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The president of the South Dakota Chiropractor Association contends the prepayment plans he has used for years without any patient complaints are ethical financial tools for his customers.

His licensing board disagrees.

The South Dakota Board of Chiropractic Examiners ruled earlier this year that Dr. Josh Biberdorf, a chiropractor with Black Hills Health & Wellness Center in Rapid City, violated its administrative rules against prepaid treatment plans. In September, Biberdorf signed a consent agreement with the board that said he would stop using prepaid plans. As part of that agreement, Biberdorf will provide random access to the licensing board to review his office records during a 12-month probation period. He also agreed to repay $10,000 in investigative and attorneys' fees.

"It is the board's position that prepaid plans may create, in the mind of the patient, a perceived need for care which may exceed appropriate care under the circumstances," said Craig Kennedy, the board's attorney. "They may also create improper financial incentives for chiropractors to provide unnecessary treatment."

Prepayment treatment contracts obligate a patient to pay in advance, either in a lump sum or in installments, for a prescribed course of treatment in exchange for a financial discount. Extended payment options typically obligate a customer to monthly payments that cover a predetermined number of treatments agreed upon in advance.

Biberdorf defends prepayment plans as commonplace for many professional services, including the dental and legal fields, and said his use of them was ethical.

"Our law says that they can't be used to obligate patients to further care they don't need, and the South Dakota Board of Chiroporactic Examiners incorrectly extrapolates that law to say that they all do," he said of prepaid plans.

The prepayment contracts he used all contained full refunds for any unused care, he said. His patients were free to discontinue care at any time and receive a complete refund for any unused care, he said. Patient payments went into an escrow account, not the general office account, and funds were only transferred at the time the services were rendered.

Attorneys have used prepayment plans -- known as retainers -- for centuries, said Tom Barnett, the executive director of the South Dakota State Bar Association.

"Retainers have been around for hundreds of years in the legal profession," Barnett said. Legal retainers are highly regulated by rules established by the state Supreme Court that have the effect of law, he said. Barnett couldn't speculate on how prepayment plans in the chiropractic industry might compare.

The South Dakota Dental Association has not taken a stance on prepayment contracts for its membership, which includes orthodontists, said executive director Paul Knecht.

"We don't have a position on prepayment contracts, as long as they are ethical and optional," Knecht said. The state Board of Dentistry, which licenses dental practitioners, did not respond to a request for information on those contracts by Dec. 23.

During his 15 years of practice, the state board of examiners never received a single complaint about his billing practices or his professional conduct, Biberdorf said.

"There wasn't one patient complaint," he said.

He suspects the complaint against him originated with a competing chiropractor. BHHWC also has satellite offices in Chadron, Neb., and Faith. He believes the disciplinary process that labeled his conduct "unprofessional" is an unfair process.

"Our own board is judge, jury and executioner in this case," he said.

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Biberdorf said the use of prepaid plans is common among the state's approximately 385 chiropractors. Perhaps two-thirds of those belong to the member association that Biberdorf leads. As president of the SDCA, he opted not to challenge the legality of the administrative rule against them to help maintain unity in the organization.

"My whole message as president of the organization is one of unity," Biberdorf said. "I chose to stop this process because I didn't want to encourage an ‘us against them' mentality."

Contact Mary Garrigan at 394-8424 or







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