treatment or not."

82. Licensee's contract for treatment with patient D is unconscionable, deceptive, fraudulent, and/or misleading in that it is a violation of law for Licensee to receive fees for professional services which are not actually rendered.

83. Licensee's contract for treatment with patient D was unconscionable, deceptive, fraudulent, and/or misleading in that it is a one-sided adhesion contract loaded too heavily in favor of Licensee and it contains unlawful terms.

84. On January 25, 2006, patient D received his first decompression treatment.

85. The next day, patient D attempted to cancel his contract.

86. To date, patient D has not continued treatment with Licensee.

87. To date, Licensee has not refunded to patient D any portion of the $1,000 fee charged in advance for Licensee's professional services.

88. Licensee committed acts in violation of the healing arts act, K.S.A. 65- 2836 and K.s.a. 65-2837, including but not limited to:

a. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(19), directly or indirectly receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered other than through the legal functioning of lawful professional partnerships, corporations or associations; K.S.A. 65-2836(b}, unprofessional conduct as further defined by K.s.a. 65-2837(b)(22), charging an excessive fee for services rendered;

b. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.S.A. 65-2837(b)(18), obtaining any fee by fraud, deceit and/or misrepresentation;

c. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.S.A. 65"2837(b)(12), conduct likely to deceive, defraud or harm the public;

d. K.S.A. 65-2836{k), violation of any lawful rule and regulation promulgated by the Board. as set forth in K.A.R. 100-24-1, failure to adequately document in the patient records; and

e. K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

89. Pursuant to K.S.A. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

COUNT V

90. Petitioner incorporates herein by reference paragraphs 1 through 89.

91. In about March 2006, Licensee advertised in The Wichita Eagle newspaper for a free consultation including an analysis of x-rays to determine if the Accu-Spina IDD Decompression Therapy could relieve the reader's back and neck pain.

92. On or about March 30, 2006, patient E, a sixty-five (65) year old female, presented to Licensee's clinic in response to the advertisement.

93. Patient E's chief complaint was low to mid back pain.

94. Licensee did not take x-rays of patient E's spine during the initial visit.

95. Licensee recommended a treatment package that he would normally charge $4,000 for, but he offered to discount the package to $3,400 if patient E signed up for the package that same day.

96. The treatment plan recommended by Licensee included:

a. 20-30 IDD Decompression Therapy;

b. 20-30 H-Wave or Interferential Therapy;

c. 20-30 Neuromuscular Re-education:

d. 20-30 Core Strengthening Lumbar/Cervical Muscle;

e. 20-30 Advanced Bio-Structural Conditioning

f. 20-30 Rx-1 Lumbar Extension Range Motion Stabilizer; and

g. 20-30 Cox Flexion/Distraction Lateral Decompression.

97. Licensee told patient E that she would be better by mid-June of 2006.

98. Patient had Blue Cross and Blue Shield, Medicare health insurance.

99. Later that same day, patient E called Licensee's clinic to accept the package deal and had the total $3,400 fee charged to her credit card in advance for Licensee's professional services as set forth in the treatment plan.

100. On the following visit, Licensee entered into a written contract for treatment with patient E for $3,400, which included the following provisions:

a. "This is not an individual treatment charge, yet a global fee or flat fee, meaning that you are paying for the effort involved to try and correct your condition."

b. ''The Doctor determines how many treatments you will need, therefore, the flat fee is the same, if you have received one treatment, or 100 treatments."

c. "Due to the cost and time of the procedure, and the fact that it is a flat or global fee, there are no refunds once you have accepted the recommended care plan provided by the doctor. By signing below, you agree to the scheduled treatment plan and the flat fee or global charges regardless if you receive treatments or not."

101. Licensee's contract for treatment with patient E is unconscionable, deceptive, fraudulent, and/or misleading in that it is a violation of law for Licensee to receive fees for professional services which are not actually rendered.

102. Licensee's contract for treatment with patient E is unconscionable, deceptive, fraudulent, and/or misleading in that it is a one-sided adhesion contract loaded too heavily in favor of Licensee and it contains unlawful terms.

103. On or about May 25, 2006, patient E told Licensee that she did not feel the treatment was helping like she had expected, and that she did not want to continue with the treatment plan until x-rays were taken.

