It is All About Scope

Keynote Address By David Herd DC, ACA Vice President at the NYSCA 2015 Spring Convention at Mohegan Sun

I want to thank Lou and Jim and the rest of the board for the invitation to speak at today's luncheon. It is an honor and a privilege to represent the American Chiropractic Association at meetings like this across the country.

The American Chiropractic Association is the only democratically representative full-service national chiropractic Association representing the chiropractic industry in Washington DC. There are presently 452 voting ACA members in New York State.

NYSCA and ACA have a direct affiliation which leads to close consultation and effective unified actions on both state and federal issues. The ACA wants to thank NYSCA for being such a strong partner in working towards increased utilization, reimbursement parity and maintenance of clinical authority that will protect our ability to manage our patients as physician level providers.

We stand at a cross-roads…

We stand at a crossroads facing a new national health care system where the delivery of services will be data and quality driven. The triple aim of the new healthcare system can be simply stated as better outcomes, lower cost, and the highest levels of patient satisfaction.

The chiropractic profession is uniquely positioned to excel on meeting these benchmarks. We merely need to decide if we will progress and fully integrate into the new 21st-century market models or stagnate as a profession by clinging to dated models of clinical chiropractic practice.


The ACA hosted its largest and most successful national chiropractic leadership conference two weeks ago.

We had 681 attendees of which 280 were chiropractic students from colleges across the country. We made 270 visits to congressional offices seeking cosponsors for bills to expand chiropractic access in the VA, expand the National Health Service Corps to include chiropractic physicians and to provide chiropractic coverage for all tri-care beneficiaries. We also held our annual ACA business meeting and ran three days of educational symposiums.

Wilk vs. AMA,

The highlight of the House of Delegates plenary sessions was the delivery of the first Annual McAndrews Leadership Lecture by Scott Haldeman, DC, MD, PhD. George McAndrews the plaintiff’s attorney in the famed Wilk vs AMA, Case, now 80 years old and in excellent health, was in attendance. He was excited not only by the recognition given to his family by starting McAndrews leadership lecture series but also by a critically important Supreme Court decision handed down on February 25th.  The North Carolina State Board of Dental Examiners versus the Federal Trade Commission. Mr. McAndrews stated that the effects of this decision should prove to be more important over time than the findings of the Wilk suit.

Following the Wilk decision the AMA and other defendants were barred from openly discriminating against doctors of chiropractic and medical physicians who associated with them. The AMA then took on a new strategy of attacking the chiropractic profession and dominating the medical marketplace through legislative advocacy and aggressive state medical board activity. Both of these activities were considered the exercise of free speech shielded in the political process.

The North Carolina State Dental Board decision should put an end to the anti-competitive action of all state licensing boards across the country. The makeup of licensing boards will most likely face revision. The court found that a state may not give private market participants unsupervised authority to suppress competition even if they act through a formally designated state agency.

The case originally came about because members of the dental profession were complaining to the state board in North Carolina that big box stores were opening teeth whitening kiosks which provided teeth whitening services for 50% of what dental offices were charging. The state dental board ruled that the big box stores were practicing dentistry illegally and moved to shut down the kiosks.  50 stores in the state of North Carolina had their tooth whitening kiosks shut down and the FTC ruled in 2011 that this was banned anti-competitive activity. The case made its way to the Supreme Court which ruled on February 25th.

According to Mr. McAndrews, one of the key components of this ruling is that state boards will no longer be allowed to be dominated by private market participants from the market they supervise. State boards across the country will no longer able to be made up entirely of all doctors of chiropractic, medical physicians, or dentists. There will be increased participation by uninterested third parties and laypeople. There will also be greater involvement by state regulators.

It will be interesting to see how this decision impacts state boards here in New York which are much more directly supervised through the education department than boards throughout the rest of the country. It should however end much of the anticompetitive coordinated activity we see across the country such as medical boards claiming chiropractors cannot perform a diagnosis. This is an important decision which should help level the playing ground in the years to come. There is one major potential downfall with this decision here in New York and in states with similar scope laws and that is that we have a very limited scope of practice act and much of what we are allowed to do exists in regulations and decisions of the state board. It is time to improve our state scope of practice act to eliminate the possibility that changes in board function or structure can negatively affect our ability to provide necessary services to our patients.

Scope & Medicare

Now I would like to turn your attention to Medicare. You will see again that state scope of practice is critical in addressing the abuses our profession has experienced in the Medicare system.

Two weeks ago the American Chiropractic Association’s House of Delegates voted to make amending the basic enabling language in the Social Security Act, which the Medicare program falls under, our number one legislative priority. The ACA House of Delegates believes that we must unite with the rest of the profession to end the 50 years of discriminatory practices this profession has experienced under the Medicare system. Our profession has spent millions of dollars since 2008 securing our place in Obamacare and working for regulatory change under Medicare.

I am pleased to say that §2706, the provider non-discrimination provision of the Affordable Care Act is poised to protect this profession and our patients across the country, but there is still work to be done. CMS however, has been unable to grant us regulatory relief under Medicare for one simple reason: the basic enabling language in the Social Security Act, specifically §1861(r) defines us as a single service profession, spinal manipulation to correct a subluxation.

