On October 2, 1968, six weeks before the chiropractors were due to testify before the Panel,
Dr. John Southard of HEW told Dr. Samuel Stevens of the AMA Committee on Quackery that
“Testimony by the AMA or the medical profession is unnecessary as the final answer has already been determined.”[1]
Wither on the Vine
In fact, history shows that the medical profession has opposed every presidential effort to any type reform healthcare in America, starting with:
Teddy Roosevelt’s call in 1906 for workmen’s compensation; Roosevelt’s 1912 Progressive Party platform included this plank: The protection of home life against the hazards of sickness, irregular employment and old age through the adoption of a system of social insurance adapted to American use;[2]
Franklin D. Roosevelt’s Social Security initiative where he outlined in his State of the Union Message, an “economic Bill of rights,” which included “the right to adequate medical care and the opportunity to achieve and enjoy good health.”
Harry Truman national healthcare coverage, Wagner-Murray-Dingell Bill, providing for National Health Insurance was immediately introduced and ridiculed as “socialized medicine,”
Kennedy appointed a “Task Force on Health and Social Security for the American People,” the original Medicare/Medicaid legislation with Wilbur J. Cohen as Chairman, was defeated by the AMA and Republican Congress.
Johnson’ Great Society initiative; H.R. 6675 was introduced by Representative Wilbur Mills as the “Social Security Amendments of 1965” and passed by a Democratic Congress.
Nixon’s push for HMOs and his War on Cancer; Nixon signed the Social Security Amendments of 1972 (PL 92-603).
Reagan in his State of the Union Address called for the transfer of $47 Billion in Federal programs to the jurisdiction of State and local governments.
President Clinton signed H.R. 2015, the Balanced Budget Act of 1997 (BBA), into law, but his 1993-94 Health Care Act was defeated.
Only George W. Bush’s giveaway to the drug companies was unopposed by the AMA when he signed into law the Medicare Prescription Drug, Improvement, and Modernization Act, which included a prescription drug plan for elderly and disabled Americans.[3] Bush also prohibited the purchase of medications from Canada, another windfall for Big Pharma in America considering its huge markup in prices.
Obama’s healthcare reform barely passed despite the objection of the Republican Party and conservative groups such as the Tea Party movement.
Aside from interference with presidential initiatives at healthcare reform, history is replete with attempts by the AMA to thwart efforts to restrain its control of the American healthcare market. In 1937 Fishbein and the AMA were convicted of anti-trust violations for conspiracy and restraint of trade for trying to destroy an autonomous doctors’ group applying cost-cutting health delivery and insurance in Washington, DC.[4] Socialized medicine in any form was attacked by Fishbein even when it came from within his own medical profession.
Morris Fishbein politicked against “socialism” in healthcare such as the national programs that emerged in post-war Europe. In his usual demagogic fashion, Fishbein scared the public against “peasant medicine” and “medical Soviets” as far back as 1939:
…all forms of security, compulsory security, even against old age and unemployment, represent a beginning invasion by the state into the personal life of the individual, represent a taking away of individual responsibility, a weakening of national caliber, a definite step toward either communism or totalitarianism.[5] (emphasis added)
Not only did Fishbein attack nation-wide socialized medicine in Europe coming to America, he also fought against the development of community-based healthcare organizations in America.
When the United States entered World War II in 1941, the medical profession was comprised almost entirely of solo practices; many were few and far between. Many people had no access to medical care, and a very large proportion of inductees examined for fitness to serve prior to enlistment in the military were seeing a doctor for the first time in their lives. When medical care was given in those days, it was given in the doctor’s office or perhaps in the patient’s home, but certainly not in comprehensive medical hospitals that Kaiser designed. The basis of physician payment was fee-for-service and the fee was paid out-of-pocket by the patient.[6]
Henry J. Kaiser had a fundamental understanding that paying for physician care via a capitation (fixed fee per person) system created the potential for developing a totally different culture than that of fee-for-service medicine where the wealthy got care but the poor did not.
In order to change the American medical care system, Henry J. Kaiser announced a new kind of healthcare plan to compete in the medical marketplace, much to the chagrin of for-profit medical doctors who wanted nothing to do with lower fees. Of course, Kaiser met stern opposition from Fishbein.
As early as 1942, Fishbein opposed WWII ship builder-magnet Henry J. Kaiser’s effort to create healthcare for his workers, the origin of The Kaiser Permanente Foundation that today operates comprehensive medical groups in 333 contract hospitals that employ over 9,400 physicians.
The trouble began last spring in Vancouver, Wash., when it became apparent that a new Kaiser shipyard would boom the town from 18,000 to 60,000. Kaiser brought in 20 doctors to look after his employees. Vancouver’s 22 regular doctors tended the rest of the townsfolk.
Kaiser planned to provide medical care not only for his employees (who pay $2.60 a month for it), but their families as well. Family care is “contract medicine” and will be established in the U.S. only over the dead body of the A.M.A.[7]
Capitated pre-payment programs were less profitable than fee-for-service for physicians, and this angered the AMA and Fishbein who had always fought against “socialized” medicine. Despite the fact that the Kaiser program offered care to many people at a reduced cost, Fishbein opposed the program. Apparently, the Hippocratic Oath did not apply when profits were at stake, revealing that the real goal of the AMA was to maintain doctors’ incomes and not the public welfare.
