Confessions of a Quackbuster

This blog deals with healthcare consumer protection, and is therefore about quackery, healthfraud, chiropractic, and other forms of so-Called "Alternative" Medicine (sCAM).

Thursday, December 15, 2005

Appeals Court Overturns Adverse District Court Ruling in American Chiropractic Association Lawsuit against HHS

The chiropractic juggernaut crashes ahead, moving the profession away from reform, and cementing its position as a pseudoscientific, biotheological business enterprise, all the while pretending to be a healthcare profession.




Chiropractic is to science, what Scientology is to religion.
It is just as much a pseudoscience, as Scientology is a pseudoreligion.


The following is a press release from the American Chiropractic Association, announcing their victory in fooling the courts into legalizing the fiction of treating a non-existent entity, the chiropractic "subluxation".

On this matter I agree with chiropractic. Their legal basis for licensure is based on this very carefully worded phrase:

"manual manipulation of the spine to correct a subluxation".

The last four words are crucial to their whole argument, and they are right!

MDs, Osteopaths, and Physical Therapists can manipulate the spine and other joints, but only chiropractors believe in the existence of chiropractic "subluxations", which are not the same thing as real, objectively verifiable and symptomatic orthopedic subluxations.

A chiropractic "subluxation" can be defined by any chiropractor to be anything he or she wishes it to be. No "subluxation" can reliably and predictably be found by any two chiropractors. They have been discussing its existence and definitions for 111 years.

According to chiropractors, a "subluxation" doesn't have to be objectively verifiable by any means. It doesn't have to be symptomatic, and it always exists in all people, from birth to death. Since it doesn't necessarily have any symptoms, its treatment doesn't necessarily cause the relief of any symptoms. That "pop" has a great placebo effect, and the indoctrinated patient believes what their chiropractor claims - that a bone has been pushed back in place, that a joint has been adjusted. Hogwash!

Chiropractors are defending this basic dogma:

1. That spinal manipulative therapy (SMT) - known by chiropractors as "adjustments" - is essential for all people: newborns, the aged, healthy and unhealthy.

2. That "adjustments" should be used in practically every single treatment session, no matter what the diagnosis, since chiropractic usually ignores medical diagnoses in favor of the universal chiropractic diagnosis - the presence of damaging "subluxations", also termed the "vertebral subluxation complex" (VSC).

3. That "adjustments" promote health and prevent disease in the whole body, and that their effects are not merely limited to the structures around the joints being "adjusted".

4. That regular "adjustments" are necessary - even for asymptomatic individuals - in order for them to remain healthy.


Chiropractors wish to legally reserve a niche for themselves. Since that niche is the manipulation of a biotheological fiction, let them do it! They are doing a good job of painting themselves into precisely that corner of a cave, where the light can't shine.

In the process, we must make sure that they don't succeed in forbidding everyone else from manipulating the spine and other joints for other, more legitimate (and rare) reasons.

THAT is what they are aiming to do!

Here is one statement:

"ACA lobbyists, Ted Mullenix and Julie Grinder, had several meetings with both the sponsor the bill and the Physical Therapy Association lobbyist. They offered us several proposals including a bill that would include “manipulation” but exclude “chiropractic manipulation.” Our message was, in no uncertain terms, and will be there is no compromise on manipulation!" (emphasis added)

and another one showing just how far they are planning to go (in this case with acupuncturists):

"Arkansas Code 17-102-102 states that related techniques (for acupuncturists) shall not involve manipulation, mobilization, or adjustment to the spine or extraspinal articulations." (emphasis added)


The following is from the APTA website:


CMS Letter Does Not Restrict PTs
Physical therapists are not restricted in providing services they have historically furnished to Medicare+Choice beneficiaries¾or in their ability to bill for those services as before¾under an Operational Policy Letter (OPL) recently issued by CMS.....


CMS Letter Does Not Restrict PTs
Physical therapists are not restricted in providing services they have historically furnished to Medicare+Choice beneficiaries¾or in their ability to bill for those services as before¾under an Operational Policy Letter (OPL) recently issued by the Centers for Medicare and Medicaid Services (CMS).

The letter addressed the question of "which practitioners are authorized by law to perform manual manipulation of the spine to correct a subluxation as a Medicare-covered service," as covered in the Feb 8 issue of PT Bulletin Online.

