Case Overview, Coverage of Chiropractic Services under the Medicare+Choice Program

Background

           The efforts to have chiropractic services included in the Medicare+Choice Program are the subject of this overview. The history of the issue of chiropractic services in Congress reaches as far back as 1972, when the term “physician” was broadened to include chiropractors who could manually treat the spine to correct a subluxation, a treatment unique to the chiropractic profession. This inclusion led to Medicare providing benefits for chiropractic services under the traditional fee-for-service program if the services were considered necessary and reasonable for the particular patient. The benefit also carried into the Medicare+Choice program; through the Balanced Budget Act of 1997, the +Choice program was required to cover all services covered under traditional Medicare.

           While subsequent regulations retained the correction of a subluxation on the list of benefits, the provision linking this treatment to doctors of chiropractic, exclusively, gradually disappeared.  At the same time, chiropractic supporters were arguing that the definition of chiropractors as physicians under the 1972 statute was “outdated” because it did not include their entire array of services and treatments beyond “manual manipulation of the spine.” For these reasons, activists on the issue, mainly the American Chiropractic Association (ACA), were concerned that the Health Care Financing Administration (HCFA) was not appropriately interpreting and enforcing congressional intent on matters related to Medicare.   One of the earlier efforts of the advocates of chiropractic was to get Congress to register protest with HCFA. They also sought studies to accurately gauge the role of chiropractic in managed care. Especially in the aftermath of the BBA of 1997, the advocates of chiropractic have asked HCFA to be more accommodating towards chiropractors, even if it means interpreting existing regulations differently.

           The first move on this issue in the 106^th Congress was made on 9 March 1999 when Representative Wes Watkins (R-OK) presented the Chiropractic Patients’ Freedom of Choice Act (H.R. 1046) to the House. The Act sought to amend the Social Security Act to ensure reimbursement under the Medicare Program for any services covered by it that are provided by licensed chiropractors. The proposal did not request that Medicare cover any specific additional services, but talked broadly about guaranteeing access and choice to beneficiaries by not excluding doctors of chiropractic from the list of possible primary care physicians. Concurrent resolutions in support of the legislation were brought to the House (H.Con.Res.62 dated 18 March 1999) and the Senate (S.Con.Res. 32 dated 17 May 1999) by Representative Barbara Cubin (R-WY) and Senator Kent Conrad (D-ND), respectively. 

           Concurrent with this legislative activity, the ACA took the legal route in suing the Department of Health and Human Services (HHS). The complaint, filed in May 1999, alleged that HHS, working through HCFA, had failed to ensure faithful execution of laws by not compelling Medicare-managed care organizations to provide chiropractic subluxation treatment, a mandated Medicare service, to Medicare beneficiaries. (The text of the complaint can be accessed at http://lobby.la.psu.edu/012_Chiropractic/organizational_statements/American_Chiropractic_Association/ACA_Complaint_filed_against_HCFA.htm).

           H.R. 1046 did not make it out of committee.  However, Congress did instruct the Department of Defense (2000) and the Department of Veterans Affairs (2001) to cover a broad range of chiropractic services for the beneficiaries of their health care systems. The Department of Labor also proceeded to reimburse doctors of chiropractic for the diagnostic x-rays required for documentation of the subluxation. In the 107^th session, the Chiropractic Patients’ Freedom of Choice Act was reintroduced as H.R. 902.  The proponents of this measure also tried to get it included in a larger Medicare reform measure in April 2002. 

Participants and Perspectives

            The main proponent group is the American Chiropractors Association (ACA) which was able to mobilize the support of many key members of Congress. The ACA believes that HCFA needs to adhere more carefully to legislation and regulation, and they want HCFA to give chiropractors the status of physicians.

            The main Congressional spokespersons on behalf of ACA are Representatives Wes Watkins (R-OK) and Barbara Cubin (R-WY) and Senator Kent Conrad (D-ND), since they brought the main legislation and concurrent resolutions to the floor in 1999. The bills were aimed at garnering bipartisan support that could pressure HCFA into taking action, and/or have the proponents’ demands incorporated into broader legislation. The House version of the concurrent resolution attracted 60 cosponsors, and the Senate version managed 15 cosponsors including Senators Daschle (D-SD), Grassley (R-IA) and Harkin (D-IA). 