According to a 1942 article in TIME:
Not easily scared by anything, Henry Kaiser is not scared at all by what the AMA calls socialized medicine. His medical ideas are no less sweeping than his other projects—he wants to doctor everybody. Bursting with health himself, Kaiser carries a medicine kit wherever he goes to ‘look after my folks,’ often stops in his plants and shipyards to offer pills to gravel-shovelers and executives. This concern goes back to his boyhood: Henry Kaiser believes his mother died too young [due to] lack of medical care.”[8]
Henry Kaiser is obstructing the draft of doctors to maintain his own individual empire, cried Editor Morris Fishbein, in his American Medical Association Journal last week. For retort, Henry Kaiser “implored” that the medical profession “immediately investigate the honesty and integrity” of Dr. Fishbein. [9]
A Congressional committee gnawing over the U.S. shortage of doctors called as witnesses both Dr. Morris Fishbein, American Medical Association bigwig, and mountain-moving Industrialist Henry J. Kaiser, who in the name of wartime efficiency is providing his tens of thousands of employees with medical attention at a fixed fee of 50 cent a week. The two did not clash directly but when Fishbein said priorities made the building of new hospitals impossible, Kaiser snorted: “We are doing it.” Said Dr. Fishbein blandly: “You are a very strong man, Mr. Kaiser.” Before the hearing was over the strong-minded duo had given the world a memorable picture of a high-domed duologue.[10]
After the devastation of World War II, it was obvious all of Europe needed universal healthcare. This belief took hold in America and angered the AMA. At the AMA’s annual meeting, the leadership took their opposition public with a huge public relations campaign to war against the Truman-Ewing plan for national health insurance.
Within some 30 feet of the House of Delegates’ meeting room was a poster reproduction of The Doctor, Sir Luke Fildes’ sentimental 1891 picture of what a press release called ‘a renowned physician in faithful attendance at the bedside of a peasant child in her humble cottage.’ AMA propagandists had added, in big type: “Keep politics out of this picture.
They hope to have copies in 100,000 doctors’ offices within a few months, thousands more in dentists’ offices, drugstores. Yet doctors in and out of the House of Delegates were up to their cervical vertebrae in politics. What baffled many of them was that the man [Fishbein] who had fought their fight well had been summarily kicked out of a battle that was to be fought with his strategy, but not with his tactics.
Dr. Elmer Lee Henderson said in his inaugural address: “Our affairs are no longer just medical affairs. They have become of compelling concern to all the people.
Dr. Henderson broadened the front of AMA’s war against the Truman-Ewing plan for national health insurance. He lashed out against “little men whose lust for power is far out of proportion to their intellectual capacity . . . or their political honesty . . . It is not just ‘socialized medicine’ which they seek . . . Their real objective is to strip the American people of self-determination and self-government, and make this a socialist state in the pathetic pattern of the socially and economically bankrupt nations of Europe, which we, the American people, are seeking to rescue from poverty and oppression.[11]
Indeed, political medicine has a long history of fighting healthcare reform.
Early in his career, Fishbein recognized the power of the press to dissuade the use of alternative healthcare providers, so he and the AMA also used the media to attack their second greatest hatred — that of socialized medicine in any form, whether private health groups such as the Kaiser Permanente or public programs such as Medicare and Medicaid.
When President Harry S. Truman attempted to create a national health insurance system in America, he encountered the same well-organized and financed opposition that included insurers, large corporations, Republicans, and the AMA — the usual conservative interests of the time.
President Truman proclaimed in January 1949: “In a nation as rich as ours, it is a shocking fact that tens of millions lack adequate medical care.” Harry Truman’s prescription: “We need—and we must have without further delay—a system of prepaid medical insurance . . .” That system, he said, must be national and compulsory, based on a payroll tax. [12]
Federal Security Administrator Oscar Ewing backed up his boss with an elaborate report entitled The Nation’s Health. Ewing declared: “Every year, over 300,000 people die whom we have the knowledge and the skills to save … By & large, only the well-to-do and, to a certain extent, charity patients, get satisfactory medical care.”[13]
More specifically, said Ewing:
A scant 20% of our people are able to afford all the medical care they need. About half our families—those with incomes of $3,000 or less—find it hard, if not impossible, to pay for even routine medical care. Another 30% of American families with incomes between $3,000 and $5,000 would have to make great sacrifices or go into debt to meet the costs of a severe or chronic illness.
In the Red-baiting language of the day during the Cold War, the AMA’s public relations experts introduced the phrase “socialized medicine” into the public lexicon to scare the public. Sen. Edward Kennedy recalled that “members of Truman’s White House staff were branded ‘followers of the Moscow party line.’”[14] Truman was forced to retreat in the face of this “anti-socialism” campaign.
President Obama’s Healthcare Reform suffered the same “socialized medicine” branding by conservatives, allthewhile ignoring the success of Medicare, Medicaid, the Veteran’s Administration, and the military health services that, in effect, are by definition state-supported healthcare. This irony was lost on many in the Tea Party who shouted against Obama’s supposed “socialized” healthcare plan while at the same time demanded to “keep their hands of my Medicare.”
Operation Coffee Cup
The same fate for healthcare reform plagued John F. Kennedy when he became President in 1961 and began to work for comprehensive health coverage for both elderly and low-income Americans. This legislation later became known as Medicare and Medicaid, a godsend for millions of Americans today, but he also found himself at loggerheads with the AMA.
There have been many battles on the Medicare battlefront. It is truly ironic that the foremost opponents of a nationalized healthcare plan were the medical doctors themselves. To the surprise of most Americans today, the American Medical Association, the self-proclaimed “guardians of health,” was adamantly opposed to the initial Medicare legislation proposed by then-Senator JFK in 1961.
Shortly thereafter his presidential election, JFK’s Medicare/Medicaid legislation fought the AMA’s Operation Coffee Cup featuring Ronald Reagan who used Red-baiting fear tactics to scare Americans into thinking these national health programs for seniors and the poor were a “slippery slope to Communism.” Apparently this scare tactic worked since the initial legislation was defeated.
