ACA's Medicare lawsuit in trouble

An investigation by the World Chiropractic Alliance (WCA) has revealed that the Department of Health and Human Services (HHS) filed a supplemental memorandum in support of motion for summary judgment in the American Chiropractic Association's Medicare lawsuit.

Last year, the ACA's companion lawsuit against Trigon Health Care was brought to a halt by a similar type of motion, which the court granted. An appeal by the ACA failed to overturn the decision.

The memorandum in the HHS lawsuit was filed in March 2004, although the ACA failed to notify the profession of the action. The most recent press release on the ACA website is dated Jan. 29, 2004 and announces that $1 million has been raised over the past two years by the organization's National Chiropractic Legal Action Fund (NCLAF). The funds were earmarked for the Trigon and HHS lawsuits.

The two court cases have cost an estimated $5-7 million so far, according to the ACA. Handling both suits is attorney George McAndrews, brother of Jerome McAndrews, DC, national spokesperson for the group.

The lawsuit against the Health Care Financing Administration (HCFA), filed on November 12, 1998, claimed that the Medicare+Choice regulations proposed by the HCFA unfairly deny Medicare beneficiaries access to chiropractic services in Medicare managed care.

A key complaint was that, according to regulations and policy statements issued by the HHS and HCFA, Medicare+Choice organizations may allow non‑chiropractors to perform subluxation correction services and may operate as medical gatekeepers to shut out chiropractors. Note: In 2001, HCFA was renamed the Centers for Medicare & Medicaid Services (CMS) and is under the auspices of the HHS.

Like the Trigon suit, the HHS/HCFA lawsuit initially won widespread support from the profession, since the ACA promoted it as part of a "Save our Subluxation" campaign. Yet, again like the Trigon action, the weaknesses in the HHS/HCFA suit were quickly revealed.

The WCA, as well as the two other Chiropractic Coalition organizations -- the International Chiropractors Association and Federation of Straight Chiropractors and Organizations ‑‑ withdrew financial support from the action and urged the profession to pursue legislative redress. The organizations pledged, however, to take no action to oppose or in any manner undermine the ACA's effort in court.

The rationale behind the Coalition's decision to seek a legislative solution was that the legal action did not correct the central problem regarding the Medicare system -- the designation of chiropractors as limited "physicians," a move that was strongly supported and promoted by the ACA.

Medicare regulations clearly state that "physicians" are defined as doctors of medicine or osteopathy, while chiropractors (as well as doctors of podiatric medicine and optometry) are physicians for "limited purposes."

In 1998, HCFA Administrator Nancy‑Ann Min DeParle wrote to the ACA and explained: "The manual manipulation of the spine to correct a subluxation revealed by x‑ray is expressly referenced as a covered physician service. For purposes of providing the services only, the statute also states that a chiropractor is included in the definition of 'physician.' It does not follow, however, that this service cannot be provided by others who meet the definition of physician for all purposes, such as osteopaths."

By categorizing chiropractors as physicians under Medicare, DCs are under the same restrictions as optometrists and podiatrists. That is, they can perform only those services specifically mentioned in Medicare statutes. The same rules, however, allow MDs and DOs to perform <B>all<B> services, including those provided by chiropractors, podiatrists and optometrists. There is no allowance, under the Medicare statute, for any "exclusivity" of services by any of the limited physician categories.

If granted, the motion for summary judgment will probably end the legal action against the HHS. The decision would be celebrated as a victory for physical therapists, who have argued against the ACA's position.

"The ACA rests its entire argument on the presence in the statute of one word, which Congress relegated to a parenthetical: the word 'subluxation,' noted the American Physical Therapy Association (APTA) in an earlier motion. "The ACA insists that the presence of this single word in the statute transforms a provision which was patently intended to limit the services for which chiropractors could be reimbursed under Medicare into a provision granting chiropractors exclusive authority to provide an entire category of service. This argument is nonsense." APTA, originally named a defendant in the ACA lawsuit was later dismissed in the case.

"It is clear that Medicare problems will not be solved by continued legalistic nitpicking about the extent of services allowed DCs under the physician category," stated Terry A. Rondberg, DC, president of the World Chiropractic Alliance.

"We must go to the core of the problem and force the federal government to acknowledge that we are a separate and distinct health care discipline, deserving of a separate and distinct provider category," he stressed. "Our services and training are unique and it is impossible to lump us together with podiatrists and other limited medical providers. Changing the way Medicare categorizes chiropractors is the only viable solution to this problem."

To affect that change, the Coalition was instrumental in the introduction of HR 2560 ‑‑ "Chiropractic Medicare Freedom and Benefit Protection Act" ‑‑ by Rep. Donald Manzullo. The bill would establish a separate category for chiropractors and provide that chiropractic services could only be provided by a DC. It would also insure Medicare coverage for x‑rays, exams, and the use of chiropractic instrumentation. The bill also contains a provision that allows for objective evidence of subluxation as the basis for qualifying, meaning that a patient would not need to present with a musculoskeletal condition to qualify for chiropractic care.

The ACA vehemently opposed HR 2560 and specifically lobbied against it in Congress, contending that its lawsuit would resolve the problems DCs faced in Medicare.

The timing of the HHS's motion for summary judgment has raised questions.

"It seems unlikely that the HHS just happened to file its motion just weeks before the Trigon case was decided, particularly since there had been no significant activity in the case for nearly two years," Dr. Rondberg noted. "There is no way to be certain, but I must wonder if the HHS guessed at the outcome in the Trigon case and decided it, too, would finally end the lengthy court battle with a similar motion."

The ACA's failure to inform the profession of the motion, however, is the most troubling aspect of the situation, he stated.

"The ACA has solicited and received more than a million dollars from doctors around the country. They owe those doctors the truth about what is happening in the suit and the increased prospects for defeat."

Rondberg said the WCA will continue working closely with its Coalition partners to support HR 2560.