April 2006

Who's looking out for you?

by Dr. Terry A. Rondberg

Several months ago, in a Publisher's Perspective column titled "Are you committing fraud?" I tried to alert readers to the fact that we, as a profession, are the target of a federal investigation that could result in many common chiropractic practices being categorized as fraud. I warned about a growing movement that would make chiropractic ‑‑ particularly subluxation‑centered chiropractic ‑‑ illegal.

Although the column came as a wake‑up call for many of you, some labeled it "scare tactics." They couldn't believe that things are that bad. After all, chiropractic has been covered by Medicare for years and we recently managed to get DCs in the Veterans Affairs health care program (albeit, only with a medical referral). We're making progress, they argued. We're not in any danger.

Well, let me tell you this: we ARE in danger. A clear and present danger. This is not a scare tactic or an over exaggeration. We are facing a crisis and if we don't take it seriously, we could very well see the very nature of chiropractic radically changed within the next few years to the point where you won't even recognize our profession as chiropractic.

I just spent the last week in Washington, DC, talking to several people in Congress, as well as high‑powered government officials in a number of key federal agencies. Some of them would speak only "off the record" but the news was uniformly bad. There is definitely an undercurrent of anti‑chiropractic sentiment, possibly a reaction to the perceived gains we have been making.

According to FBI Supervisory Special Agent Stuart B. Silver and Special Agent John T. Bestor, more than 450 special agents of the FBI are dedicated to the investigation of health care fraud. A large portion of the FBI's increased budget has been dedicated to health care fraud investigations, including chiropractic fraud (according to the "Health Care Fraud and Abuse Control Program" annual report for 2002 by the Department of Health and Human Services and The Department of Justice).

The campaign is to deliver chiropractic a one‑two punch.

First, the target will be to limit the scope of chiropractic to "treatments" for only those musculoskeletal conditions which have been found to respond to chiropractic in published research journals. While this may sound reasonable, insisting on such evidence at this time is stacking the deck against us.

As stated by Dr. Jennifer R. Jamison in her paper "Acceptance and Identity: The Conundrum of Contemporary Chiropractic," published in the Chiropractic Journal of Australia, "A plausible rationale used to functionally limit, if not exclude, chiropractic from participation in conventional health care is the paucity of scientifically acceptable evidence to support the clinical practice of these practitioners." Yet, as she adds, "The most respected type of scientific evidence in health care is based largely upon the assumptions of the mechanistic paradigm and quantitative research methodology ‑‑ neither of which is necessarily conducive to good chiropractic practice."

Medical research has failed to look objectively at chiropractic's benefits and the federal government has refused to fund chiropractic research to any significant level. Research conducted by chiropractors into the impact of the vertebral subluxation complex has been either ignored or ridiculed (even by some within the profession.) Yet, our opponents will point to our lack of research evidence as a justification to limit or exclude chiropractic from the health care arena by labeling as "health care fraud" any practice which cannot be substantiated by existing research.

This will include providing chiropractic for children (already labeled as "experimental" by many insurance companies), adjusting asymptomatic patients, wellness or preventive care, maintaining that vertebral subluxation is an appropriate primary diagnosis, using any chiropractic device or technique that is not judged "acceptable" by approved guidelines, or even teaching patients about the detrimental effect of subluxation on health and wellness.

The second "punch" to chiropractic is to severely curtail the number of visits deemed "appropriate" for these cases.

In 1999, the US Inspector General recommended automatic review after no more than 12 visits for Medicare recipients. In 2005, the IG's report was even more critical of chiropractic. It claimed that chiropractors had over‑billed Medicare by nearly $285 million. "The need for a more effective way to eliminate inappropriate maintenance payments is crucial," the report said.

A June 2005 HHS Office of Inspector General report, "Chiropractic Services in the Medicare Program: Payment Vulnerability Analysis," made the observation that "lack of medical necessity is directly related to service volume," but added this comment on what the federal government views as "medically unnecessary" services:

"When chiropractic care extends beyond 12 visits, it becomes increasingly likely that individual services are medically unnecessary. Services provided among the first 12 [visits] in a course of treatment to a particular beneficiary by the same chiropractor were approximately 50 percent likely to be medically unnecessary. That likelihood increased to approximately 67 percent for services between the 13th and 24th and to 100 percent for services beyond the 24th."

No one knows for sure where they got those seemingly arbitrary figures, although they may be based on the 15‑year‑old RAND Corporation document that stated "an adequate trial of spinal manipulation is a course of two weeks for each of two different types of spinal manipulation (four weeks total), after which, in the absence of documented improvement, spinal manipulation is no longer indicated." A favorable response to manipulation is defined by RAND as "an improvement in symptoms." Objective functional and quality of life assessments are not the basis for treatment.

The same type of numbers game is being played at the state level. In 2003, a bill was introduced into the California legislature that called for limiting chiropractic care without special authorization to 15 visits per claim. Although it was defeated, another bill ‑‑ California Senate Bill 228 ‑‑ was passed a year later. That bill limits chiropractic care to 24 visits. Last year, Massachusetts Gov. Mitt Romney filed an auto insurance reform bill that would limit patients to 10 chiropractic visits following an automotive accident.