Rather than containing the battle to Capitol Hill, the medical cartel used the media to distort the issue of universal healthcare for seniors and the poor with fears and worries that have come to typify the same modus operandi we see today. The same tactics misrepresent the issues, mischaracterize their opponents, and suggest “nightmarish scenarios,”[15] and “confusing claims and outright distortions have animated debate about changes in the healthcare system”[16] in TV ads and radio talk programs and have been used to frighten people and move them to react against changing the present fee-for-service medical system.
The most impactful tactic used by the opponents of the original Medicare legislation included a clandestine program that launched Ronald Reagan’s political career and arguably invented ‘viral marketing.’ Reagan was hired as part of a covert public relations campaign to undermine support for Medicare and Medicaid; hence “Operation Coffee Cup” was born.[17]
Reagan recorded 3,000 copies of an LP (“long playing” record), “Ronald Reagan Speaks Out Against Socialized Medicine.” The AMA sent it to the “Women’s Auxiliary” of the Medical Association in each county. These ladies were instructed to “put on the coffeepot,” play the record for their friends and fellow physicians’ wives, and then get out the stationery so that each of them could write personalized letters to editors, Senators and Congressmen.
Its 82,000 members undertook a variety of educational, charitable, community service, and public relations tasks on behalf of the AMA. In the spring of 1961, the Women’s Auxiliary was asked to launch a special high-priority initiative under the title of WHAM, Women Help American Medicine. The avowed aim of WHAM was stated as:
This campaign is aimed at the defeat of the King-Anderson bill [forerunner of the Medicare bill] of the 87th Congress, a bill which would provide a system of socialized medicine for our senior citizens and seriously curtail the quality of medical care in the United States.[18]
The selection of Reagan was more than a coincidence and Reagan was a willing volunteer to speak about the evils of socialized medicine since his father-in-law, Dr. Loyal Davis, was the president of the AMA. Operation Coffee Cup produced thousands of letters, which helped narrowly defeat a Medicare bill in the Senate later that year, although Medicare was ultimately passed and signed into law by President Lyndon Johnson in July 1965.
In his 20-minute passionate recording, the host of television’s “Death Valley Days” denounced what he called “the foot-in-the-door” leftist technique that, he noted, was “one of the traditional methods of imposing socialism on a people … by way of medicine.”[19]
There was no public announcement of the recording or of “Operation Coffee Cup.” The AMA’s tactic was similar to years past to make it seem as if the letters were a spontaneous populist effort written by distressed citizens. Portions of the recording were also reportedly broadcast as radio commentary. This sounds similar to the tactics used today during Obama’s healthcare reform with the fabricated tea parties and protests at town hall meetings.
Reagan no doubt terrified many of his listeners with his conclusion that if they did not prevent the passage of Medicare, “one of these days you and I are going to spend our sunset years telling our children and our children’s children what it once was like in America when men were free.”[20] Inexplicably, health care for seniors and the poor would be a slippery slope to communism according to Reagan, which may explain why as president in the 1980s Medicare received little attention from him.
This fear-mongering tactic was designed to appear spontaneous rather than organized and well-funded. It used word-of-mouth communication backed by prepackaged “talking points” from the AMA. Operation Coffee Cup was kept deliberately low-key and internal to the AMA, its Women’s Auxiliary, and the trusted friends and neighbors of the Auxiliary women.
Reagan’s efforts against Medicare were revealed, however, in a scoop by Drew Pearson in his Washington Merry-Go-Round column of June 17, 1961. Pearson titled his item on Reagan, “Star vs. JFK,” and he told his readers:
“Ronald Reagan of Hollywood has pitted his mellifluous voice against President Kennedy in the battle for medical aid for the elderly. As a result it looks as if the old folks would lose out. He has caused such a deluge of mail to swamp Congress that Congressmen want to postpone action on the medical bill until 1962. What they don’t know, of course, is that Ron Reagan is behind the mail; also that the American Medical Association is paying for it.
Reagan is the handsome TV star for General Electric . . . Just how this background qualifies him as an expert on medical care for the elderly remains a mystery. Nevertheless, thanks to a deal with the AMA, and the acquiescence of General Electric, Ronald may be able to out-influence the President of the United States with Congress.[21]
The “Socialized Medicine” record was Ronald Reagan’s first venture into political speech and his efforts in “Operation Coffee Cup” were so well-received that he was invited to give a speech for presidential candidate Barry Goldwater at the 1964 GOP Convention.
Medicare Revived
After JFK’s death, a few years later President Lyndon Baines Johnson (LBJ) took on this task again under his Great Society program. The AMA spent $950,570 alone on “legislative interests”[22] during the first three months of 1965 as it fought the Johnson administration’s program to provide health care for the elderly and, specifically, chiropractic care, which was not included until 1972.
Following the Presidential election of 1964, and Johnson’s huge landslide victory, he came into 1965 with a clear mandate for his programs and a large Democratic base in both houses of Congress. Johnson’s popular vote margin (61% to 39% for Goldwater) remains the largest in American history. The Democrats picked up 41 seats in the House and won 28 of the 35 seats up for election in the Senate. Not only were the margins impressive, but this would be the most liberal Congress since the New Deal. Conditions were optimal for Medicare. If it could ever pass, 1965 should be the year. [23]
The reality of details in this legislation was surprisingly broad and not well understood by President Johnson according to White House recordings of his personal conversations with Wilbur Cohen, chief architect and head of HEW. LBJ seemed most interested in payments for MDs and control of the hypochondriacs, not any details in particular. Once his bill passed, LBJ discuss it with Wilbur Cohen.
Cohen: I think it’s a great bill Mr. President.
Johnson: Is that right?
Cohen: Yes sir. I think you got not only everything that you wanted, but we got a lot more. . . It’s a real comprehensive bill.
