Disciplinary Actions against Michael McClain, D.C.

Stephen Barrett, M.D.


In 2011, the Montana Board of Chiropractors issued a Proposed Notice of Concern that asked Michael McClain, D.C. to attend a hearing to discuss concerns about his contracting with patients for large numbers of prepaid visits. In 2013, the matter was settled by a stipulation (shown below) which stated the following:

The stipulation called for McClain to (a) pay a $2,400 administrative fine, (b) complete 6 hours of continuing education on ethics and boundaries, (c) improve his communication with patients, and (d) administer an informed consent form that specifies that his wellness/maintenance care plan "makes no representation that any treatment it offers will cure or prevent any condition, disease, or event, other than vertebral subluxation."

In 2014, the board sent McClain another Notice of Proposed Board Action in which it expressed concern about two more patients who had seen at Vitality Energy Chiropractic during 2009 and 2010. This matter was settled with a stipulation under which the board reprimanded Mlain but concluded that no further action was needed because the prior stipulation had addressed what needed to be done. The board also reprimanded McClain's wife, Terah McClain, D.C., who had evaluated one of the patients.


BEFORE THE BOARD OF CHIROPRACTORS
DEPARTMENT OF LABOR AND INDUSTRY
STATE OF MONTANA

In the Matter of the Proposed
Disciplinary Treatment of the License of

MICHAEL McCLAIN, a Licensed
Chiropractor,

License No. 1012.

 

)
)
)
)
)
)
)
)
)
)


Docket No. CC-II-0350-CHI

Complaint No. 2009-017 -CHI
Complaint No. 2010-016-CHI
Complaint No. 2010-017 -CHI

STIPULATION


TO: Michael McClain
c/o Kenneth K. Lay
Crowley Fleck
P.O. Box 797
Helena, MT 59624-0797

The Business Standards Division of the Department of Labor and Industry of the State of Montana ("Department"), by and through its legal counsel, Mary W. Tapper, and Michael McClain ("Licensee"), by and through his counsel of record, Kenneth K. Lay of Crowley Fleck, PLLP, hereby stipulate and agree as follows:

STIPULATION

1. Montana Licensure. Licensee is licensed as a Chiropractor by the State of Montana Board of Chiropractors ("Board"), holding Montana license 1012.

2. Board's Duty. The Board has a statutory obligation to protect the public health, welfare and safety under Mont. Code Ann. §§ 37-1-131 and 37-1-307.

3. Jurisdiction and Waiver of Contested Case Hearing Rights. Licensee admits the jurisdiction of the Board over the subject matter of the above-entitled proceeding. Licensee desires to avoid unnecessary expenditure of time and other valuable resources in resolving the issues in this action. Therefore, Licensee specifically and affmnative1y waives a contested case hearing and all rights to appeal under the Montana Administrative Procedure Act and elects to resolve this matter on the terms and conditions set forth in this Stipulation.

4. Voluntary Action. Licensee acknowledges that Licensee has read and understands each term of this Stipulation and the Notice of Proposed Board Action issued in this matter. Licensee acknowledges that Licensee enters into this Stipulation voluntarily and without reservation. Licensee acknowledges that no promise, other than those contained in this Stipulation, and no threat has been made by the Department or by any member, officer, agent or representative of the Department to induce Licensee to enter into this Stipulation. Further, Licensee specifically acknowledges that he understands that he has a right to legal counsel in this matter, and he has obtained legal counsel.

5. Department's Contentions and Respondent's Responses. The Department's contentions alleged in its Notice of Proposed Board Action are incorporated herein. Those contentions are summarized as follows:

a. Department's Factual Contentions Regarding Complaint 2009-017 -CHI.

As to Complaint 2009-017-CHI, the Department Contends as follows: Licensee consulted with DT, DM and DY individually at three separate appointments. Each patient was examined and x-rayed by Licensee. Based upon the examination and x-rays, Licensee advised each patient that 80 visits were required to correct the alignment of their necks and spines at a cost of $8,000.00; however, if the patient paid in advance, Licensee would discount the fee to $4,000.00. Licensee informed DT, DM and DY that failure to correct the spinal problems could lead to serious ailments including cancer, heart problems and other serious health conditions. Licensee presented his chiropractic philosophy to DT, DM and DY emphasizing the need to commit to 80 visits for the sake of their health, and 80 visits would cure their ailments.

