Chiropractic Attorneys Hold Mid-Year Meeting

VANCOUVER, British Columbia -- Chiropractic legal representatives from 26 states, the ICA, the ACA and two chiropractic colleges met June 9-10 in this third largest of Canadian cities for the mid-year meeting of the National Association of Chiropractic Attorneys (NACA). Discussion topics included new CPT codes for manipulation performed by physical therapists, issues affecting MDs and DCs forming joint practices, informed consent forms, insurance reviewing companies that change diagnostic codes and cut/deny payment, and recent legislation affecting chiropractic.

CPT Physical Therapy Manipulation Codes

Tom Daly, ACA counsel, reported on Medicare CPT codes authorizing reimbursement for manipulation by physical therapists. The ACA addressed the issue with HCFA, which now takes the position that it is up to each state whether or not to authorize manipulation by physical therapists. Several states have laws or regulations prohibiting spinal manipulation by physical therapists. Paul Lambert, Florida Chiropractic Association counsel, reported that the Medicare administrator in Florida was successfully persuaded to halt planned reimbursement for manipulation by physical therapists in light of a Florida law prohibiting manipulation by PTs.

David Morrison, counsel for the Arizona Chiropractic Association, reported that Arizona workers' compensation is authorizing use of the physical therapy manipulation code for workers' compensation reimbursement. The Arizona Chiropractic Association is challenging this position.

Resource-Based Relative Value Scale

Mr. Daly reported that the ACA is attempting to persuade HCFA to apply the osteopathic manipulation codes generally for use by chiropractors at a higher reimbursement rate. The issue is currently pending before the AMA CPT Code Commission. A chiropractor has been seated on the CPT Code Advisory Body through the efforts of the ACA.

MD Manipulation

Judy Pope, counsel for the Kansas State Chiropractic Association, reported on the request for an attorney general's opinion pending on the authority of allopaths to manipulate under Kansas law. Said Ms. Pope, "MDs are manipulating and should be put on the spot on whether they have the scope of practice authority to manipulate without training. MDs have been criticizing chiropractic for a long time, but now see the benefit of spinal manipulation, especially after the AHCPR guidelines show effectiveness of spinal manipulation for acute low back problem."

MD/DC Joint Practices

David Morrison spoke on the increasing trend in Arizona of MDs and DCs forming joint practices. Joel Kruh, counsel of the Maryland Chiropractic Association, said that "improper billing by joint practices is a hot issue in Maryland." "There's a right way and a wrong way to do it," added attorney Mike Schroeder, who represents both the California and Hawaii Chiropractic associations. The discussion prompted the decision to have a seminar on joint practices at the annual NACA meeting scheduled for the first weekend in November.

State Farm

Lawyers from various states reported that State Farm Insurance representatives continue to take positions adverse to reimbursement for treatment by chiropractors in automobile accidents. Mr. Morrison commented that State Farm lost an important lawsuit in Arizona challenging the authority for chiropractors using chiropractic assistance to perform physical therapy. The court held that the Arizona Board of Chiropractic has the authority to adopt regulations addressing performance of delegated tasks by chiropractic assistants, including physical therapy under direction and supervision of chiropractors, unless Arizona law specifically prohibits a specific task by unlicensed people. Aubrey Villines, counsel for the Georgia Chiropractic Association, reported that State Farm took the position in Georgia that chiropractors didn't have specific authorization to bill for the use of hot and cold packs.

Third-Party Assignment Enforcement

Judy Pope offered information on a recent trial court opinion holding that assignments for payment accepted chiropractors must be honored under both Kansas and Missouri law regardless of whether the insurance company sent the chiropractor's payment directly to the patient. Vance Kinlaw, counsel for the North Carolina Chiropractic Association, spoke on a recent appellate court ruling in North Carolina enforcing assignments taken by chiropractors. Shawn Steel, representing Cleveland Chiropractic College of Los Angeles, noted: "Chiropractors in California are having success in suing in small claims court to enforce assignments which are not honored by insurance companies."