            There wasn’t a very visible opposition to the proponents, but from the perspective of the main proponents, there exists a historical and sustained undercurrent of discrimination against chiropractors. The proponents view HCFA and the American Medical Association (AMA) as their opponents, suggesting collaboration among them to keep chiropractors out of the loop of Medicare+Choice. Other opponents include groups of chiropractors that do not think the ACA represents them, especially on the issue of how the expertise of a chiropractor ought to be defined and protected. They prefer to link chiropractors with the unique treatment of subluxation.

           Despite a great deal of Republican support, much of the eventual mileage of the bill was linked to the fate of Medicare reform proposed by the Democrats, since it had little mobility on its own. In that regard, then, opponents of government spending on healthcare were indirect opponents of this bill as well, depending to a certain extent on the projected cost and on whether it could be considered in isolation from the bigger price-tags of broader healthcare reform.

Arguments and Impediments

           Linguistic issues are central to proponents’ claims on this matter. They take issue with the connotation of the word “physician” as used by the 1972 statute that gave chiropractic services an inlet into Medicare. While chiropractors were “elevated” to the level of physicians, that stature was afforded them only if they performed a particular treatment—that of manually manipulating the spine to correct a subluxation. Beyond that particular treatment, it was irrelevant for the purposes of Medicare whether chiropractors were physicians or not, for their other array of skills would not be recognized or covered. With time, the proponents claim, HCFA dethroned chiropractors from that particular narrow privilege as well, by focusing on the treatment itself and refusing to accept that the technique was peculiar to chiropractors. This was reinforced when the Balanced Budget Act of 1997 retained all the traditional Medicare benefits, but the transition to the Medicare+Choice program failed to adequately protect or recover the status of chiropractors in relation to their expertise. Now, the subluxation treatment, for one, could reportedly be provided by anyone, at least in HCFA’s interpretation. Therefore, the discursive struggle of the proponents focuses on interpreting the 1972 statute more leniently and expansively, in order to allow chiropractors to be physicians in plural ways (as permitted by the scope of their license and education of course) and not be denied their special expertise either.  Therefore, the proponents demand a lenient interpretation of the term “physician” on one hand, and a stricter respect for their own expertise, discipline and uniqueness on the other. They certainly also suggest that there is more to being a chiropractor than correcting subluxations so that HCFA needs to recognize that their gamut of skills includes much more than manual manipulation of the spine. 

           Linked to this very issue of language and interpretation is a history of perceived discrimination and condescension directed at chiropractors by the medical community. In colloquial terms, it becomes an issue of not being taken seriously, or being considered less educated and less scientific than medical doctors—a line of argument proponents are very quick to adopt. Another set of arguments made by the proponents pertains to access to covered services and choice of licensed health care providers. Access to a broader range of reimbursed services, they argue, would expand beneficiary access to care in rural and medically under-served areas where other services are not readily available. Moreover, they continue, an increase in patients’ options is perfectly compliant with Section 1802 of the Social Security Act under which Medicare beneficiaries are ensured the freedom to choose their physician. The proponents see the current system as “blatantly anti-competitive” and in violation of the “freedom of choice of provider guarantees” established at the inception of the Medicare program because

It bars doctors of chiropractic from fully competing within the Medicare system and eliminates a source of provider competition that could reduce cost. (ACA Issue Brief on H.R.1046 accessible at http://lobby.la.psu.edu/012_Chiropractic/organizational_statements/American_Chiropractic_Association/ACA_Issue_Brief_HR1046.htm)

When chiropractic services are not covered, the proponents claim, an economic barrier is erected that hinders full enjoyment of the promised freedom of choice. They add that doctors of chiropractic are licensed to perform many of the procedures already covered under Medicare (such as physical therapy, diagnostic imaging and laboratory testing), and it is only fair that they be reimbursed for performing these services which currently only MDs are reimbursed for.

           The proponents also contend that cost reduction is guaranteed if the legislation is given a chance. A study conducted by Muse and Associates for ACA that examined the utilization, cost and effects of chiropractic services on Medicare programs concluded that chiropractic care significantly reduces per beneficiary costs to the Medicare program.