DT, DM and DY independently sought advice from another chiropractor for a second opinion. It was the opinion of the second chiropractor that the history, examination and diagnoses supplied by Licensee for DT, DM and DY were substandard and did not support or justify such expensive or long-term care plans.

b. Licensee's Response Regarding Complaint 2009-017-CHI.

As to Complaint No. CHI-2009-017, Licensee responds as follows: Licensee approaches chiropractic care, in part, from the perspective of wellness and maintenance of proper long-term spinal health. The goal of treatment from this approach is not to simply eliminate a patient's immediate pain but also to correct and optimize the normal position of the patient's spine, and to stabilize and maintain spinal health in the long-term through maintenance and wellness care.

Licensee acknowledges that he recommended 80-visit treatment plans for the patients at issue in Complaint No. CHI-2009-017, and states that these plans were intended as long-term wellness and maintenance care, and not as therapeutic care to treat or cure any particular ailment. Licensee educates patients about his approach to chiropractic, including the benefits of wellness and maintenance care. Ultimately, none of these patients at issue in Complaint No. 2009-017- CHI saw Licensee for more than one or two visits, and none proceeded with significant chiropractic treatment or maintenance.

Licensee further notes that the patients at issue in to Complaint No. CHI-2009-017, DT, DM and DY, were seen in April and May, 2009. Since that time, Licensee has substantially revised his practice with respect to treatment recommendations and advance payments for multiple-visit treatment plans. Since 20 I 0, it has been Licensee's practice that any treatment recommendations are broken out into an initial course of medically necessary corrective or therapeutic care to address a patient's condition or symptoms for which the patient sought care. If additional wellness or maintenance care is recommended, Dr. McClain carefully explains the differences between medically necessary therapeutic/ corrective care and wellness/maintenance care, and the purposes of each.

c. Department's Factual Contentions Regarding Complaint 2010-016-CHI.

As to Complaint No. 2010-016-CHI, the Department contends as follows:

Deborah Allport ("Allport") sought treatment from Licensee for lower back pain due to yard work. After Licensee examined and x-rayed Allport, Licensee prescribed a treatment plan of over 80 visits at a cost of$3,100.00, to heal her lower back pain. Allport informed Licensee she only wanted to receive the number of treatments covered by her insurance plan, which was 12 visits. Licensee stated it was not acceptable to him to do anything less than his plan of care.

d. Licensee's Response Regarding Complaint No. 2010-016-CHI:

As to Complaint No. 2010-016-CHI, Licensee responds as follows:

Ms. Allport informed Licensee that her primary interest was in addressing her immediate pain. Licensee acknowledges that he recommended an 80-visit treatment plan for Ms. Allport, and states that the plan was intended as long-term wellness and maintenance care, and not as therapeutic care to treat or cure any particular ailment. Licensee educated Ms. Allport patients about his approach to chiropractic, including the benefits of wellness and maintenance care, and made recommendations on that basis. Licensee did not refuse to treat Allport. Rather, there was a mutual understanding that Allport chose not to proceed with any substantial treatment, and she received only one adjustment.

Licensee further notes that Deborah Allport, was seen in April 2010. Since that time, Licensee has substantially revised his practice with respect to treatment recommendations and advance payments for multiple-visit treatment plans. Since 2010, it has been Licensee's practice that any treatment recommendations are broken out into an initial course of medically necessary corrective or therapeutic care to address a patient's condition or symptoms for which the patient sought care. If additional wellness or maintenance care is recommended, Dr. McClain carefully explains the differences between medically necessary therapeutic/ corrective care and wellness/maintenance care, and the purposes of each.

e. Department's Contentions Regarding Complaint No. 2010-017-CHI.