104. On or about May 26, 2006, Licensee billed patient E's insurer the CPT code 98941, for manual manipulation of patient E's spine in two (2) regions.

105. On or about June 1, 2006, Licensee billed patient E's insurer the CPT code 98941, for chiropractic manipulation of patient E's spine in two (2) regions.

106. On or about June 12, 2006, Licensee billed patient E's insurer the CPT code 98941, for chiropractic manipulation of patient E's spine in two (2) regions.

107. Licensee failed to adequately document in patient E's records, the manual manipulation of her spine on the three occasions described above.

108. On July 26, 2006, Licensee notified patient E that the x-rays were not readable. Licensee's staff told patient E that they would notify her when the x-ray machine was fixed.

109. To date, neither Licensee or his staff, have contacted patient E to schedule her x-rays, and as a result patient E has not continued her treatment with Licensee.

110. To date, patient E has not received the other treatments that she paid for in advance.

111. To date, Licensee has not refunded to patient E any portion of the $3,400 fee charged iD advance for Licensee's professional services as set forth in the treatment plan.

112. Licensee committed acts in violation of the healing arts act, K.S.A. 65- 2836 and K.S.A. 65-2837, including but not limited to:

a. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.s.a. 65-2837(b)(13), making a false or misleading statement regarding the licensee's skill or the efficacy or value of the treatment prescribed by the licensee in the treatment of any disease or other condition of the body or mind;

b. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(18), obtaining any fee by fraud, deceit or misrepresentation;

c. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(19), directly or indirectly receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered other than through the legal functioning of lawful professional partnerships, corporations or associations;

d. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.S.A. 65-2837(b)(12), conduct likely to deceive, defraud or harm the public;

e. K.s.a. 65-2836(k), violation of any lawful rule and regulation promulgated by the Board, as set forth in K.A.R. 100-24-1, failure to adequately document in the patient records; and

f. K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

113. Pursuant to K.s.a. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

COUNT VI

114. Petitioner incorporates herein by reference paragraphs 1 through 113.

115. On or about May 2, 2006, patient F, a forty-one (41) year old male, presented to Licensee's clinic in response to an advertisement he heard on television.

116. Patient F's chief complaint was chronic low to mid back pain.

117. Patient F had previously been diagnosed with a herniated and bulging disc.

118. Licensee recommended a treatment plan that cost $4,000 and included the following treatment:

a. 20-30 IDD Decompression Therapy

b. 20-30 H-Wave or Interferential Therapy

c. 20-30 Neuomu5cular Re-education

d. 20-30 Core Strengthening Lumbar/Cervical Muscle

e. 20-30 Advanced Bio-Structural Conditioning

f. 20-30 Transverse Friction Massage with Celacaine

g. 20-30 Rx-1 Lumbar Extension Range Motion Stabilizer

h. 20-30 Cox Flexion/Distraction Lateral Decompression

119. On that same date, patient F paid the $4,000 fee in advance for Licensee's professional services as set forth in the treatment plan.

120. Licensee entered into a contract for treatment for $4,000 with patient F that contained the following provisions:

a. 'This is not an individual treatment charge, yet a global fee or flat fee .... "

b. "The Doctor determines how many treatments that you will need, therefore, the flat fee is the same, if you have received one treatment, or 100 treatments."

c. "Due to the cost and time of the procedure, and the fact that it is a flat or global fee, there are no refunds once you have accepted the recommended care plan provided by the doctor."

d. "Important note: I understand this contract cannot be cancelled for any reason. This is just like purchasing Broadway theater or Super Bowl tickets. No cancellations or refunds for cancellation. Should you cancel, any and all payments made are not subject to refund and any balances due must be paid as agreed."

121. Licensee's contract for treatment with patient F is unconscionable, deceptive, fraudulent, and/or misleading in that it is a violation of law for Licensee to receive fees for professional services which are not actually rendered.

122. Licensee's contract for treatment with patient F is unconscionable, deceptive, fraudulent, and/or misleading in that it is a one-sided adhesion contract loaded too heavily in favor of Licensee and it contains unlawful terms.

123. To date, patient F has received twenty-six (26) decompression treatments, two (2) strengthening sessions and two (2) laser treatments.

124. Licensee did not adequately document in patient F's records, the strengthening sessions and the laser treatments.

125. Patient F on several occasions left telephone messages for Licensee regarding obtaining a copy of his patient records, but neither Licensee nor his staff returned patient F's telephone calls.