Johnson: How much does it cost our budget over what we estimated?
Cohen: Well, it would be, I would say, around $450 million more than what you estimated for the net cost of this supplementary program.
Johnson: What do they do under that? How is that handled? Explain that to me again, over and above the King-Anderson, this supplementary that you stole from Byrnes.
Cohen: Well, generally speaking, it’s physicians services.
Johnson: Physicians. All right, now my doctor that I go out and he pumps my stomach out to see if I’ve got any ulcers, is that physicians?
Cohen: That’s right.
Johnson: Any medical services that are M.D. services?
Cohen: Any M.D. services.
Johnson: Does he charge what he wants to?
Cohen: No, he can’t quite charge what he wants to because this has been put in a separate fund and what the Secretary of HEW would have to do is make some kind of agreement with somebody like Blue Shield, let’s say, and it would be their responsibility . . . that they would regulate the fees paid to the doctor. What he tried to do was make sure the government wasn’t regulating the fees directly. . . the bill provides that the doctor can only charge the reasonable charges, but this intermediary, the Blue Shield, would have to do all the policing so that the government wouldn’t have its long hand . . .
Johnson: That’s good. Now what does it do for you the patient, on doctors. It says you can have doctors bills paid up to what extent or how much? Is there any limit?
Cohen: The individual patient has to pay the first $50 deductible, then he’s got to pay 20% . . . of everything after that. . . .
Johnson: That keeps your hypochondriacs out?
Cohen: That will keep the hypochondriacs out. At the same time, for most of the people it will provide the overwhelming portion of their physicians’ costs.
Johnson: Yes sir, and that’s something nearly everyone could endure. They could borrow that much, or their folks could get them that much to pay their part. . . . I think that’s wonderful. Now remember this, nine out of ten things I get in trouble on is because they lay around. Tell the Speaker and Wilbur to please get a rule just the moment they can. . . . That damn near killed my education bill, letting it lay around. It stinks. It’s just like a dead cat on the door. When a Committee reports it you better either bury that cat or get it some life.[24]
LBJ signed this legislation into law on July 30, 1965, and gave credit and the first Medicare card to former President Truman in his remarks at the signing ceremony, symbolic of the hard battle they both faced against the AMA on this achievement.
But it all started really with the man from Independence. And so, as it is fitting that he, President Harry Truman, as any President must, made many decisions of great moment; although he always made them frankly and with a courage and a clarity that few men have ever shared. The immense and the intricate questions of freedom and survival were caught up many times in the web of Harry Truman’s judgment. And this is in the tradition of leadership.
But there is another tradition that we share today. It calls upon us never to be indifferent toward despair. It commands us never to turn away from helplessness. It directs us never to ignore or to spurn those who suffer untended in a land that is bursting with abundance.
And there is also John Fitzgerald Kennedy, who fought in the Senate and took his case to the people, and never yielded in pursuit, but was not spared to see the final concourse of the forces that he had helped to loose.
But it all started really with the man from Independence. And so, as it is fitting that we should, we have come back here to his home to complete what he began.
And this is not just our tradition–or the tradition of the Democratic Party–or even the tradition of the Nation. It is as old as the day it was first commanded: “Thou shalt open thine hand wide unto thy brother, to thy poor, to thy needy, in thy land.”
And just think, Mr. President, because of this document–and the long years of struggle [with AMA and Republicans] which so many have put into creating it–in this town, and a thousand other towns like it, there are men and women in pain who will now find ease. There are those, alone in suffering who will now hear the sound of some approaching footsteps coming to help. There are those fearing the terrible darkness of despairing poverty–despite their long years of labor and expectation–who will now look up to see the light of hope and realization.
There just can be no satisfaction, nor any act of leadership, that gives greater satisfaction than this.
And perhaps you alone, President Truman, perhaps you alone can fully know just how grateful I am for this day.[25]
Medicare: the Fix was In
Morris Fishbein’s two greatest foes were 1) any and all competitors and 2) any form of socialized medicine programs. Fishbein’s real goal, and that of the AMA before and after his reign, was the complete political domination of the means of production (hospitals, insurance programs, governmental positions, legislative lobbying) and the ultimate control of the huge amount of money involved in healthcare industry, which is why Harper’s magazine labeled the AMA the “most terrifying trade association on earth.”
Fishbein’s successor, Robert Throckmorton, wrote in “What Medicine Should Do about the Chiropractic Menace,”[26] the goal was to starve chiropractors by limiting insurance payments. Previously in his infamous 1962 Iowa Plan, he specifically included a section to “Oppose chiropractic inroads in health insurance” so that chiropractic as a profession will “wither on the vine” and the “chiropractic menace will die a natural but somewhat undramatic death.”[27]
The Committee on Quackery (COQ) turned its guns to the US Department of Health, Education, and Welfare (HEW) and the Medicare legislation. The COQ was afraid that inclusion of chiropractors into Medicare would facilitate their inclusion into public hospitals too.
Not only was the AMA against the entire Medicare program, of course it opposed inclusion of chiropractors and all non-MDs practitioners and, once again, utilized many underhanded tactics to stymie chiropractic’s involvement in this program despite the fact that back pain continues to be one of the leading disabling ailments plaguing seniors, second only to heart disease. Keep in mind this mid-1960s political battle in Congress came at the height of the AMA’s Iowa Plan to obstruct chiropractic’s involvement in any insurance program. Much of the AMA’s clandestine efforts to sabotage chiropractic’s inclusion would not come to light for another ten years at the Wilk trial.
If healthcare coverage in America is considered bad now with nearly 70 million people non-insured or under-insured, imagine how much worse it would be if the majority of seniors had no Medicare coverage at all. If it had been left up to the AMA, Medicare would be non-existent today, leaving millions destitute and out of the current albeit expensive and flawed healthcare system.