As to Complaint No. 2010-017 -CHI, the Department contends as follows:

Licensee offered free back scans to the public in exchange for a donation to the local food bank. Mark Schummer ("Schummer") had no back or neck pain prior to having the scan; he was simply curious about the device Licensee used for the scan. After Licensee performed the scan on Schummer, Licensee wanted Schummer to have extensive x-rays taken. Licensee told Schummer he had significant issues with his spine, based upon the examination and x-rays, and Licensee recommended a 72-visit plan of care for Schummer at a cost of $3,120.00. Schummer was frightened and concerned about his health when Licensee told him about the serious spinal problems. Licensee told Schummer the treatments would also cure other ailments he had. Schummer wrote a check to Licensee for a discounted fee of $2,652.00 for the 72 visits.

After Schummer began treatments with Licensee, Schummer observed that his treatment plan was not unique; the other patients in Licensee's office were undergoing the same treatments which had been prescribed for him. Schummer was also concerned his treatments were not covered by insurance even though Licensee told Schummer he had serious spinal problems which needed to be corrected in order to prevent more serious problems in the future. Schummer consulted with another chiropractor for a second opinion regarding Licensee's extensive plan of care and also because he was now experiencing back pain due to Licensee's adjustments.

f. Licensee's Response Regarding Complaint No. 2010-017-CHl.

As to Complaint No. 2010-017 -CHI, Licensee responds as follows:

Licensee's treatment recommendations for a patient are tailored to the patient's individual circumstances and based primarily on examination and evaluation of the patient and the conditions he observes during the course of treatment. Licensee acknowledges that he recommended a 72-visit plan for Schummer, and states that the plan was intended as long-term wellness and maintenance care, and not as therapeutic care to treat or cure any particular ailment. Licensee educated Schummer about his approach to chiropractic, including the benefits of wellness and maintenance care, and made recommendations on that basis. Licensee informed Schummer at the time he engaged his services that the wellness and maintenance care recommended for him was likely not covered by his insurance, which only covered care for a medical necessity. Schummer opted to discontinue care and, as a courtesy to the patient, Dr. McClain refunded the entire amount paid by Schummer for his services. Schummer never complained to Licensee of alleged back pain caused by Licensee's adjustments.

Licensee further notes that Mr. Schummer was seen in May 2010. Since that time, Licensee has substantially revised his practice with respect to treatment recommendations and advance payments for multiple-visit treatment plans. Since 2010, it has been Licensee's practice that any treatment recommendations are broken out into an initial course of medically necessary corrective or therapeutic care to address a patient's condition or symptoms for which the patient sought care. If additional wellness or maintenance care is recommended, Dr. McClain carefully explains the differences between medically necessary therapeutic/ corrective care and wellness/maintenance care, and the purposes of each.

g. Department's Contentions regarding Cooperation with the Board Investigation.

In the Notice of Proposed Board Action, the Department stated that during the investigation of the above-referenced complaints, the Board requested information from Licensee regarding the number of Patients who have contracted with Licensee for a large number of prepaid visits. Based on advice of legal counsel, Licensee objected. The Notice of Proposed Board Action alleges that Licensee refused to provide information to the Board, in violation of AR.M. 24.126.2301 (i) and (q). However, the Board withdraws any claim based on this rule.

6. Final Compromise and Settlement. The Department and the Licensee agree that this Stipulation shall be a final compromise and settlement of the Departments' disputed grounds for discipline as a result of Licensee's alleged conduct. Licensee disputes the Department's contentions, and denies any violation warranting disciplinary action by the Board. Nonetheless, Licensee desires to avoid unnecessary expenditure of time and other valuable resources in resolving the issues in this action, and therefore enters this stipulation and agrees to the sanctions set forth below.

The Department's entrance to this Stipulation does not restrict the right of the Department or the Board of Chiropractors to recommend disciplinary action against Dr. McClain on the basis of future misconduct, or conduct at issue in any complaint against Dr. McClain currently pending before the Board of Chiropractors.

7. Incorporation into Final Order. The Department and the Licensee agree that this Stipulation shall be incorporated into and made a part of the Final Order issued by the Montana Board of Chiropractors herein.

8. Public Documents and Reportability. The Department and the Licensee agree that this Stipulation and the Final Order are public documents. Licensee understands that this disciplinary action will be reported to national data banks as required by law.

