It Is All About Scope

Author: David Herd, DC/Wednesday, February 03, 2016/Categories: May 2015

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ACA Vice President David Herd, DC, gave the keynote address at the New York State Chiropractic Association (NYSCA) 2015 Spring Convention on March 13, 2015. Here are excerpts from that speech. 

ACA THANKS NYSCA for being such a strong partner in working toward increased utilization, reimbursement parity and maintenance of clinical authority that will protect our ability to manage our patients as physician-level providers.

ACA hosted NCLC 2015, its largest and most successful national chiropractic leadership conference. We had 681 attendees, of whom 280 were chiropractic students. We made 270 visits to congressional offices, seeking co-sponsors 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 Tricare beneficiaries.

George McAndrews, the plaintiff’s attorney in the famed Wilk v. AMA et.al. case, now 80 years old, gave a speech. He noted a critically important Supreme Court decision issued Feb. 25, 2015. [North Carolina State Board of Dental Examiners v. 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 lawsuit. 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 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 services at 50 percent 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.

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 be made up entirely of all doctors of chiropractic, medical physicians or dentists. There will be increased participation by uninterested third parties, laypeople and state regulators. It remains to be seen how this decision impacts state boards in New York, which are more directly supervised through the education department than are boards in the rest of the country. It should end much of the anticompetitive coordinated activity, such as medical boards claiming chiropractors cannot perform a diagnosis.

There is one major potential downfall with this decision in New York and in states with similar scope laws, and that is its very limited scopeof- practice act; much of what DCs are allowed to do exists in regulations and decisions of the state board. It is time to improve New York’s state scope-of-practice act to eliminate the possibility that changes in board function or structure can negatively affect DCs’ ability to provide necessary services to patients.

Medicare: No. 1 Legislative Priority

Now I 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. ACA’s House of Delegates voted to make Medicare our No. 1 legislative priority amending the basic enabling language in the Social Security Act, which the Medicare program falls under. ACA’s 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 Section 2706, the provider nondiscrimination provision of the Patient Protection and 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 Section 1861(r), defines us as a single-service profession, that service being spinal manipulation to correct a subluxation.

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 Section 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.”

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

• 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 PPACA;

• We are subject to Byzantine documentation standards;

• Our patients are obligated to pay for examinations out of pocket; and

• We cannot order imaging or other diagnostic studies.

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

It is time to amend the basic enabling language in the Social Security Act’s Section 1861(r) to allow reimbursement for our full scope of services under our state licenses.

Focus on Billing Errors

So how do we get there? First we must address our billing error rate under Medicare, which is the highest of any provider group. 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.

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 a very positive experience for NGS, which has led to greater communication and collaborative efforts between ACA and NGS. In fact, NGS has invited ACA’s experts to participate in similar educational programs, including in Connecticut, and requested assistance in the training of chiropractic documentation requirements for its medical reviewers.

In addition to the successful ACA efforts with NGS, ACA’s 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.

As a result of several years of continual ACA efforts, a special meeting was arranged and held at NCLC 2015 with 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 that will be made uniform across the country. 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 practitioners come into compliance, our error rates and our relationship with the Medicare contractors and CMS will radically improve.

Complying with Medicare documentation standards 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 Feb. 26, 2015, by the House Ways and Means Committee, which looks to recoup $67 million 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 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 that passed out of committee, only the DCs remained.

In the bill’s 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.

Medicare will play a bigger role in the delivery of health care 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 percent of reimbursement will be based on performance and quality in 2016 and over 50 percent by 2018. This will be accomplished by pushing patients into accountable care organizations 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. ACA needs your help. Join us, and stand up to end our abysmal treatment under Medicare.

Further Reading

• For more on chiropractic and Medicare, see Jan./Feb. 2015 ACA News, Page 16.

• For more on the Wilk v. AMA case, see March 2012 ACA News, Page 10.

• For more on the Medicare documentation error rate, see Nov. 2014 ACA News, Page 22.

• For more on chiropractic scope of practice, see Oct. 2012 ACA News, Page 16.

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