No Fault Insurance Managed Care

Some attorneys see a trend developing, reflected by legislative amendments which failed to pass in Florida and Maryland, to authorize automobile insurance companies to offer policies requiring treatment through managed care organizations. Jim Hogan, counsel for the New York Chiropractic Council, reported that New York adopted such a law authorizing an optional managed care automobile plan for a reduced premium. "The law requires the insurance company to have the policy holder sign a three page disclaimer form showing what is covered and what is not covered, but nobody reads it," said Mr. Hogan. "People don't realize that they can't go directly to their chiropractor for treatment after an automobile accident until after the accident and they read their policy."

Aubrey Villines discussed a failed amendment in the Georgia legislature requiring managed care organizations to tell what is not covered in clear terms. This will alert policy holders of what they will not receive under managed care. Joel Kruh recommended that each chiropractic association attempt amendments in each state requiring all managed care organizations to clearly state what is not covered. Said Brian Niederhauser, ICA counsel, "Nothing will reveal the weakness of managed care coverage more than a law requiring them to tell what they do not cover."

Insurance Reviewing Companies

Another "hot topic" was insurance companies' use of review companies to reduce chiropractic bills or cut off payment. Jim Hogan reported that one company in New York has its consultants telephone the treating chiropractor and ask to discuss the case, followed up by a questionnaire to the treating doctor. The company then "reviews" the case by computer and reduces or cuts off further payment based upon the "consultation" with the treating doctor and the questionnaire. "I'm recommending that chiropractors refuse to discuss their patients with any reviewing company consultant," said Mr. Hogan. Judy Pope said that the possible use of a billing formula by one reviewing company is being looked at for possible anti-trust violations. David Morrison commented that another reviewing company is teaming up with an insurance company to set up a PPO for automobile accident treatment, and setting up a fee schedule which may also violate anti-trust laws.

Workers' Comp. Managed Care

Phil Patton, counsel for the Kentucky Association of Chiropractic, reported on an opinion by the commissioner of the Department of Workers' Compensation that allows injured workers to seek care from any chiropractor if the carrier does not provide a chiropractic gatekeeper. Jim Kutz, Pennsylvania Chiropractic Association counsel, reported on a Supreme Court opinion in Pennsylvania holding the same thing.

Changing Billing Codes

Shawn Steel spoke about a recent insurance ruling prohibiting reclassification of billing codes by insurance consultants unless the consultant accepts responsibility for the new diagnosis. NACA members also discussed the growing problem of insurance company review consultants changing billing codes on claims submitted by chiropractors. After doing this, they often deny or reduce the request for payment. "This is a form of insurance fraud," said Vance Kinlaw, counsel for the North Carolina Chiropractic Association, "which can be attacked by amending state laws to prohibit the practice."

Nat'l Chiro. Legislative Conference (NCLC)

Members discussed the growing success of the annual National Chiropractic Legislative Conference (NCLC) "The NACA can greatly contribute to the NCLC by targeting committee staff in the House and Senate, and by identifying problems easily corrected by federal law," said Al Wax, counsel, Kentucky Chiropractic Society. Mr. Wax pointed out that very few people understand the problems of chiropractic better than the lawyers who represent them. "By identifying one problem each year and educating appropriate committee staff, we can increase the growing favorable attitude about chiropractic in Congress," said Mr. Wax.

Informed Consent

The NACA has periodically addressed the issue of informed consent and development of useful informed consent forms. However, the issue is complicated and NACA has not been able to develop a consensus on how to best develop an informed consent form. NACA will again address informed consent at its annual meeting in November to develop a sample form that can be used or modified by chiropractors in their practices.

Record Keeping

"The lack of good record keeping by all doctors continues to be a nagging problem," said Frank Strickland, representing Life College. "Good records protect chiropractors from allegations of over utilization or improper treatment," added Steve Elliot, counsel for the Miami Valley (Ohio) Chiropractic Association. NACA members made plans to address record keeping at the November meeting to develop standard record keeping recommendations.