126. On or about September 26, 2006, patient #6 requested his patient records from Licensee in writing.

127. Patient F did not receive his patient records from Licensee until December 28, 2006. after the Board began investigating this matter.

128. To date, patient F has discontinued his treatment with Licensee.

129. To date, Licensee has not refunded any portion of the $4,000 fee charged in advance for his professional services as set forth in the treatment plan.

130. Licensee committed acts in violation of the healing arts act, K.S.A. 65- 2836 and K.s.a. 65-2837, including but not limited to:

K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(19), directly or indirectly receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered other than through the legal functioning of lawful professional partnerships, corporations or associations;

K.S.A. 65~2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(18), obtaining any fee by fraud, deceit or misrepresentation;

K.s.a. 65~2836(b), unprofessional conduct as further defined by K.S.A. 65-2837(b)(12), conduct likely to deceive, defraud or harm the public;

K.S.A. 65-2836(b}, unprofessional conduct as further set defined in K.A.R. 100-22-1, which states each licensee shall. upon receipt of a signed release from a patient, furnish a copy of the patient record to the patient, to another licensee designated by the patient, or to a patient's legally designated representative;

K.S.A. 65-2836(k}, violation of any lawful rule and regulation promulgated by the Board, as further set forth in K.A.R. 100-24-1, failure to adequately document the patient treatment records; and

K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

131. Pursuant to K.S.A. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

COUNT VII

Petitioner incorporates herein by reference paragraphs 1 through 131.

133. On or about October 19, 2006, patient G, a seventy-four (74) year old female presented to licensee's clinic complaining of neck, back and arm pain.

134. Patient G traveled with her daughter-in-law approximately 180 miles from Engelwood, Kansas to Wichita, Kansas to visit Licensee.

135. Licensee recommended a treatment plan that included twenty (20) or more decompression treatments and thirteen (13) strengthening treatments for $1,900. 136. Licensee referred patient G for financing with CareCredit. Patient G's credit application was approved and an account was opened that same day. 137. Licensee maintains the CareCredit application and terms of the credit card agreement with his patient records for patient G.

138. On that same day, Licensee charged patient G's credit account with CareCredit the full $1,900 fee in advance for his professional services as set forth in the treatment plan.

139. Licensee entered into a contract for treatment with patient G for $1,900, which contained the following provisions:

a. "The usual and customary flat or global fee for 20+ non surgical decompression treatments including 13 strengthening and _ therapies included except spinal manipulation, is $1,900.00 and that will be the flat fee charged and this fee will be effective and non refundable once this agreement is signed by the patient or the patients [sic] power of attorney or primary care giver, as the fee will remain the same, if zero or the above agreed upon treatments are given, the above quoted flat fee remains the same and is due and non refundable once this agreement is signed by the patient."

b. "The patient can not cancel or terminate this agreement for any reason or circumstance and shall not in any circumstance receive a refund of any monies paid once this agreement is signed by the patient."

c. "Any monies paid shall NOT be refunded in any circumstance."

d. "The Office reserves the right to discontinue treatments as its sole discretion and will NOT in any circumstance make a refund of any fees paid."

e. "Patient understands that non surgical spinal decompression visits can be transferred to family members that are living in the same household and that unused visits or credits will expire if not used within 120 days from the date of patient's last visit unless office was notified in writing of a leave of absence." .

140. Licensee's contract for treatment with patient G is unconscionable, deceptive, fraudulent, and/or misleading in that it is a violation of law for Licensee to receive fees for professional services which are not actually rendered.

141. Licensee's contract for treatment with patient G is unconscionable, deceptive, fraudulent, and/or misleading in that it is a one-sided adhesion contract loaded too heavily in favor of Licensee and it contains unlawful terms.

142. Subsequently, patient G attempted to cancel her contract with Licensee because traveling to Wichita for the treatments would be difficult in light of her health condition. Additionally, patient G was able to find another chiropractic physician who is closer to where she lives and charges her for individual treatments on an as needed basis.

143. Licensee refused to cancel the contract, stating that there are no refunds or cancellations allowed pursuant to the terms of the contract.