[Proposals for Medicare reform] may result in either decreased or increased access to Chiropractic services. The findings of our current law analysis strongly suggest that decreased access to Chiropractic services would increase program costs. This is contrary to the purpose of the Medicare program, which is to provide cost-effective health care services to the broadest group of Medicare beneficiaries.
(entire report accessible at http://www.amerchiro.org/pdf/muse_medicare.pdf)

Prescription drug expenditure is correlated to the number of visits to a medical doctor, the argument proceeds. Hence, according to the proponents, those Medicare beneficiaries who use chiropractic services have lower medical doctor costs and consequently lower prescription drug costs. Therefore, increasing access to chiropractic services may result in some savings to the Medicare program. According to a 1994 estimate, “the inclusion of chiropractic services under a national healthcare program would result in a system-wide savings of $5.4 billion annually.” (http://lobby.la.psu.edu/012_Chiropractic/organizational_statements/American_Chiropractic_Association/ACA_Chiropractic_Patients_Freedom_of_Choice_Act.htm).

            Citing the instance of lower back pain that afflicts “up to 80% of Americans at some point in their lives…costing at least $20 billion a year in direct medical costs,” they argue that increasing access to non-surgical care for the elderly would be more cost-effective than the other options, and be substantially beneficial to the Medicare program. They appeal to the logic of treatments like chiropractic which promise more immediate effects. They also draw upon the increasing popularity of complementary and alternative healthcare (CAM) such as chiropractic, acupuncture, dietetics, massage therapy and naturopathy. 

            Arguments in opposition to the legislation generally relate to cost, to the scope of Medicare, and also to effects on the quality and integrity of healthcare of leaving it open to too many fashionable forms of alternative medicine. The opponents refer to the existing condition of Medicare, suggesting that since Medicare is already headed toward insolvency, it makes little sense to add costs to a program that cannot even cover its current costs. When the issue of chiropractic coverage becomes simply one about expanding access befitting progressive Medicare reform, those opposed to government spending or augmentation of Medicare oppose this element as well. “A Republican Congress isn’t into government spending,” said an advocate we interviewed. The suspected antipathy of the American Medical Association (AMA) works well with other kinds of conventionalists who are suspicious of trends in treatment that become fashionable too quickly. Since chiropractic is considered one of them, they deny that it is a viable service to be included because “allowing chiropractors in” would “open the floodgates…because then you have to allow other peripheral providers” and be left with no grounds to deny them entry.  More specifically, they insist that there is no such thing as chiropractic benefits, and that the status quo should be adhered to, in order to keep their services restricted to manual manipulation of the spine.

           Unsuspected opposition comes from groups of chiropractors, primarily the World Chiropractic Alliance (WCA) and also the National Association of Chiropractic Medicine, who are “opposed to any expansion of the scope of practice beyond the correction of a misaligned spinal bone to correct nerve interference which will dramatically increase health care costs.” These groups thus become allies of the AMA, the American Osteopathic Association and the American Physical Therapy Association in opposing the ACA’s effort.

Political Venues

           HCFA, because of its oversight of the Medicare program, provided one arena for debate about the coverage of chiropractic services under Medicare+Choice.  In Congress, the bill and the concurrent resolution brought to the House were referred to the House Committee on Commerce and then to its subcommittee on Health and Environment, and also to the Health subcommittee of the House Ways and Means Committee. The Senate version of the resolution was referred to the Senate Committee on Finance. The House Committee on Government Reform also heard testimony regarding insurance coverage issues on complementary and alternative medicine. Another avenue explored by the proponents was the federal court, when they brought a lawsuit against HHS in May 1999.

Advocacy Activities

           The advocacy effort on this issue in Congress has been pretty traditional.  Proponents personally contacted members of Congress, especially members of key committees and members of the leadership, in order to build support for the resolutions and H.R. 1046.  In addition, organizational proponents had their members contact members of Congress in person (during a “lobby day” on the Hill) and by letter as a way of gathering cosponsors for the legislative proposals.  One of the proponents’ earliest and most sustaining victories was having Representatives Cubin and Watkins, and Senators Conrad, Daschle, Harkins and Hatch, be active on their behalf in Congress. Most of the members the proponents were able to win over had some autobiographical investment (by virtue of having suffered some ailment or the other, and been successfully treated by chiropractic doctors).