December 2005

ACA’s HHS lawsuit continues

The U.S. Court of Appeals has reversed a lower court decision allowing medical doctors and osteopaths to perform “manual manipulation of the spine to correct a subluxation” on Medicare beneficiaries, paving the way for chiropractors to pursue further hearings on the issue under a new administrative review process enacted in 2003. The Dec. 13 decision represents a major step in the American Chiropractic Association’s (ACA) landmark lawsuit against the U.S. Department of Health and Human Services (HHS) and comes at a critical time as millions of Medicare patients are choosing Medicare managed care plans as part of their new prescription drug benefit.

In its Dec. 13 opinion, a three-judge appeals panel overturned an Oct. 14, 2004, District Court ruling that stated: “The court will simply reiterate its conclusion that 42 U.S.C. 1395x(r) does not prevent doctors of medicine and osteopaths from performing a ‘manual manipulation of the spine to correct a subluxation.’”

The appeals panel ruled that the District Court lacked the jurisdiction to make this decision and that the final decision must be made through a newly revised appeals process. Through this process, individual chiropractors file complaints on behalf of their Medicare patients through the managed care organization. From there, complaints move to an administrative law judge.

The appeals panel further questioned the District Court’s opinion on the issue of which healthcare providers are qualified to provide the chiropractic service — not simply which providers have a license to do so. “The regulation states that ‘[I]f more than one type of practitioner is qualified to furnish a particular service, the HMO ... may select the type of practitioner to be used.’

The HMO’s invocation of this provision would squarely present the question of whether medical doctors and osteopaths, as well as chiropractors, are ‘qualified to furnish’ the service of manual manipulation of the spine to correct a subluxation.” According to ACA’s legal team, this language suggests that simply possessing a medical or osteopathic license will not be sufficient to provide the chiropractic service; the MD or osteopath must prove that they are qualified to do so by education and training.

The ACA is exploring ways it can assist individual doctors of chiropractic through the administrative review process and provide them with the resources and materials they need to establish their unique qualifications to an administrative law judge, if necessary.

Other victories that occurred as a direct result of the HHS lawsuit were:

• The preparation and release of a government study showing the virtual elimination of chiropractic services to Medicare beneficiaries entering the Medicare Managed Care system where there is a medical doctor gatekeeper requirement; and

• A government mandate that all Medicare managed-care plans must make available and pay for manual manipulation of the spine to correct a subluxation.

A copy of the Dec. 13 decision, additional information on Medicare managed care plans, and resources on the Medicare administrative review process, are available at: www.acatoday.com/government/medicare.

Source: American Chiropractic Association, www.amerchiro.org

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