Even Medicare appears to be joining in the assault against chiropractic. According to Medicare expert Jeffrey Shay, DC, whose special report appears in this issue of The Chiropractic Journal, "It appears that regional Medicare carriers have been conducting an unprecedented number of records audits on chiropractors recently, involving at least five states. This level of records audits and fines appears to be highly unusual. ... There appears to be an agenda. Medicare is using these audits as a source for easy funds, as well as controlling chiropractic visits at a low level. The doctors chosen seem to be relatively high in utilization, but that may not always be the case. The audit standards seem to target subluxation‑based chiropractors." Dr. Shay notes that fines ranging from $93,000 to $131,000 are becoming commonplace. Can you pay that much if Medicare says you have committed "fraud" for having a higher visit profile than average?

Last month, the Association of New Jersey Chiropractors sent out an urgent e‑mail titled "Be Concerned, Very Concerned" that warned of doctors being hit with post‑payment reviews going back six years with payment demands in excess of $1,000,000 in addition to loss of license and possible jail time. It went on to say that "medically unnecessary treatment can constitute fraud under state and federal law."

Still think I was using scare tactics in my column? Then take a look at this list of actual cases brought before chiropractic boards:

*** A California doctor was brought before the state board for explaining, in his ads, that he does not treat or cure diseases but, instead, addresses the problem of subluxation.

*** In Colorado, the board accused a DC of failing to include the patient's vital signs and symptoms in his records and failing to provide written informed consent."

*** The chiropractic regulating board in New York State issued a statement saying that giving chiropractic adjustments to asymptomatic persons is "misconduct which goes to the heart of the profession."

*** The Arizona Board filed a complaint against a doctor for using "scare tactics" and "making a misleading or false statement to a patient." His crime was explaining that subluxations could be detrimental to health.

***  A Maryland DC was subjected to a board complaint that he hadn't performed "orthopedic or neurologic tests" and limited his practice to upper cervical adjustments.

*** A chiropractor who uses Chiropractic Biophysics Technique was investigated by the Illinois Disciplinary Board for offering a one‑year chiropractic contract for services.

*** The New York State Board for Chiropractic slapped a DC with a suspension, a $7,000 fine, and mandatory community service, after he urged a patient to get chiropractic help for her nine‑year old son, who showed signs of possible scoliosis.

As bad as all of this is, it gets worse.

Aiding and abetting the anti‑chiropractic forces in the federal government are chiropractors who agree that we can create and safeguard our "niche" by establishing an identity as back pain specialists.

That was exactly what several well‑known chiropractic researchers said last year in an article published in Chiropractic & Osteopathy ("Chiropractic as spine care: a model for the profession," Craig F Nelson, Dana J Lawrence, John J Train, Girt Branford, Stephen M Parle, R Douglas Metz, Kurt Hegetschweiler and Thomas LaBrot, Chiropractic & Osteopathy, 2005, 13:9).

They stated: "Over the past several decades, a substantial body of evidence has accumulated to inform decision‑making on the value of chiropractic manipulation for low back, neck and headache complaints."

They concluded: "We argue that chiropractic's identity is as a provider of spine care. We argue further that such a model is consistent with the best available scientific evidence...."

They also noted that our college system is playing into the government's hands by teaching a narrow view of chiropractic: "We already have concluded that the de facto model being taught at chiropractic colleges is that of a back pain specialist (their proclamations of primary care, notwithstanding)."

The colleges have handed control of their mission and their curriculum to the Council on Chiropractic Education (CCE), despite that agency's blatant misuse of power. In issuing a temporary injunction against the CCE, Senior District Judge Charles E. Moye, referring to musculoskeletal practitioners as "liberal," wrote: "...an aggressive group of leaders of the eight liberal chiropractic schools, who had only one‑third of the chiropractic students, had undertaken a series of corporate manipulations...calculated to give dominance to the liberal minority...action which would violate the antitrust laws if incorporated in an accreditation procedure..."

What will it take to convince you that your profession is in trouble, that your practice is in danger? Are you going to wait until you get hit with insurance claims rejections for performing "experimental" procedures on children? Will you wait until Medicare starts looking over all your claims for the last six years and decides you owe them half a million dollars or more? Will you wait until your license is suspended for failing to perform a series of medical neurological tests on each patient?

Don't wait until it's too late. Join the World Chiropractic Alliance and fight back with aggressive lobbying, massive public education, and massive research gathering.

One valuable way to join the movement to save chiropractic is to attend the WCA International Summit in Washington, May 4‑5. There, you'll learn more about the growing problem from dozens of top chiropractic leaders, including Drs. Christopher Kent, Matthew McCoy, Patrick Gentempo, Dennis Nikitow, CJ Mertz, Tony Palermo, Eric Plasker, Mike Reid, David Jackson, Ed Plentz, Kevin Pallis, Jay Holder, and Brian Stenzler. Best of all, you'll find out what action you can take right now, in your own office, to be part of the solution. Call the WCA today at 800‑347‑1011 to register.