The ACA v. Trigon Blue Cross/Blue Shield litigation seeks to establish an important legal principle under federal antitrust laws. The precedent established by this may well have a direct effect on all insurance companies and managed care organizations across the nation. At issue in Trigon are reimbursements policies, fashioned by competitive medical doctors and medical associations, designed and intended to limit reimbursement to chiropractors for the benefit of medical physicians and other providers. The goal of the federal antitrust laws is to eliminate practices that interfere with free competition. Section 1 of the Sherman Act prohibits "combinations and conspiracies" in restraint of trade. Section 2 of the Sherman Act prohibits monopolization, attempts to monopolize, and/or conspiracies to monopolize the marketplace or exclude competition. The American Chiropractic Association (ACA) is using these central and long-standing concepts under the federal antitrust laws to go at the heart of economic discrimination against chiropractors practiced by Trigon, and by direct implication, any other entity that engages in such discrimination.
A History of Discrimination
Chiropractic has long been a target of discrimination by Blue Cross/Blue Shield plans. Concerted efforts to boycott chiropractors were outlined by the plaintiff in the landmark antitrust case, Wilk et al. v. American Medical Association et al., 735 F.2d 217 (7th Cir. 1983), cert. denied, 467 U.S. 1210 (1984), 895 F.2d 352 (1990). Portions of the evidence from Wilk stated in part:
"Defendant Doyl Taylor was the ghostwriter of the Health Insurance Association of America's anti-chiropractic position statement.1 (PX-609, 616).
The AMA worked with the Blue Shield Association to restrict insurance payments to doctors of chiropractic. AMA staff met with Blue Shield to prevent insurance payments for chiropractic services:
"Chiropractic Coverage under Blue Shield - Staff will continue to maintain liaison with the National Association of Blue Shield Plans in regard to chiropractic attempts to gain coverage under Blue Shield. (Note: A productive meeting was held with representatives of Blue Shield on this point. They are actively considering various methods of excluding doctors of chiropractic from Blue Shield coverage.)" (PX-273, p. 3; emphasis added.
Blue Shield also moved to circumvent state insurance equality laws:
"1. We have filed and may use in six states an exclusion deleting manipulative services and subluxations for the purpose of removing nerve interference. Basically, the exclusion extends to services of a chiropractor by definition." (Blue Shield summary of 1969; PX-433).
The exclusion used was directed at doctors of chiropractic, without naming them:
"I regret to report that Chapter 902 of the 1971 laws of the state of New York did amend Section 250 of the Insurance Law to include 'chiropractic care provided through a duly licensed chiropractor' as part of the definition of 'medical expense indemnity.' Through past example of this means that New York Blue Shield plans will have to provide reimbursement for services of doctors of chiropractic if they would reimburse physicians for performing the same service. UMS anticipated this problem some years ago by adding as exclusion to its contract which repeated word for word the statutory definition of what doctors of chiropractic are licensed to do." (PX-441).
Blue Shield2 avoided making insurance payments to chiropractic patients even where required by state law:
"Survey of Blue Shield Plan Payment Policies Regarding Non-MD Pro-viders...National Association of Blue Shield Plans Marketing Division, February, 1973."
"Resistance to chiropractic payment may be indicated by the fact that fewer plans make payment than the laws require." (PX-429, cover page and p. 2; emphasis added).
Chiropractic Advancement in the 1990s
Historic and fundamental advancements for the chiropractic profession occurred during the 1990s. In 1990, the AMA was found guilty of a "lengthy, systematic, successful and unlawful boycott" of the chiropractic profession. Wilk v. AMA was finally enjoined from a decades-old partially sub rosa effort to destroy chiropractic in the U.S. In 1992, the AMA, under the command of a court order, published its revised position on chiropractic, establishing for the first time, "...it is ethical for a physician to associate professionally with chiropractors, provided that the physician believes that such association is in the best interest of his or her patient."
The AMA policy reversal also made clear that the referral of patients between chiropractors and medical providers was ethical. Also in 1992, Trigon and the medical physicians of Virginia became aware of a 1992 study by the University of Richmond (Robin's School of Business), which concluded: "If chiropractic care is insured to the extent other specialties are stipulated, it may emerge as a first option for patients with certain medical conditions." (emphasis added)
These advancements were quickly followed by government and medical educator studies that found glaring competency gaps in medical doctor education, and pushed chiropractic care of the spine to the forefront for problems afflicting people of all ages. In 1994, the federal Agency for Health Care Policy and Research "made history when it concluded that spinal manipulative therapy is the most effective and cost-effective treatment for low back pain," according to an article in the Annals of Internal Medicine (July 1998). Also, in 1998, the Journal of Bone and Joint Surgery concluded that 82 percent of medical physicians flunked a basic examination of the neuromus-culoskeletal system. The study was re-evaluated and later revalidated in a report issued in April 2002.
Chiropractic also made major strides in terms of the identification and reimbursement of its core treatment modality, i.e. chiropractic manipulative treatment (CMT). In 1995 and throughout 1996, the ACA sought to change the existing procedure code under Medicare's reimbursement schedule that related to the provision of chiropractic manipulation. Up to that time, there existed one code used for Medicare purposes, which had a "relative value" viewed by Medicare as a minimal "default" value. As part of the reevaluation by Medicare, the ACA approached the AMA's Current Procedural Terminology (CPT) panel to establish a new coding set that accurately reflected the services provided by chiropractors. The result was a new series of CMT codes approved by the AMA panel in a process that is common to all other procedure codes. This new CMT coding series closely paralleled the existing osteopathic manipulation treatment coding series.