9. Agreed Sanctions. The following conditions shall apply to the continued licensure of Licensee in the State of Montana:

(a) Licensee shall pay an administrative fine in the amount of $800 for each complaint herein for a total of $2400.00 to be paid by cashier's check or money order, payable to the Montana Board of Chiropractors, and such payment shall be tendered to the Board office at:

Board of Chiropractors
301 South Park Avenue
PO Box 200513
Helena, Montana 59620-0513

no later than 30 days following the execution of the Final Order in this matter, and not before. Mont. Code Ann. § 37-1-312(1)(h).

(b) Licensee shall, within one year following execution of the Final Order in this matter, complete an additional 6 hours of continuing education on ethics & boundaries. This shall be in addition to fulfillment of licensee's other continuing education requirements.

(c) Licensee shall abide by all applicable Montana statutes and Administrative Rules applicable to the chiropractic profession pertaining to the use of escrow accounts for the handling of advance payments for any services rendered to patients.

(d) Licensee acknowledges the potential for patient confusion with respect to therapeutic care, and long-term wellness and maintenance care. Licensee recognizes that chiropractors must effectively communicate the nature of any recommendation for long-term wellness and maintenance care. To that end, licensee will take steps to improve his communications with patients regarding the nature, purpose, benefits, and limitations of any wellness and maintenance care he may recommend. Specifically, in connection with any recommendation for long-term wellness and maintenance care, Licensee will clarify to the patient that his treatment recommendations are not intended to diagnose, cure or treat any particular condition or disease, other than spinal misalignment and/or nerve interference. Licensee will provide all patients to whom he recommends wellness/maintenance care with an informed consent form containing the following language:

Vital Energy Chiropractic provides therapeutic care to correct vertebral subluxation (a misalignment of one or more of the vertebrae, which may cause interference with nerve function). In addition to therapeutic or corrective care to address vertebral subluxation, Vital Energy Chiropractic may also recommend a course of regular chiropractic treatment with the goal of optimizing spinal health and alignment and minimizing nerve interference, which are important components of overall health along with nutrition, exercise, stress management, and other factors. However, Vital Energy Chiropractic does not diagnose or treat any disease or condition other than vertebral subluxation and Vital Energy Chiropractic makes no representation that any treatment it offers will cure or prevent any condition, disease, or event, other than vertebral subluxation.

(e) On the basis of the above assurances from Licensee, as well as the Licensee's above-stated representations with respect to changes to his practice and the absence of any recent similar complaints against Licensee, the Department agrees that at this time, no further reprimand or probationary period is necessary to address the conduct alleged in the Notice of Proposed Board Action is necessary.

10. Inadmissibility. In the event the Board, in its discretion, does not approve this settlement or a lesser sanction than is provided for herein, this Stipulation is withdrawn and shall be of no evidentiary value and shall not be relied upon nor introduced in any contested hearing. Licensee agrees that should the Board reject this Stipulation, and if this case proceeds to a contested case hearing, Licensee will assert no claim that the Board of Chiropractors was prejudiced by its review and discussion of this Stipulation or of any records relating hereto.

NOTE: THIS AGREEMENT IS SUBJECT TO FINAL APPROVAL BY THE MONTANA BOARD OF CHIROPRACTORS.

__________________________
Kevin Maki
Department Counsel
Montana Board of Chiropractors

DATE 9-9-2013


_________________________
Michael McClain
Licensee


DATE 8-14-13

_________________________
Kenneth K Lay
Attorney for Michael McClain

DATE 8-26-13

FINAL ORDER

The Board of Chiropractors (Board), enters as it Findings of Fact and Conclusions of Law, the stipulated facts and violations as stated in the Stipulation. The Board, giving primary consideration to the sanctions that are necessary to protect and compensate the public and secondary consideration to any sanctions designed to rehabilitate the Licensee, approves, adopts, and incorporates the Stipulation into this Final Order.

DATED this 4th day of October, 2013.

______________________
Presiding Officer
Board of Chiropractors

This article was posted on August 18, 2015.

Links to Recommended Companies