The history of Medicare became another battlefront by the AMA to secure its position and power. Once the hospital boycott battlefront was secured, the COQ warfare on chiropractic extended from the hospitals to the battlefield over senior citizens and the Medicare/Medicaid program.
With certain minor exceptions, medical physicians were the only practitioners whose services in independent practice were initially covered under the present Medicare law. The law defines “physician” to mean a doctor of medicine or osteopathy [which explains why osteopaths were so keen to merge with MDs in the early 1960s] and, for certain of their services, dentists and podiatrists. Services of most of the practitioners included in this study are covered only if given as part of the services of Medicare-approved providers, or if provided as incident to the services of a physician.[28]
In 1967, the AMA Committee on Quackery released its anti-chiropractic Final Solution campaign goals that included blocking the inclusion of chiropractic under Title 18 of the original Medicare legislation. Once again, AMA resorted to dirty tricks to accomplish its goal to prevent the inclusion of chiropractic into Medicare that have never been revealed to the public.
Wilbur J. Cohen, secretary of the U.S. Department of Health, Education and Welfare (DHEW), was directed by Congress in 1967 to prepare a report on the inclusion of chiropractic and other non-allopathic, independent health care providers in the Medicare health care reimbursement program. [29]
Testimony later revealed this study was a “sham” engineered by biased panel members who were recommended by the AMA and appointed by the Public Health Service. Wilk trial evidence showed the AMA secretly “coached” these panel members and suggested how they should vote. In fact, the outcome was decided five months before the study commenced.
In a February 1968 letter, Doyl Taylor told Dr. Samuel Sherman, a member of HEW’s Health Insurance Benefits Advisory Council, of the need to keep the AMA’s involvement clandestine and to lie to the committee:
I’m sure you agree that the AMA hand must not ‘show’ in this matter at this stage of the proposed chiropractic study…We must guard against the possibility that HEW may decide to do only what is politically expedient and include chiropractic ‘as licensed at the state level’; or if a study is undertaken, admit chiropractic’s totally unscientific testimonials.[30] (emphasis added)
On October 2, 1968, six weeks before the chiropractors were due to testify before the Panel, Dr. John Southard of HEW told Dr. Samuel Stevens of the AMA Committee on Quackery that “Testimony by the AMA or the medical profession is unnecessary as the final answer has already been determined.”[31] (emphasis added) Months before the study actually began, Sherman assured Taylor that the final decision would be based upon chiropractic’s “lack of scientific merit.”[32]
Sociologist Walter Wardwell, Ph.D., was a participant in the sham investigation. Early on, Dr. Wardwell recognized that the 22-member committee of scholars, professionals, and businessmen assembled by the federal agency would have no actual voice in the final report, which had already been prepared by staff members of the USPHS.[33]
Another panelist, Dr. John McMillan Mennell, an expert on manipulative therapy from Jefferson Medical College in Philadelphia, also complained of receiving phone calls “indirectly, but clearly inspired by the AMA, implicitly suggesting what the tenor of my paper should be.”[34] Dr. Mennell complained of the AMA’s coaching:
“I was disturbed in the past four weeks to receive two telephone calls indirectly from, but quite clearly inspired by, the AMA implicitly suggesting what the tenor of my paper should be. I can only assure the Consultant Group that my conclusions are arrived at through my independent research, thinking and experience unaffected by extraneous pressure.”[35]
Certainly Doctors of Chiropractic should not be penalized simply because of the bitter bias of the AMA when there is substantial evidence that manipulative therapy brings relief to sufferers from mechanical pain which only manipulative therapy can relieve.[36] (emphasis added)
The final vote of the panel was four to four. This was changed, after an informal procedure, to five to three against inclusion of chiropractic in Medicare. Though it asked for a response to the charges of AMA involvement, Congress was never told:
that the results of the study had been concluded five months before the study even commenced;
that the AMA had secretly “coached” the members of the panel;
that the AMA had suggested how the panel members should vote;
‘that the AMA had provided the panel members with AMA materials; that the AMA had procured and copied confidential documents from the panel during the study,
that biased members had been selected for the panel;
that a 4 to 4 vote (changed 5 to 3) under these circumstances had supported the negative report;
that the Principles of Medical Ethics of the AMA had been considered as a barrier to inclusions of chiropractic under Medicare; and
that a HEW medical physician had been in private contact with the AMA during the study.
In December 1968, Secretary Wilbur Cohen issued a report called “Independent Practitioners under Medicare” that contained over 300 pages and covered several professions, which recommended that chiropractic coverage not be added to Medicare. The report clearly echoed the COQ’s taking points and concluded:
Chiropractic theory and practice are not based upon the body of knowledge related to health, disease, and health care that has been widely accepted by the scientific community. Moreover, irrespective of its theory, the scope and quality of chiropractic education do not prepare the practitioner to make an adequate diagnosis and provide adequate treatment. Therefore, it is recommended that chiropractic service not be covered in the Medicare program.
The panelist friends of the Committee on Quackery had successfully misrepresented chiropractic education and fostered its claim that chiropractic is an “unscientific cult.” Indeed, Doyl Taylor’s fingerprints were all over this Medicare report.
In May 1969, the chiropractic organizations responded to members of the Congress with a “White Paper” charging that the HEW report was “biased,” “wholly unreliable,” and “totally unworthy of consideration.”