Medicare Denial of X-ray by DC Referral

Medicare is denying payment for x-ray services upon referral by chiropractors under new guidelines adopted by HCFA in November 1994. Tom Daly reported that the ACA is meeting with HCFA to try to return to pre-November 1994 status authorizing payment for x-ray services upon referral by chiropractors.

AHCPR Low Back Pain Guidelines

NACA members discussed at length the AHCPR guidelines, Acute Low Back Problems in Adults. Dr. Reeve Askew, ACA liaison to NACA, said, "The guidelines are opening more doors for chiropractors by showing the effectiveness of spinal manipulation." John Vos, counsel of the Michigan Chiropractic Society said, "We sent one to every judge and are seeing immediate results in favor of understanding the benefit of spinal manipulation." Al Wax reported that the Kentucky Workers' Compensation Board adopted the guidelines and authorized manipulation plus two modalities for chiropractic treatment.

Mike Kelly, South Carolina Chiropractic Association counsel, said the guidelines were "a springboard for other studies which will show the effectiveness of chiropractic."

Accident Injury Reconstruction Specialists in Arizona

Mike Schroeder reported on a new practice called "accident injury reconstruction" by specialists who describe the physics of an accident and conclude whether a passenger was really injured as reported. Arizona is allowing accident reconstruction opinions, but the courts are requiring a combination of an opinion from an accident reconstructionist and a medical opinion to establish a proper foundation, reported David Morrison. Mr. Schroeder is currently preparing an article for publication in the NACA newsletter to point out ways to effectively address adverse accident injury reconstruction conclusions.

Michigan Scope of Practice Decision

John Vos reported that an appellate court has issued its long awaited decision in the 10-year litigated case involving the chiropractic scope of practice. The decision remands the issue for further trial court consideration and will probably be appealed to the Michigan Supreme Court. The decision is for the most part favorable towards chiropractic.

Patient Protection Acts in Texas

Des Taylor, Texas Chiropractic Association counsel, reported that Texas has adopted a Patient Protection Act. "It requires HMOs and PPOs to provide information to enrollees about coverage and give due process rights," said Mr. Taylor. Maryland has adopted a similar act which requires employers providing health care through HMOs to offer point of service plans to employees, according to Joel Kruh. Mr. Taylor explained that Texas Governor Bush vetoed a bill favoring the state's department of insurance to accomplish patient protection also.

Peer Review in Florida

Mark Carroll, counsel, Chiropractic Legal Affairs (Florida), reported on an appellate decision holding peer review standards used by the Florida Board of Chiropractic to be arbitrary and capricious. "Probably, this marks the end of state run peer review in Florida," said Mr. Carroll.

Regulation of Athletic Trainers in Florida

The Florida legislature has adopted a regulatory statute requiring athletic trainers in schools to be licensed by the state and supervised by either an allopathic, orthopedic, or chiropractic physician, reported Paul Lambert. "The legislature also put a chiropractor on the athletic licensing board since chiropractors are so intensely involved in sports medicine," said Mr. Lambert. In 1994, athletic trainers sought a law requiring mere registration of trainers, then expanded it into a full license regulatory statute. Judy Pope said that in Kansas, the athletic trainers' lobby successfully persuaded the state legislature to require legislation of athletic trainers. The 1995 Florida law requiring athletic trainers to be supervised by chiropractors, and the placement of a chiropractor on the licensing board sets an important precedence for other states to follow should athletic trainers seek licensure. "Without the chiropractic amendments, chiropractors would have been eliminated from participating in sports medicine," said Paul Lambert.

Next NACA Meeting

The November NACA meeting will be held in Scottsdale, Arizona. It will include seminars on issues affecting joint practices by MDs and DCs, soft tissue injury measurement, and computer e-mail networking. NACA is encouraging each state association and college to have its lawyer attend the November meeting. Lawyers who attend the meetings are better able to advocate for chiropractic and represent their associations. They learn of legislative and insurance trends that affect chiropractic.