The next step was to present the new codes to a second panel (the AMA's Relative Value Update Committee) to ascertain their relative value. The recommendation from this panel was then presented to Medicare for its rulemaking procedure and the establishment of the final relative value. The final relative values for the CMT codes were established by Medicare and published in the November 22, 1996 edition of the Federal Register.3 The relative values for the four new chiropractic manipulation codes were substantially higher than the previous relative value of the former single chiropractic manipulation code.
Resistance to Chiropractic Advancements
Blue Cross/Blue Shield has long been considered the medical physicians' insurance company, to the exclusion of chiropractors and other nonmedical physicians. The growing evidence of chiropractic superiority and the establishment of higher relative values for chiropractic manipulation posed an economic threat to medical physician reimbursement under these plans. While reimbursement for chiropractic services has long been problematic under Blue Cross/Blue Shield plans, in 1997, discriminatory policies targeting the new chiropractic manipulation codes were implemented up and down the east coast of the U.S. and spread to other states across the nation. These policies were all aimed at negating the new higher relative value for the CMT codes and countering the growing acceptance of chiropractic.
In addition, policies were enacted that treated chiropractic physicians differently in terms of coding, recognition and payment for (CMT and non-CMT) CPT codes in a way no other physician or physician groups were treated. The policies adopted by Trigon Blue Cross/Blue Shield of Virginia were specifically targeted by the ACA because they were representative of the types of discrimination seen in other states, and because of Trigon's adamant refusal to even consider changing or amending its policy toward chiropractic. Specifically, this policy included:
- paying chiropractors 40 percent less than medical doctors for the same services identified with the same CPT codes;
- "leveling" payment for the new CMT codes by only paying a 98940 CMT code, no matter how many levels of the spine were treated, and no matter what level code was identified by the chiropractor (i.e., 98941, 98942, 98943);
- applying an arbitrary $500 cap on manipulation services provided by chiropractors; and
- failing to pay for the services rendered by chiropractic assistants while paying for services rendered by medical assistants.
The above items of economic discrimination share a common feature with policies adopted by Blue Cross/Blue Shield plans in other states. These policies, written and drafted with the cooperation of medical competitors, seek to specifically limit chiropractic reimbursement in a way no other providers' reimbursement is limited. Whether the issue is percentage limitations on reimbursement, bundling of E and M or PT services into the CMT codes, or limiting recognition of a chiropractor's status, they have all been crafted by Blue Cross/Blue Shield plans and other insurance companies as a means by which chiropractic and chiropractic services may be limited, contained and, in time, eliminated. Just as the ethical prescriptions found to violate the antitrust laws in Wilk were intended to contain and eliminate the chiropractic profession, the economic policies adopted by Blue Cross/Blue Shield plans in the 1990s were intended to limit and contain the range of chiropractic reimbursement in the face of growing public recognition and acceptance of chiropractic treatment.
Chiropractic's challenge in the '70s and '80s was to turn back the ethical boycott against the profession reflected in Wilk. The challenge today is to turn back the economic boycott developed in the 1990s as a reaction to chiropractic. ACA v. Trigon is the best and most effective means to meet that challenge by drawing a "line in the sand." It established the principle that economic discrimination that results from competitive medical physicians' conspiratorial restraints on reimbursement for chiropractic services, effectively boycotts the profession, is a violation of law. Such legal principle will apply, whether the economic discrimination is carried out by a Blue Cross/Blue Shield plan, an insurance plan, or any type of managed care organization.
The ACA has decided to meet this challenge head on. The continued viability of the chiropractic profession under current and future reimbursement systems of all types rests on whether or not the ACA will prevail in this effort. At stake is whether any insurance plan or managed care organization will have the ability to selectively discriminate against chiropractic services and patients. The ACA is committed to vigorously pursue the litigation to protect the best interests of the chiropractic profession.
If you wish to contribute to this litigation, you may send your check to:
The National Chiropractic Legal Action Fund
P.O. Box 75359
Baltimore, MD 21275
Notes
- An internal HIAA memorandum of February 19, 1969 reveals its concern for antitrust liability in taking this action:
"Carroll sent you a copy of his memo to me. I would suggest you consider requesting Bill Maloney do some legal research on the possibilities of our getting into trouble under libel, slander and boycott if we take a position supporting the AMA in its views about chiropractors." (PX-597; emphasis added.)
- The courts have held that Blue Shield Plans are "agents of their member physicians." Virginia Academy of Clinical Psychologists v. Blue Shield of Virginia, 624 F.2d 476, 480 (4th Cir. 1980), cert. denied, 450 U.S. 916, 101 Sect. 1360 (1981).
- Medicare comments in the November 22, 1996 Federal Register, p. 59545-59546, state: "We (Medicare) agree with the recommendation of RUC HCPAC Review Board that the chiropractic manipulative treatment codes represent services and physician work that essentially parallel that of the osteopathic manipulation codes. The work RUUs based on the survey results appear to be identical to osteopathic manipulation treatment work RUUs . . . In conclusion, we agree with the RUC that the work assigned to the chiropractic manipulation treatment codes is sufficiently comparable to that assigned to the osteopathic manipulation treatment codes." (Emphasis added.)
Tom Daly
ACA Legal Counsel
Arlington, Virginia