After analyzing the letter, APTA notes that the CMS Operational Policy Letter applies only to Medicare+Choice, and not to traditional fee-for-service Medicare (Part B). More important, the OPL expressly applies only to manual manipulation of the spine to correct a subluxation. Consequently, APTA believes that physical therapists may continue to furnish manual manipulation of the spine for any other purpose to Medicare+Choice beneficiaries, as long as they practice within the scope of their state licensure. (bold emphasis added)

Based on preliminary discussions, it is APTA’s understanding that CMS and Department of Health and Human Services (HHS) officials do not disagree with APTA’s position on this issue. CMS officials have indicated that the OPL is limited in scope and applies only to manual manipulation of the spine to correct a subluxation. Further, CMS/HHS continues to oppose the lawsuit brought by the American Chiropractic Association (ACA), in which the ACA seeks to (a) declare chiropractors the exclusive providers of manual manipulation services to correct a subluxation; and (b) prohibit physical therapists from providing any manual manipulation of the spine services to Medicare+Choice beneficiaries. APTA has sought to intervene in the lawsuit, and has filed briefs opposing the ACA’s substantive arguments. The case is pending.


To further study this subject, use this search:

chiropractic physical therapist lawsuit "manual manipulation of the spine to correct a subluxation"

More follows after the press release......


***************

December 14, 2005 06:15 PM US Eastern Timezone

Appeals Court Overturns Adverse District Court Ruling in American Chiropractic Association Lawsuit against HHS

ARLINGTON, Va.--(BUSINESS WIRE)--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.

For more information and a copy of the Dec. 13 decision, visit ACA's Web site at: www.acatoday.com/government/medicare.

*************

From the ACA website:

HHS Lawsuit Information

U.S. Court of Appeals for the District of Columbia Circuit Decides ACA v. HHS on December 13, 2005

American Chiropractic Association v. Michael O. Leavitt, Secretary of the Department of Health and Human Services

** Nullifies lower court decision stating that MD's and DO's could perform manual manipulation of the spine to correct a subluxation on Medicare beneficiaries, ruling that the lower court did not have the jurisdiction necessary to make that decision;

** Decides that the federal courts are not currently the best place for determining the issue of which providers are best qualified to perform manual manipulation of the spine to correct a subluxation, cites a mechanism within the new Medicare Part C appeals process

********

The relevant part from the .pdf file named above:

Count 3 is more difficult. This alleges that the Secretary misinterpreted § 1395x(r) to mean that not only chiropractors, but also medical doctors and osteopaths could provide covered services when they manually manipulated an enrollee’s spine to correct the condition mentioned above. Suppose an HMO permitted enrollees to receive this service from a medical doctor or an osteopath or a chiropractor. Suppose also that a participating chiropractor became a party to an administrative proceeding in the manner just outlined. There would be a dispute about the referral requirement, but that goes to Count 4. Count 3 deals with who may provide the service. By hypothesis, a chiropractor would have provided the service, and everyone agrees that § 1395x(r) covers chiropractors. We can think of no reason why an administrative decision-maker would reach out to decide whether medical doctors and osteopaths may also do so. The possibility of judicial review at the end of the proceedings would be worthless. No court would adjudicate a claim that was not in controversy.

It would be another matter entirely if the HMO provided that only medical doctors and osteopaths could furnish the service at issue here. According to the Secretary’s report to Congress, twenty-two percent of HMOs have such a restriction. See note 1 supra. An enrollee in such an HMO could enlist the services of a chiropractor and, as we discussed with respect to Count 4, the chiropractor could become the enrollee’s assignee. (As with Count 4, amounts in controversy may be aggregated to obtain judicial review.) The chiropractor could then file an administrative claim, arguing that the HMO must reimburse him even though the HMO allows reimbursement only for medical doctors and osteopaths. At this point the HMO would be expected to defend on the ground that a regulation entitles it to restrict the type of practitioners who may provide a service. 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.” 42 C.F.R. § 417.416(b)(3) (emphasis added). The HMO’s invocation of this provision would squarely present the question 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. It follows that chiropractors could receive an administrative decision on the issue presented in Count 3 and that under Illinois Council the district court had no jurisdiction to decide that claim.

We therefore affirm the district court’s judgment with respect to Count 4. With respect to Count 3, we reverse the judgment on the ground that the court lacked jurisdiction.

So ordered.

*************

For more on this matter, click here:

Manipulation "to correct a subluxation".








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