They complained that HEW’s Ad Hoc Consultant Group and Expert Review Panel were dominated by medical doctors and included no chiropractic representatives. It charged that the resulting report to Congress was “fixed.”[37] When the chiropractors filed their White Paper accusing HEW of a fix, all the government documents on that study disappeared other than those reconstructed later during the Wilk trial.[38]
The White Paper charges that the report was “fixed” (1) because at least six of the eight members of the expert review panel on chiropractic and “. . . .at least twelve [of the twenty-two members of the Ad Hoc Consultant Group] were professionally or institutionally prejudiced against chiropractic — in view of the position of their professions or organizations, (2) because chiropractic observers were not permitted at meetings of the Ad Hoe Consultant Group and representatives of the chiropractic profession were not included on the expert review panel, and (3) because Dr. John Cashman, Director of Community Health Service and responsible for the staff and consultants preparing the report, was alleged to have “. . . admitted privately to a representative of the chiropractic profession that he was opposed to chiropractic before the study began.” [39]
HEW claimed every step possible was taken to prevent bias. The mere lack of any chiropractor on the panel apparently was missed by HEW. The White Paper also explained that the chiropractic organizations disclaimed any belief in the “one-cause, one-cure” theory of disease. The chiropractors made clear that the federal report misrepresented chiropractic education, noting that nearly three-quarters of chiropractic colleges at the time required a minimum two years of prior college credit before entrance to the chiropractic college. The report also set forth clear evidence that the four-year chiropractic education program devoted more time to instruction in anatomy, physiology, radiology, rehabilitation, nutrition, and public health than did the four-year course in medical school.[40]
The Department of Health, Education and Welfare subsequently published a response showing why the chiropractic response was invalid, once again reiterating the talking points of the COQ when it submitted its analysis of the “White Paper” to Congress.
HEW response to the charge by chiropractors that its report was “fixed:”
Review of the composition of the consultant groups and of their procedures during the study substantiates the fact that the study was carried out with as much impartiality and objectivity as possible.[41]
The crux of the charge of bias and prejudice in the White Paper is simply: Is “informed” opinion, such as that represented by the study’s advisory groups, inevitably “prejudiced” opinion? Can a group of prominent scientists and other persons, assigned a task such as this study, give fair and impartial consideration to the needs and welfare of Medicare beneficiaries?[42]
The White Paper also suggests that the report was fixed because representatives of the chiropractic profession were not permitted to observe at the meetings of the Ad Hoc Consultant Group. These meetings were not public hearings; they were study sessions at which the consultants, and the representatives of the professional organizations at some sessions, could explore the study issues, ask questions, and express opinions without the inhibition of being continually on public display. Hence, only staff were admitted as observers.
In the meantime, the negative report became the basic AMA public relations document used in opposing chiropractic. The AMA Department of Investigation added the panel’s negative report on chiropractic to its so-called “Quack Pack” developed by H. Doyl Taylor, a package of anti-chiropractic materials it sent to consumers and others inquiring about chiropractic.
The AMA needed the apparent “third-party” attack on chiropractic to avoid the “fairness doctrine” under which the national news services gave “equal time” to doctors of chiropractic to respond to anti-chiropractic statements coming directly from the AMA.[43]
As a result of the negative report of the panel, Congress delayed including chiropractic in Medicare for five more years until a massive public outcry to legislators on Capitol Hill in support of chiropractors. Finally, due to extensive public demand, and despite the AMA’s objections and efforts of dissuasion, Congress passed the Social Security Amendments of 1972 that, among other things, modified the Social Security Act to include chiropractic services as a covered service under Medicare (42 U.S.C.§ 1395x(r)(5), albeit in a very limited role to this day.
Medicare Mess
Chiropractic was finally included in the federal Medicare program in 1973 after thousands of chiropractic patients petitioned Congress but, as expected, chiropractors found themselves handcuffed by the AMA. The bureaucrats working at HHS, the renamed Department of Health, Education, and Welfare (HEW), found new ways to discriminate against chiropractors:
by limiting chiropractors to only adjustments of the spine.
chiropractors to this day are not paid to do examinations, ancillary treatments, x-rays, or any treatment allowed by their state laws,
chiropractors are arbitrarily limited to only twelve treatments per year per patient.
Not only were chiropractors not paid for x-rays, the Medicare law nonetheless demanded that patients could only be treated if a subluxation was detected on x-ray.
It would take another 25 years before this x-ray pre-treatment requirement would be removed as a pre-treatment impediment to chiropractic care and unnecessary radiation.
Improve Access to Chiropractic Services. If a beneficiary chooses to see a chiropractor for Medicare-covered services, Medicare currently requires that the beneficiary get an x-ray demonstrating spinal subluxation (i.e., misalignment) before beginning chiropractic spinal manipulation services. In some cases, this x-ray requirement may hinder a beneficiary’s access to chiropractic services. Effective January 1, 1998, this proposal would eliminate the pre-treatment x-ray requirement.[44]
When asked why chiropractors were so limited in the initial Medicare Act, George McAndrews related the desperate nature on both sides:
It was a combination. The DCs badly wanted in. When they got in it was limited to “subluxations”. The MDs went nuts since there was no MD that could detect a subluxation since they denied they even existed. Hence the MDs got the additional language “demonstrated by x-ray to exist.” For years, requests for payment were routinely denied since the MD claimed he or she could not see it on the x-ray submitted. After many years all good folk agreed that this hopelessly increased radiation exposure and needlessly increased costs for the patient since the x-ray was not covered. The x-ray requirement thereafter was removed.[45]
Political medicine was not happy that chiropractors had any role in Medicare, so slowly but surely the medical war intensified as medical bureaucrats HHS took other steps to undermine chiropractic in Medicare, most notably, under the direction of Secretary of Health and Human Services Donna Shalala who was appointed by President Clinton in 1993 and served for eight years. Keep in mind none of these new attempts to thwart chiropractic came from the public or from Congress.