144. To date, patient G had not received any treatments pursuant to the contract from Licensee.

145. Patient G has discontinued her care with Licensee.

146. To date, Licensee has not refunded any portion of the $1,900 fee charged in advance for his professional services as set forth in the treatment plan.

147. Licensee committed acts in violation of the healing arts act, K.S.A. 65- 2836 and K.S.A. 65-2837, including but not limited to:

a. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(19), directly or indirectly receiving any fee, commission, rebate or other compensation for professional services not actually and personally rendered other than through the legal functioning of lawful professional partnerships, corporations or associations;

b. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(18), obtaining any fee by fraud, deceit or misrepresentation; and

c. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(12), conduct likely to deceive, defraud or harm the public; and

d. K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

148. Pursuant to K.s.a. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

COUNT VIII

149. Petitioner incorporates herein by reference paragraphs 1 through 148.

150. On or about January 23, 2006, Licensee advertised in The Wichita Eagle regarding the Secure Balance Sport K.A.T. system {"K.a.t."} to treat balance deficits.

151. On or about January 27, 2006, patient H, an eighty-one (81) year old female presented to Licensee's clinic in response to the advertisement.

152. Patient H's chief complaints were lack of balance and neck pain.

153. Licensee told patient H that the cost would be $1,000 flat fee to cover the necessary treatments on the K.A.T. machine to regain her balance.

154. Licensee referred patient H for financing with CareCredit. Licensee's financial officer assisted patient H in completing the credit application. Patient H's credit application was approved and an account was opened that same day.

155. That same day, Licensee charged patient H's credit account with CareCredit the full $1,000 fee charged in advance for his professional services.

156. Licensee also billed patient H's insurer for manipulations to her cervical spine.

157. After about two (2) months of having K.a.t. treatments three (3) times a week, Licensee noted that patient H was not responding to the treatments as expected.

158. On or about April 11 , 2006, Licensee discontinued the K.A.T. treatments until patient H was re-evaluated.

159. Patient H attempted to contact the clinic for information regarding scheduling and treatments, but was told she would need to speak with someone by the name of "Jennifer."

160. Patient H never received any response or information from "Jennifer" or other clinic staff.

161. Since that date, patient H has not had any further K.A.T. treatments.

162. Licensee did not maintain adequate documentation in patient H's treatment records.

163. Licensee committed acts in violation of the healing arts act, K.S.A. 65- 2836 and K.S.A. 65-2837, including but not limited to:

a. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.S.A. 65-2837(b)(18), obtaining any fee by fraud, deceit and/or misrepresentation;

b. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.S.A. 65-2837(b)(12), conduct likely to deceive, defraud or harm the public;

c. K.S.A. 65-2836(k), violation of any lawful rule or regulation promulgated by the board, as further set forth in K.A.R. 100-24-1, failure to adequately document the patient treatment records; and

d. K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

164. Pursuant to K.S.A. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

COUNT IX

165. Petitioner incorporates herein by reference paragraphs 1 through 164.

166. From about December 28, 2005 through about April 3, 2006, Licensee treated patient I for complaints of pain in his lower right extremity.

167. During that time, Licensee did not maintain adequate documentation in patient I's treatment records.

168. From about April 13, 2006 to about August 17, 2006, Licensee treated patient J for complaints of stiffness and pain in his lower back and right leg.

169. During that time, Licensee did not maintain adequate documentation in patient J's treatment records.

170. From about April 24, 2006 to about May 3, 2006, Licensee treated patient K for complaints of low back pain.

171. During that time, Licensee did not maintain adequate documentation in patient K's treatment records.

172. From about March 27. 2006 to about July 20, 2006. Licensee treated patient L for complaints of neck pain which radiated into her right hand.

173. During that time, Licensee did not maintain adequate documentation in patient L's treatment records.

174. Licensee violated the healing arts act, K.S.A. 65-2836(k), by violating the lawful regulation promulgated by the board, K.A.R. 100-24-1, failing to adequately document the patient treatment records.

COUNT X

175. Petitioner incorporates herein by reference paragraphs 1 through 174.

176. On or about November 1, 2005 through at least February 2007, Licensee submitted multiple similar recurring advertisements in the The Wichita Eagle advertising a "Limited Time Offer" for a free or reduced priced clinical evaluation to see how decompression therapy could help the reader's back and neck pain.

