Appeals Court Overturns Adverse District Court Ruling; The Fight Continues

ACA’s HHS Lawsuit Continues to Reap Benefits for Chiropractic Profession (Arlington, Va. - Dec. 14, 2005) 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. “The ACA is extremely pleased that the District Court’s ruling allowing M.D.s and D.O.s to provide a uniquely chiropractic service was nullified,” announced ACA President Richard Brassard, DC. “We are happy that the issue is now whether or not a practitioner is ‘qualified,’ not whether or not a practitioner is simply licensed. The ACA’s position has been and remains that only chiropractors are qualified by education and training to correct subluxations. Because of the appeals court’s decision, chiropractors can continue to fight to safeguard their right to be the sole providers of this service and to ensure Medicare patients’ rights to access doctors of chiropractic.” 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 health care 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.’ ... (emphasis added). 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 appeals court decision is especially significant as seniors are being encouraged to join Medicare managed care programs in which they will find no meaningful chiropractic services,” added Dr. Brassard. “Doctors of chiropractic nationwide must familiarize themselves with the new appeals process and report on any Medicare HMO that does not offer chiropractic services through doctors of chiropractic.” 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. Earlier court rulings in ACA’s lawsuit against HHS, filed in 1998, have also resulted in “monumental victories for Medicare patients,” according to Dr. Brassard – the most important being the decision prohibiting physical therapists from providing manual manipulation of the spine to correct a subluxation to Medicare patients. “Before ACA filed its lawsuit,” Dr. Brassard explained, “Medicare HMOs were given the green light to misappropriate taxpayer dollars to pay non-physician physical therapists to deliver the chiropractic physician service of 'manual manipulation of the spine to correct a subluxation’ under Medicare – or to deny the service to beneficiaries altogether. That unfair and illegal practice has ended as a direct result of our lawsuit.” 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. “The ACA and the National Chiropractic Legal Action Fund (NCLAF) thank the thousands of supporters and contributors who have stood with us through this monumental legal battle,” said Dr. Brassard. “Because of your commitment, we will continue to work together to ensure that Medicare beneficiaries receive the safe and effective chiropractic care they need and deserve.” For a copy of the Dec. 13 decision, additional information on Medicare managed care plans, and resources on the Medicare administrative review process, visit ACA’s Web site at: