December 2004

ACA loses Medicare case

On Oct. 14, 2004, U.S. District Judge John Garrett Penn granted a motion for summary judgment against the American Chiropractic Association (ACA) in its case against the Department of Health and Human Services (HHS).

In his decision, Penn declared that when Medicare program was established in 1972, it was not Congress' intention to make chiropractors the only provider responsible for "manual manipulation of the spine to correct a subluxation." He stated that the Medicare statute is "neither silent nor ambiguous" in this regard.

In addition, the decision noted that chiropractors have no exclusivity over the term subluxation. "The Court cannot agree, however, that the simple fact that the terminology used by Congress in the statute originated with chiropractors necessarily means that Congress intended to foreclose all other medical practitioners from adopting that language and the procedure it connotes for purposes of Medicare," Penn noted.

The decision was based in part on the fact that, as of 1972, chiropractors have been lumped together with all other "physicians" under the Medicare system.

Under the Medicare rules, "manual manipulation of the spine to correct subluxation" is a "physician service" to be performed by a "physician." The physician category includes doctors of medicine, doctors of osteopathy, and chiropractors. Therefore, all are permitted to provide ‑‑ and be reimbursed for ‑‑ subluxation corrective services.

In 2003, the World Chiropractic Alliance, as part of the Chiropractic Coalition (along with the International Chiropractors Association and the Federation of Straight Chiropractors and Organizations) supported HR 2560, the Chiropractic Medicare Freedom Bill, which would have placed chiropractors in a special category, separate from MDs and DOs. The reclassification would have helped set DCs apart as a separate and unique provider, with exclusive jurisdiction over subluxation correction. However, vigorous lobbying against the bill by the ACA prevented its passage.

Now, with the ruling by Judge Penn, the profession is in a worse situation than it was before. First, the case opens the door for MDs and DOs to be reimbursed for subluxation correction. Second, and possibly more damaging, the ACA's voluntary dismissal of the claim against physical therapists strengthens the case for PTs to do the same.

As part of its ill‑advised strategy, the ACA dismissed Count II of the lawsuit, which argued that physical therapists could not perform manual manipulation of the spine as a Medicare‑covered service.

According to a report in the American Physical Therapy Association's PT Bulletin Online, "Because the ACA voluntarily withdrew Count II and the HHS interpreted OPL #23 in a manner clearly affirming that physical therapists can provide and receive Medicare reimbursement for manipulative treatment of the spine (as long as this service is within the scope of the state license), APTA determined that the threat to physical therapist performance of manipulation under Medicare was removed."

OPL #23 (Operational Policy Letter) was written on January 15, 2002, and declared that "manipulation of the spine (to correct a subluxation)" is a physician service that can be provided only by physicians. It also stated that Medicare+Choice organizations "may continue to use physical therapists to treat enrollees for conditions not requiring physician services as defined in section 1861 (r) of the Social Security Act."

According to the APTA's bulletin: "In its briefs, which the government said were consistent with the OPL, the government stated that 'a physical therapist may provide, and be reimbursed by Medicare for, the service of manipulative treatment of the spine as long as that service is appropriate and within the scope of the physical therapist's license.'"

Ironically, in its original complaint, the ACA argued that the phrase "manual manipulation of the spine to correct a subluxation" is a "term of art unique to the chiropractic profession."

For years, a major complaint against the ACA has been its reluctance to use the term "subluxation." In most of its press releases, it fails to mention the word and focuses, instead, on low back pain topics.

For instance, its Oct. 5, 2004 press release titled, "October Is Spinal Health Month," lists "tips to help prevent back injuries" and does not refer to subluxations. In fact, throughout all 24 press releases distributed in 2004 (as posted in the ACA website's "Press Room") ‑‑ on topics ranging from backpack safety to ear infections ‑‑ there wasn't a single reference to the word subluxation.

"The ACA marketed its lawsuits as a 'Save Our Subluxation' campaign," said Terry A. Rondberg, DC, president of the World Chiropractic Alliance. "What are they saving it for? They're not using it, not educating the public about it, and not promoting understanding of it. And when other organizations try to take constructive measures that will protect our unique identity, they fight us. What kind of sense does that make?"

Despite already spending an estimated $5‑7 million on the failed Trigon and Medicare lawsuits, the ACA said it will appeal the HHS case. The appeal will no doubt cost even more money, most of which will go for legal expenses ‑‑ to be paid to the law firm McAndrews, Held & Malloy, whose founder and senior partner is attorney George McAndrews, brother of Jerome McAndrews, DC, the ACA's national spokesperson.

In the meantime, the Chiropractic Coalition is discussing the possibility of resubmitting a Medicare reform bill that will solve many problems, including recognizing chiropractors' unique position in the health care field, and securing reimbursement for X‑rays.