177. On at least one occasion, Licensee also advertised in the Hays Daily News newspaper.

178. On multiple occasions during the aforementioned time period, Licensee published in the recurring advertisements that the offer was only available for a specific period of time. but subsequent advertisements would have the same offer with the dates changed.

179. Such recurring advertisements are fraudulent and/or false because patients are induced to act quickly to take advantage of a "limited time offer" when Licensee has the intent to make the offer beyond the time advertised.

180. On multiple occasions during the aforementioned time period, Licensee advertised in The Wichita Eagle a special $15 rate for his services which would include a full set of specialized x-rays.

181. Such advertisements are fraudulent and/or false because Licensee promises "specialized" x-rays to potential patients when he does not know if x-rays are indicated.

182. In the same advertisements, Licensee made the following statement:

a. "I brought professional quality health care here to this area in 1995."

183. Implicit in the above statement is that Licensee is advertising professional superiority over other health care providers in the area.

184. On multiple occasions during the aforementioned time period, Licensee published advertisements captioned "No More Pain". Such caption implies to the reader that Licensee is guaranteeing that they will have permanent pain relief as a result of Licensee's professional services.

185. The above referenced advertisements captioned "No More Pain" also contained the following statement:

a. "Thanks to this technology, I am able to help patients quickly without any risks or complications."

186. Licensee's above statement is fraudulent, false and/or misleading as it implicitly guarantees that there are no risks or complications with his professional services.

187. In the same advertisements captioned "No More Pain" Licensee solicited professional patronage by publishing fraudulent, false and/or misleading statements having the capacity to deceive patients regarding the treatment efficacy, technology, and science of the Accu-Spina IDD Decompression Therapy, including the following:

a. "Years ago, NASA discovered that astronauts while in space experienced an increase of the Intervertabral Disc space in their back and neck. In the 'zero gravity' state, astronauts gained as much as two inches due to increased disc height and pressure on their spines was eliminated."

b. "These dramatic improvements are seen on before and after MRI studies."

188. Licensee solicited professional patronage by publishing fraudulent, false and/or misleading statements having the capacity to deceive patients regarding the treatment efficacy, technology and science of the Accu-Spina IDD Decompression Therapy, including the following:

a. "Research has shown in a clinical study, 93% of patients treated with spinal decompression were effectively treated."

189. In another advertisement captioned "New FDA Approved Pain Treatment Gives Lasting Relief Without Surgery", Licensee published fraudulent, false and/or misleading statements having the capacity to deceive patients regarding the treatment efficacy, technology, and science of the Accu-Spina IDD Decompression Therapy, including the following statement:

a. "Spinal decompression is a major advancement in the treatment of back and neck pain because it is the only non-surgical disc treatment proven to have lasting results."

190. The above statement is misleading in that Licensee implies to the reader that they will only have lasting relief with his treatment.

191. On or about November 16, 2005, Licensee advertised his IDD Therapy in postcards mailed to potential patients which contained the following statement:

a. "Call Now For a $15 Evaluation including X-rays to see if you Qualify for IDD Therapy" but he advertised, "Must Call Today to Qualify."

192. Licensee's advertisement contains a fraudulent, false and/or misleading statement regarding Licensee's promise of x-rays to potential patients when he does not yet know if x-rays are indicated.

193. Licensee also states the offer is only available the one day, but there is no date on the advertisement.

194. On or about November 30, 2005, licensee published an advertisement in The Wichita Eagle newspaper and described IDD therapy as a "medically-supervised" procedure.

195. The above statement is fraudulent, false and/or misleading in that it suggests a physician licensed to practice medicine is supervising the procedure, when Licensee is licensed to practice chiropractic.

196. In about July 2006, Licensee mailed a series of three separate flyers to patient M who had had seen him for an initial consultation, but who had not returned for further treatment.

197. In the first flyer, Licensee made the following statements:

a. 'We discussed your case, went over the results and detailed the exact treatment plan in order to get you out of pain,"

b. "clinically proven to relieve back pain in 93% of patients with spinal decompression"

c. "The only thing that assures failure and a lifetime of pain & suffering is if you give up."

d. "It has no documented side effects."

e. "I believe the Accu-Spina IDD® decompression therapy is the answer for you." However, at the end of the letter Licensee provides the following disclaimer: "Program limited to the Lordex and DTU Decompression Machines only."

f. "I believe this may be the key to your vault that unlocks your pain and ends your suffering . . . forever."

g. "If you enroll in our 'Cost Effective Program' and use your $1,000.00 check (enclosed) you will be getting our $4,000.00 treatment plan for $1,900.00."

h. "-not too many people who qualify for treatment and witness the Accu-Spina first hand - pass up this golden opportunity to finally be pain free."

i. Licensee further advertised "If you are one of the first 17 patients to call you can receive an additional $200.00 off. This would bring your total cost for decompression to $1700.00. This is a total savings of $2300.00."

