Court shoots down ACA lawsuit case (again!)

by Terry A. Rondberg, DC

In mid-October, the US District Court for the District of Columbia granted the defendant’s motion for summary judgment against the American Chiropractic Association’s lawsuit against Medicare. It denied the ACA’s cross-motion for summary judgment. Then it denied as moot all other pending motions. In other words, it closed the book on the ACA’s attempt to sue Medicare.

This didn’t come as a surprise to many DCs. No matter how hard the ACA tried to spin it, the lawsuit was a disaster from the beginning -- and an expensive one. Together with the equally fruitless suit against Trigon, the legal actions have cost the chiropractic profession millions of dollars.

On the face of it, the case sounded reasonable. The ACA sued the Department of Health and Human Services for allowing medical doctors and osteopaths to receive Medicare coverage for manual manipulations of the spine to correct subluxations. The ACA argued -- rightfully -- that chiropractors are the ONLY health care professionals trained and licensed to provide that service and no one else should be paid for them.

But the problem wasn’t an interpretation of the existing law, it was the law itself -- and the legislature, not the court, was the only body able to correct the problem. Instead, despite warnings from many within the profession, the ACA barged ahead with its ill-advised lawsuit and the result is a precedent-setting decision that states:

“Doctors of medicine and osteopaths may perform any service for Medicare beneficiaries as long as that service is performed in the state where they are licensed...  manual manipulations of the spine to correct a subluxation performed by a doctor or osteopath are covered under Medicare Parts B and C.  To decide otherwise invites an absurd result...”

Where the ACA went wrong was to try to change the situation by filing a lawsuit. The WCA -- and the Chiropractic Coalition, tried to tell them that a long time ago, before they continued to pump good money after bad into this failed approach.

Still, because it respects the rights of other groups to make their own mistakes, the Coalition did not overtly oppose the ACA lawsuit and did nothing that would have interfered with or hurt the effort (although it was forced, in all good conscience, to urge doctors to not continue contributing money to the ACA’s “National Chiropractic Legal Action Fund”).

Instead, the Coalition made an independent and positive move and tried to safeguard the exclusivity of subluxation-corrective services through legislation. It introduced and fought for a bill, HR 2560, that would have:

1) Amended the Social Security Act to clarify the scope of chiropractic services that may be furnished under the Medicare program and to state specifically that “chiropractors are the only health care professionals qualified under that program to furnish those services.”

2) Set up a separate provider category just for chiropractic, so we’d no longer be lumped into the same box as medical doctors.

3) Prevented M.D.s and D.O.s from claiming to provide chiropractic services (and get paid for them).

4) Ensured that the “medical necessity” criteria would not apply to chiropractic care. 

The Coalition went out of its way to make sure HR 2560 wouldn’t restrict any DC from practicing the way he or she chooses -- from neuromusculoskeletal to subluxation-based. It permitted DCs to do whatever their state scope laws allowed.

The ACA had long ago made it a policy not to work with other chiropractic organizations on joint legislative actions, so they weren’t part of the HR 2560 effort, but the Coalition felt confident that -- since no DC could be hurt by it -- the ACA would at least show the professional courtesy of not attacking the Coalition’s effort.

That assumption was wrong. They did attack the bill and the organizations that supported it. They went to Washington and contacted key legislators, gave them inaccurate and misleading information about the bill, and spent more of the profession’s money lobbying against the bill. Most observers could only reason the ACA did it because they couldn’t bear the thought of the Coalition actually solving the problem they were spending millions of dollars in court to correct. It also damaged the positive image of the united effort that the Coalition was presenting to Congress. Fortunately, the strong showing at the Coalition’s Joint Legislative Day in Washington demonstrated to our lawmakers that there are still some groups in the profession willing and able to work together in harmony and cooperation.

After the ACA killed the Coalition’s legislation, its own case against Medicare started really falling apart. Now, even the ACA has to recognize that the only way we’re ever going to keep MDs, PTs, DOs and everyone else from getting Medicare reimbursements for “correcting subluxations” is through legislation.

Judge John Garrett Penn stated it clearly when he said: “We believe that a statutory change would be required to define Medicare coverage of manual manipulation of the spine to correct a subluxation as a service that must only be provided by chiropractors. Therefore, if Congress would like to require that manual manipulation of the spine to correct a subluxation must only be provided by a chiropractor, we believe that Congress must amend the statute such that manual manipulation of the spine to correct a subluxation could only be performed by a chiropractor.”

That’s exactly what the Coalition bill would have done. It’s precisely the type of legislation the WCA has been working on for years, including House Concurrent Resolution 46, which stated: “Doctors of chiropractic are the only providers educated and trained to perform chiropractic adjustments to correct vertebral subluxations, and as such, chiropractic adjustments should be provided only by a licensed doctor of chiropractic.”

The ACA opposed that bill as well. In fact, each time any chiropractic organization, including the Coalition, makes progress in Congress, the ACA opposes it and once more gives the legislature the image of a house divided against itself. When will the ACA stop acting like the spoiled child who wants to hoard all the marbles to himself? This isn’t a game, and if we don’t start acting like mature professionals, we’re going to find ourselves being pushed aside by the MDs who are taking their weekend courses in subluxation correction and by PTs who want to start adjusting patients.

In the past, the ACA has proven itself incapable of knowing when to abandon its sinking ships. In the Trigon case, for instance, it pledged to fight all the way to the Supreme Court (no doubt, paying its attorney, George McAndrews, brother of Jerome McAndrews, DC, the ACA's national spokesperson, even more money for that exercise in futility). All the while, it bleeds the profession dry by asking for more and more funds. Why not just hire a drilling company to dig a big hole and throw our checks down it?

Chances are the ACA will do the same in the Medicare issue. Rather than support the Coalition’s Medicare legislation, it will probably attack us again and spend money to lobby Congress to defeat us. In the meantime, it will come up with its own version of the bill and expect the profession to fork over a few more million dollars to pay for their efforts.

I was suckered into giving $10,000 of my own money to the ACA’s legal fund when it first began (what a fool I was to fall for the slogan “Save Our Subluxation”). But now, considering the results of their efforts, and given the fact that the ACA hasn’t even provided a public accounting of how it spent the money, I won’t be conned again.

I hope you won’t be either. As the old saying goes, “Fool me once, shame on you. Fool me twice, shame on me.”