The most damaging salvo fired by the medical bureaucrats at HHS began in the early 1990s when no steps were taken to force Medicare HMOs to provide the legally mandated service of chiropractic care.[46] Instead, as closed-panel managed care groups entered Medicare, the use of chiropractic services began dying out when these Medicare officials arbitrarily decided that any health provider could provide the chiropractic benefit.
This fight concerned Medicare Part C, which came into existence with the passage of the 1997 Balanced Budget Act. Part C was essentially Medicare’s managed care plan, administered by the Health Care Financing Administration (HCFA), department of Health and Human Services.
The ACA’s suit against HHS was originally filed in November 9, 1998 in response to then-new HHS guidelines that essentially excluded chiropractic services from the Medicare managed care program. Specifically, the guidelines allowed managed care plans that belonged to the Medicare+Choice program to substitute the services provided by doctors of chiropractic, including the ability to perform “manual manipulation of the spine to correct a subluxation.”[47] Under Shalala HHS issued a formal “Policy Letter” proclaiming physical therapists, MDs and DOs could perform the service.
“If this regulation is implemented, chiropractic is basically threatened with elimination from the Medicare Part C program,” said Tom Daly, the ACA’s legal counsel.[48] In Mr. Daly’s estimation, the Medicare Part C program “is in fact the future of Medicare. If the language goes through as it is currently written, chiropractic will be nothing more than a potential option” for Medicare plans.
Another blow to chiropractors happened when many Medicare managed care groups (MCOs) implemented medical gatekeepers to enforce a “medically necessary” rule causing utilization of the chiropractic service to drop dramatically. Certainly these medical gatekeepers would never refer to chiropractors, but Sec. Shalala at HHS saw no problem with that.
The HHS Inspector General was ordered by Congress to perform a survey and reported that Medicare gatekeepers reduced usage of the chiropractic service by 85 percent and that 20 percent of HMOs never used a chiropractor. Before managed care organizations like PPOs and HMOs began as a result of the Clinton Health Care Act of 1993-94, a significant number – three-times – of senior citizens freely chose chiropractors.
A report filed with Congress by the Office of the Inspector General (OIG) on January 13, 1999 showed that 29 percent of the Medicare managed care plans were using physical therapists to provide manual manipulation to Medicare enrollees under the 1994 policy letter. The study also revealed that of the four Medicare managed care organizations surveyed, their average percentage of beneficiaries receiving chiropractic care was only 1.55 percent, down sharply from the Medicare fee-for-service utilization of 4.15 percent.[49]
Specifically challenged was an Operational Policy Letter published by Medicare’s Center for Beneficiary Choices in 1994, which stated, among other things, “Managed care plans contracting with Medicare are not required, however, to offer services of chiropractors, but may use other physicians to perform this service. In addition, managed care plans may offer manual manipulation of the spine as performed by non-physician practitioners, such as physical therapists, if allowed under applicable state law.”[50]
“The infamous policy letter (of 1994) gave the green light to Medicare HMOs 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,’” explained ACA President Dr. Daryl Wills. [51]
Without question the most ironic, hypocritical, and disingenuous regulation in Medicare by the Health and Human Services bureaucrats under Sec. Shalala was the decision that the unique and hard fought right for patients to have access for chiropractic care could be supplied by those whose associations that were diametrically opposed to it – medical physicians and physical therapists.
This ploy was reminiscent to the tactics of Morris Fishbein MD, former AMA executive director, when he wrote in 1925, “Scientific medicine absorbs from them that which is good, if there is any good, and then they die.”[52] And chiropractic nearly died when the Medicare MCOs began using gatekeepers and substituting PTs for chiropractors. Indeed, Roger Throckmorton’s goal to have chiropractic wither on the vine was nearly accomplished in the Medicare program with the help of Sec. Shalala and the medical bureaucrats in HHS.
The ACA filed its lawsuit against HCFA’s Medicare Part C regulations. Part C is Medicare’s managed care plan that allows MDs and PTs (in lieu of chiropractors) to perform spinal manipulations to correct subluxations.
According to the ACA’s General Counselor, George McAndrews, he explained the irony of the HHS bureaucrats’ actions with chiropractic: “They do this against a very suspicious background” after years of telling the world that chiropractic is quackery, suddenly the medical professionals claim they can perform this treatment.
“During the Wilk case, it became obvious that the public health officials associated with the department at that time (Health Education and Welfare, which today is Health and Human Services) were fully aligned with the AMA’s program to eradicate chiropractic. They worked to prevent chiropractic from being included in Medicare in 1965. In 1968, a report to Secretary Cohen was made after what Congress thought was an unbiased study on chiropractic. The proof is, and we had plenty evidence of it during the Wilk trial, that the AMA and other medical groups worked to fix that report so that it was absolutely negative to chiropractic. Chiropractic did not get into Medicare until 1972.[53]
“We have collected the legislative history of that (Medicare), which was completely unknown at the time, and exactly how the language got into the statute. The language was very limiting. The language said chiropractors will be considered physicians in Part B of Medicare to the extent that they manipulate the spine to correct subluxation shown on x-ray to exist. Both the ACA and ICA objected to that narrow language, but it went through. The purpose of that narrow language was to restrict chiropractic.
The language went so far as to require payment for the required x-rays. That language was included to act as an entry barrier for senior citizens wanting chiropractic.
In 1972, medical physicians characterized the subluxation complex utilized by chiropractors as sheer quackery: a figment of the imagination. By putting “subluxation” in the Medicare legislation, we intended it to be a chiropractic benefit for senior citizens that would only be available from doctors of chiropractic. From 1965 to 1972, we find that the osteopaths didn’t use the term subluxation. They used spinal or osteopathic lesion. The osteopaths had their own philosophical basis for the term, connotation and explanation.