198. The above referenced statements advertised by Licensee are fraudulent, false, misleading, unprofessional and/or implicitly guarantee Licensee's professional services will provide the patient with pain relief.

199. When patient M did not respond to the first flyer, Licensee mailed a second flyer captioned "FINAL NOTICE" and contained the following statements:

a. "You WILL get our $4000 treatment package for only $1700. Yes a savings of $2300."

b. "Just give us a call by July 14th, 2006 and you can still get your $2300 savings to end your pain!!" 200. The above referenced statements advertised by Licensee are unprofessional and/or guarantee that Licensee's professional services will provide the patient with pain relief.

201. When patient M did not respond to either of the previous flyers, Licensee mailed a third flyer captioned, 'WARNING: ONLY 3 DAYS LEFT!" which contained the following statements:

a. "So why haven't I given up on you? Simple. Because I realize this may very well be your ONLY chance to stop your back or neck pain."

b. "And every time the success story is just a little different. But in the end ... two people get to fulfill their dreams. You end your pain. And I provide the opportunity."

c. "If you would like to end your pain and save $2000 - $2300 you need to call Heather today or at least before Friday July 28th."

d. "Two Ways to save:

1) You can receive our $4000 treatment package for only $1700. You save $2300. Or

2) You can receive our $2900 treatment package for only $900. You save $2000."

202. The above statements advertised by Licensee are unprofessional and implicitly guarantee Licensee's professional services will provide the patient with pain relief.

203. The third flyer is also misleading because it does not state which treatment package is actually indicated for the patient's condition.

204. Licensee's statements in all the aforementioned advertisements contained misstatements, falsehoods, misrepresentations, sensational and/or fabulous statements all of which were intended to or had a tendency to deceive credulous or vulnerable members of the public.

205. As a result of Licensee's fraudulent, false and/or misleading advertisements, numerous patients were induced to signing unconscionable adhesion contracts with licensee.

206. Licensee committed acts in violation of the healing arts act, K.S.A. 65- 2836 and K.S.A. 65-2837, including but not limited to:

a. K.S.A. 65-2836(d), the use of fraudulent or false advertisements;

b. K.S.A. 65-2836(b), unprofessional conduct as further defined in K.S.A. 65-2837(b)(1), solicitation of professional patronage through the use of fraudulent or false advertisements, or profiting by the acts of those representing themselves to be agents of the licensee;

c. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.s.a. 65-2837(b)(7), advertising professional superiority or the performance of professional services in a superior manner;

d. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.S.A. 65-2837(b)(8), advertising to guarantee any professional service;

e. K.S.A. 65-2836(b), unprofessional conduct as further defined by K.S.A. 65-2837(b)(13), making a false or misleading statement regarding the licensee's skill or the efficacy or value of the treatment prescribed by the licensee or at the licensee's direction in the treatment of any disease or other condition of the body or mind;

f. and K.S.A. 65-2836(b), unprofessional and/or dishonorable conduct.

207. Pursuant to K.S.A. 65-2836, the Board may revoke, suspend, censure or otherwise limit Licensee's license for violation of the healing arts act.

WHEREFORE, Petitioner prays that the Board make findings of fact and conclusions of law that Licensee committed these acts in violation of the healing arts act, that Licensee's license to practice chiropractic in the State of Kansas be revoked, suspended, censured, fined or otherwise limited, and that the Board assess such administrative fines and impose such costs against Licensee as it shall deem just and proper and as authorized by law.

Respectfully Submitted,

__________________________
Keili J. Stevens # 16032
Litigation Counsel
Dan Riley #15658
Associate Counsel
Kansas State Board of Healing Arts
235 S. Topeka Boulevard
Topeka, Kansas 66603-3068
Telephone (785) 296-7413
Fax (785) 296-0852

This article was posted on March 1, 2009.

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