Issue 5 - April 2003

SOS

Chiropractic in distress!
The Wilk case lasted 14 years, cost millions but won medical recognition. The stakes – and costs – are even higher this go around
By Linda Segall

SOS. It’s the universal signal for distress.
And SOS – Save Our Subluxation – is the call to arms that the American Chiropractic Association is using to rally all doctors of chiropractic in support of two lawsuits it has filed in federal district courts.

“We’re fighting an economic boycott against us,” states James Edwards, DC, chairman of the ACA. “Our opponents are imposing discriminatory economic policies and arbitrary federal regulations that are contrary to the intent of Congress. The result is substantial losses in revenue for chiropractors and millions of patients who are denied access to our care. Their intentions are clear. Insurers and regulators, working under the direction of medical physicians, are trying to squeeze us out of the healthcare system.”

This isn’t the first time “squeezing out” has been attempted. In the landmark Wilk v. the American Medical Association, Chester A. Wilk, DC, and several other chiropractors brought suit against the AMA and ten other medical establishments. The reason? Anti-trust – “squeezing out.”

Wilk won. It took 14 years, millions of dollars and the leadership of a dedicated attorney. But in the end, the judge ruled in Wilk’s favor: Chiropractors weren’t “quacks” despite the AMA’s preaching to its constituents, and the AMA had to make amends by declaring to its members that it was ethical for medical doctors to associate professionally with doctors of chiropractic.

Ironically, the Wilk victory may have contributed to the current lawsuits the ACA is waging on behalf of all chiropractic. According to George McAndrews, the tenacious attorney who won the Wilk case and is leading the battle in the two lawsuits – one against the federal government and the other against Blue Cross/Trigon (Anthem) Insurance, chiropractic “exploded” after the AMA allowed its members to associate with chiropractors.

“Up until that time it was like dealing with a leper,” he said. “After the injunction – which still exists – the battle turned to money. After declaring chiropractic to be a bastard child and then seeing it grow up to be an Einstein, everyone has tried to claim it as its own,” he says.

McAndrews continues his explanation: “They all claim that [chiropractic is] part of the core of the universal practice of medicine. And physical therapists, who have never been trained like doctors of chiropractic, are now asserting the right to manually correct subluxations. Even osteopaths, who have never used subluxation, claim to be chiropractors at heart. Everyone wants a piece of the action.”

Medicare: Access to chiropractors
Money is at the heart of the two lawsuits. McAndrews says that in 1994 the Agency for Health Care Policy and Research (AHCPR) – a government agency – issued back-pain guidance, “stating that traditional medical care was a waste of time and dangerous and that the only type of care that was safe was administered by chiropractors.”

“Within six days after the paper was published,” says McAndrews, “The HCFA [part of HHS] issued an illegal policy letter stating that physical therapists and medical physicians and osteopaths were authorized to deliver chiropractic service to correct subluxation. The policy was illegal for two reasons: It was issued without notice and without hearing. And it included physical therapists, who are not physicians under Medicare regulations. The medical community was afraid that chiropractic would empty their offices,” states McAndrews.

Because most managed-care organizations follow Medicare guidelines, the impact of a Medicare policy has long-reaching economic effects on chiropractic, primarily concerning the ability of patients to have access to chiropractors.

The ACA filed the Medicare lawsuit in November 1998 to protect patients’ rights to receive chiropractic care. The lawsuit is pending, but because of it, the government has rescinded its authorization for physical therapists to correct subluxations. It has also issued a policy directive that “manual manipulation of the spine to correct a subluxation” must be made available to Medicare beneficiaries in all Medicare/managed care organi-zations and Medicare+Choice plans.

Trigon: discriminatory payment schedules
The Blue Cross/Trigon (Anthem) lawsuit is about money, too – specifically about discriminatory payment schedules. McAndrews explains: “In 2000, the ACA and the Virginia Chiropractic Association sued Blue Cross/Trigon (later purchased by Anthem), because it had a policy to pay chiropractors 40 percent less than it paid medical physicians for precisely the same service, placed a $500 cap on manual manipulations of the spine and encouraged the utilization of physical therapists in place of chiropractors.”

Winning the Trigon case will mean a 40 percent increase in reimbursements to doctors affected by the case, says Daryl Wills, DC, ACA president.

“Trigon (Anthem) is an extremely powerful insurer which influences policy decisions nationwide,” says Edwards. “A victory in these suits could mean parity reimbursement for DCs everywhere – quite literally 40 percent more revenue – and an influx of new patients.”

The Trigon lawsuit is already seeing results. Chiropractic patients are now enjoying a first time, chiropractic manipulation benefit under the “basic option” of the Blue Cross Blue Shield Federal plan. The ACA believes that this coverage could lead to broader coverage in the future. Also the ACA and the national Blue Cross/Blue Shield Association (BC/BSA) have initiated an unprecedented “Blue Chips” review process whereby state issues and problems can be addressed with the input of both the ACA and BC/BSA. … All of this is a direct result of our settlement with Blue Cross/Blue Shield of America in the Trigon litigation,” says Garrett Cuneo, ACA executive vice president.

But what if the ACA loses?
“The insurance companies will continue to do more discriminatory things,” says Wills. Edwards concurs: “Defeat would open the door for even more economic abuse, and close the door on even more patients who need our care.”

Both lawsuits are far from over. McAndrews says that it will be years before the final decisions are made. “There have been motions filed by the government [in the HHS case] to dismiss the remaining portions of the suit where we haven’t been victorious. The motion has been pending for over a year in Washington.”

And in the Trigon case, McAndrews says “the original trial date was November 13, 2002. But after being presented with 30 lineal inches of motions, exhibits and depositions, the U.S. district court judge took the case off the calendar, heard oral arguments on the motions and informed the parties he would study all of the pleadings and papers filed and would in due course render an opinion. He could issue it any day.”

To make a pledge to the National Chiropractic Legal Action Fund, go to www.chiroeco.com/sos, where you will be able to download a pledge form.

Linda Segall is editor of Chiropractic Economics.