October 2004

Court rules against ACA in HHS case

The U.S. District Court judge has killed, at least for the moment, a lawsuit by the American Chiropractic Association against the Department of Health and Human Services (HHS). ACA, however, is determined to appeal the ruling.

In his Oct. 14 decision, U.S. District Judge John Garrett Penn granted HHS a motion for summary judgment, stating that Congress did not intend for only chiropractors to provide “manual manipulation of the spine to correct a subluxation” when it established the Medicare program in 1972 and that the Medicare statute is “neither silent nor ambiguous” in this regard.

According to ACA officials, the judge’s rationale is “perplexing,” given the fact that the U.S. government admitted ambiguity in the 32-year-old language governing the Medicare program and, according to the government’s own position with the court, that “Congress has not directly spoken to the precise issue of who may provide manual manipulation of the spine to correct a subluxation to Medicare beneficiaries.”

“We have a responsibility to our Medicare patients to continue this fight. They deserve to have chiropractic services delivered by doctors of chiropractic,” said Dr. Donald J. Krippendorf, ACA president. “We believe the use of the term ‘subluxation’ at the time it was inserted in the Medicare statute was meant to assign the correction of the subluxation exclusively to doctors of chiropractic.”

At the crux of the lawsuit is ACA’s contention that HHS guidelines unlawfully allowed Medicare managed-care plans to substitute the services of other healthcare providers for those of chiropractors. The ACA first filed its lawsuit in November 1998.

Specifically challenged in ACA's lawsuit was a 1994 “Operational Policy Letter” stating: “Managed-care plans contracting with Medicare are not required, however, to offer services of chiropractors, but may use other physicians to perform this service. In addition, managed-care plans may offer manual manipulation of the spine as performed by non-physician practitioners, such as physical therapists, if allowed under applicable state law.”

In January 2002, as a direct result of the ACA lawsuit, HHS issued a new policy directive that, under Medicare, physical therapists could not be reimbursed for providing manual manipulation of the spine to correct a subluxation and also added that manual manipulation to correct a subluxation must be provided by Medicare managed-care plans.

In a revision to the 1994 Operational Policy Letter, Medicare's Center for Beneficiary Choices wrote: “The (Medicare) statute specifically references manual manipulation of the spine to correct a subluxation as a physician service. Thus, Medicare+Choice organizations must use physicians, which include chiropractors, to perform this service. They may not use non-physician physical therapists for manual manipulation of the spine to correct a subluxation.”

In addition, the new policy provides: “As a standard of Medicare Part B benefit, manual manipulation of the spine to correct a subluxation must be made available to enrollees in Medicare+Choice plans.” (Updated OPL#23, Jan. 15, 2002.)

The ACA has vowed to take the decision to the next level and has 30 days to file a notice of appeal to the U.S. Court of Appeals for the District of Columbia. Typically, the U.S. Court of Appeals for the District of Columbia makes a decision on cases within 12 months.

Source: American Chiropractic Association, www.amerchiro.org

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