Last year we directed our attorney to review all federal statutes pertaining to chiropractic care. He turned up approximately 200 pages of federal regulations referencing chiropractic services. The vast majority of those references limit chiropractic to the single service of manual manipulation to correct a subluxation. The reason for this is they reference the basic enabling language for chiropractic care under Medicare in the Social Security Act, §1861(r). All other provider groups, medical physicians, osteopaths, dentists, etc. are designated as physicians under Medicare when they provide all the services allowed under their state scope of practice. Doctors of chiropractic are also defined as physicians under §1861(r) but, and I quote, “only with respect to treatment by means of manual manipulation of the spine (to correct a subluxation) which he is legally authorized to perform by the State or jurisdiction in which such treatment is provided”.

Just take a quick look in the vendor display area here and you’ll see that there are so many other procedures we are trained and licensed to use in treating our patients.

This single service definition is not the only way in which we are discriminated against in Medicare, but it is the root cause.

  • We are the only physician level provider that is unable to opt out of the system
  • We are unable to provide supportive care for our patients.
  • We are the wellness experts and yet we are not allowed to provide the mandated Medicare wellness visit, called for under the Affordable Care Act.
  • We are subject to Byzantine documentation standards
  • Our patients are obligated to pay for examinations out of pocket
  • We cannot order imaging or other diagnostic studies on our patients

All of this at reimbursement rates no other profession would accept. In the last few years, §2706 has become part of the chiropractic vernacular, in the coming years this profession will become just as familiar with §1861(r).

It is time to amend the basic enabling language in the Social Security act §1861(r) to allow reimbursement for our full scope of services under our state licenses. Our patients deserve nothing less.

So how do we get there?

First and foremost we must address our billing error rate under Medicare which is the highest of any provider group. The ACA has taken the lead in addressing this issue because if we cannot start to bill correctly for a single service there is no way, they will let us provide more services. Some of you know NGS had exceptionally high billing errors originating from two areas around New York City.

NYSCA, ACA, and NGS partnered on an educational program to explain the requirements for Medicare documentation to practitioners in those areas. It was very positive experience for NGS which has led to greater communication and collaborative efforts between the ACA and NGS. In fact NGS has not only invited the ACA experts to participate in similar educational programs, including Connecticut, but requested assistance in the training chiropractic documentation requirements to their medical reviewers.

In addition to the successful ACA efforts with NGS the ACA Medicare experts were invited to Palmetto GBA and Railroad Medicare to work with their senior management and claims examiners related to chiropractic documentation requirements. Again we were well received.

NCLC Medicare Meeting

As a result of several years of continual ACA efforts, a special meeting was arranged and held two weeks ago at NCLC between every regional Medicare contractor, the two CMS officials directly involved in oversight of chiropractic claims and the Medicare team from ACA. It was a remarkable historic meeting with everyone agreeing to work together to formulate easier to understand chiropractic Medicare documentation standards which will be made uniform across the country.

At the end of the day the ACA was asked to formalize the standards develop sample notes based on the standards and present the material back to the same working group. Once these new nationwide standards are in place and our practioners come into compliance, our error rates and our relationship with the Medicare contractors and CMS will radically improve. This is a critically important step in working for scope change under Medicare. It is also important because of the Protecting the Integrity of Medicare Act or PIMA bill passed on February 26th by the House Ways and Means Committee which looks to recoup $67million from chiropractic physicians over the next 10 years based on the billing error rates from the 2005 OIG report. This is what is called a Pay for Bill where Congress hopes to recoup money from one party to pay for expenditures in other areas. This bill looks to raise $300 million total to pay for new Social Security cards for everyone in the country, which will not have the Social Security number printed on them.

There were two medically related groups in the initially proposed bill, the erectile dysfunction device manufacturers and doctors of chiropractic. The biggest slap in the face was that in the final bill which passed out of committee only the doctors of chiropractic remained. I guess they were more aroused by sticking it to us.

In the bills present form penalties will not kick in until one year after CMS develops and implements a documentation education program with the profession. We do not know what will happen to the bill in the Senate but we are watching closely. It will most likely be attached to the SGR correction bill for 2015.

Medicare will play a bigger and bigger role in the delivery of healthcare in the future, not only as the population ages but also because so many payment systems will follow the Medicare model which is moving rapidly to pay for performance. CMS has projected that 30% of reimbursement will be based on performance and quality in 2016 and over 50% by 2018. This will be accomplished by pushing patients into ACO’s and Patient Centered Medical Homes.

You will be hearing much more about our Medicare initiatives in the coming months and it will be a multiyear battle. Please join the fight. Stand up for fair and equal treatment. The ACA needs your help. Join us and stand with the 9000 ACA members to end our abysmal treatment under Medicare. We are at a crossroads. Do we chose to claim our rightful place of full inclusion and payment parity in the evolving healthcare system or do we chose to retreat into cash payments and the realm of alternative treatment leaving the PT’s or others to own our market? If not us, who? If not now, when? Please join the fight.


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