Ask the attorney
Is boycotting an MCO legal?
By Steven Conway DC, DACBOH, Esq.

I actually have two questions concerning dealing with managed care organizations (MCOs): Large medical groups seem to be able to negotiate better deals with managed care organizations than I, a solo practitioner, can. Can I organize the local chiropractors in my area to work together for MCOs to give us better contract terms, or else we won’t sign?

My second question concerns what I consider the unfair utilization review process of MCOs. One company, in particular, has limited me to an average of six visits per patient. They threaten to terminate my contract if I don’t comply. What can I do?

The frustration you are experiencing is not unique. Chiropractors around the United States are basically provided a “take it or leave it” option when negotiating with an MCO.

While this may not seem fair, you still have to work within the rules and regulations when negotiating, otherwise you could end up with legal actions against you.

The medical groups that you reference are probably formed as a legal corporate structure, which would allow that one “entity” to negotiate for the various medical employees.

However, the majority of chiropractic offices are owned by individual doctors who are incorporated as an LLC, SC or PC. If these individual doctors get together, as you suggest, to discuss actions leading to what could be considered a boycott — that is, all of you refuse to sign a contract unless your terms are met — the MCO could report you and the other doctors to the Department of Justice and Federal Trade commission. The law prohibits individual chiropractors from meeting to discuss the pricing of services, negotiation strategy for better terms from the MCO, or potential boycotts.

Although you may not believe that the government would investigate a small group of chiropractors, this very action happened in Wisconsin against individual chiropractors, the chiropractic state association, and its executive director.*

If you want to organize, first consult with a local attorney familiar with or specializing in health law to discuss your options. You may be able to properly create a legal entity to achieve the goals you search for in fair negotiations.

To answer your second question, many doctors have complained about the increase of paperwork and the rise of denied claims. MCOs contend that utilization review is necessary to provide or maintain a standard of care for patients — basically a check and balance system of the provider’s treatment procedures.

Those doctors who are on either end of the treatment number bell curve tend to have more scrutiny than those right in the middle.

However, discrimination or bias can occur in this process, with the result that doctors within the proper standard of care get unfair reviews and improper decisions against them.

A good example is the one that you described in your question. Many doctors have complained that a national MCO is specifically targeting doctors of chiropractic to be within a very limited range of patient treatments regardless of the type of caseload or documentation provided. Doctors who do not “conform” are terminated from the plan.

It is difficult for individuals to fight back with the threat of being terminated hanging over their heads. In these cases, my recommendation would be to document your case thoroughly, make sure you follow all HIPAA laws, and send the information to your state association and/or state board of examiners as well as to your national chiropractic association.

This specific type of unfair utilization review could trigger an investigation of the MCO for potential violation of state insurance laws as well as endangerment to the public.

You have ways to fight for your rights legally. Do not choose illegal paths that may seem at first to be a more simple solution to your problem. They will end up very complicated, with potentially devastating results to your reputation, practice and family.

*Federal Trade Commission, “In the Matter of The Wisconsin Chiropractic Association, and Russell A. Leonard,” File No. 971 0117, Docket No. C-3943, www.ftc.gov/os/caselist/c3943.htm

Steven Conway, DC, DACBOH, Esq, is a partner in True North Chiropractic Consultants LLC, providing guidance and ethical solutions to the barriers found in chiropractic practices. He can be contacted through his Web site www.truenorthchiropracticconsultants.com or by e-mail at chirolaw@aol.com.

Disclaimer: DISCLAIMER: This column is provided for educational purposes only. The accuracy or timeliness of the information presented is not warranted. The information is not presented as legal advice and no attorney-client relationship is established.