In the medical literature going back to 1960 to 1972, we find physiatrists like John McMillan Mennell, MD, who manipulated the spine to correct a ‘joint dysfunction.’ The medical literature and the testimony in the Wilk case was that a subluxation to the medical world was less than a luxated vertebra. Tongue and check, I would say when you have a luxated medical vertebra, you’re like Christopher Reeve, you’re no longer mobile.
So the benefit was not only for chiropractors limited to spinal manipulation, but spinal manipulation to correct a subluxation demonstrated by x-ray to exist. The ACA in 1997 got the Congress to remove the requirement for ‘demonstrated by x-ray.’ But the statute still says ‘manipulation to correct a subluxation.’ That is chiropractic language. Nobody else is trained to do it. The medical and osteopathic world denies that the subluxation complex exists, and if you go back to 1972, they called it ‘sheer quackery.’
This is important because today the medical profession is now announcing (and they have since 1994, but now they’re coming out very clearly) saying that HMOs can deliver the chiropractic benefit by using osteopaths, MDs, and PTs. They do this against a very suspicious background.[54]
The ACA alleged that the new guidelines:
unlawfully permitted non-chiropractors to perform manipulation of the spine in an attempt to correct subluxations. In addition, the ACA alleged that HHS policies
unlawfully permitted managed care organizations to require a referral by a primary care physician before a Medicare patient could visit and receive manual manipulation of the spine to correct a subluxation from a chiropractor, and that
the department had failed to ensure that managed care organizations properly allocate portions of monthly, predetermined sums they received from Medicare to cover manual manipulation of the spine to correct a subluxation. [55]
In response to a Sept. 2, 1999 motion by the Department of Health and Human Services (HHS) to dismiss the American Chiropractic Association’s lawsuit against the Health Care Financing Administration (HCFA), the ACA filed a briefing memo on Nov. 8, 1999 in the U.S. District Court, Washington, D.C.
In its briefing memo, the ACA made these main points:
HCFA’s failure to carry out the will of Congress and ensure the availability of chiropractic care to millions of Medicare beneficiaries is a remnant of the illegal boycott of the chiropractic profession begun by the AMA decades ago.
HHS’ contradictory statements about physical therapists’ ability to do spinal manipulation to correct subluxation under Medicare is “stonewalling” and “bureaucratic gibberish.”
The collusion between HHS and the AMA took the form of a “direct challenge to the authority of Congress.”
Almost immediately after the ACA filed suit, HHS attempted to have the lawsuit dismissed. A federal judge denied the department’s claim in July 2000, asserting that “the alleged injuries suffered by ACA members are fairly traceable to the Secretary’s (of HHS) conduct,” and that “the alleged injuries suffered by ACA members are likely to be redressed by a favorable decision in this case.”
Soon after the judge’s ruling, the HHS petitioned the court once again, however, on Jan. 22, 2001, the District Court again ruled in favor of the ACA, allowing the association to bring its claim before the federal bench.
According to Mr. McAndrews:
We are going to demand that secretary Shalala (HHS and HCFA) either submit the report ordered by Congress, or explain why they haven’t over the past nine years. We believe the public health officers at HCFA believe that if they stall long enough, the HMOs will respond that they all give a chiropractic benefit, but they do it using PTs under prescription order from MDs and osteopathic physicians.
The Medicare language will obviously hurt the profession. It will eradicate the concept of subluxation, and our philosophical basis for subluxation. It will certainly hurt the individual chiropractor, because theoretically it could eliminate chiropractors from access to any HMO, particularly if HMOs think they can use the Medicare language with the captive PTs under the direction of gatekeeper MDs. More importantly, it will do incalculable damage to senior citizens who outside of the HMO network have grown used to using doctors of chiropractic who are uniquely trained to detect and correct subluxation.[56]
The red tide of the HHS resistance began to turn after Donna Shalala’s departure from HHS with the election of George W. Bush and her replacement with Sec. Tommy Thompson. On January 15, 2002 there was a revision to an “Operational Policy Letter” originally issued in 1994 in which Medicare’s Center for Beneficiary Choices wrote: “The (Medicare) statute specifically references manual manipulation of the spine to correct a subluxation as a physician-level service. Thus, Medicare+Choice organizations must use physicians, which include chiropractors, to perform this service. They may not use non-physician physical therapists for manual manipulation of the spine to correct a subluxation.” [57] (emphasis added.)
“The ACA is extremely pleased that Secretary Tommy Thompson and his department have formally recognized the unfairness and injustice to doctors of chiropractic and their patients that the 1994 operational policy letter imposed,” said ACA Chairman Dr. James Edwards. [58]
The ACA contended that when HHS saw the data collected in 1991-1992, it realized that Medicare MCO’s gatekeepers had “deprived senior citizens of chiropractic services and had misdirected millions (possibly hundreds of millions) of taxpayer dollars away from the chiropractic profession and its patients.” The ACA’s position was that HHS “determined to suppress this information and not submit the require report to Congress. … the failure to submit the report was not an oversight but was the direct result of HHS’ collusion with the AMA’s illegal boycott.” [59]
The medical bureaucrats in HHS fought back and on October 14, 2004, the ACA suffered what many considered a mortal legal blow when District Judge John Garrett Penn granted HHS a motion for summary judgment in the case. Judge Penn’s ruling essentially dismissed the ACA’s case on the grounds that the U.S. Congress did not intend for only doctors of chiropractic to provide manual manipulation of the spine to correct a subluxation when the Medicare program was established in 1972.[60]
Apparently this judge was oblivious to the long fought medical war or else he would have known that manipulation of the spine had, in essence, become the sole domain of the chiropractic profession by default of osteopaths’ merger with the AMA.
The ACA then filed a notice of appeal with the U.S. Court of Appeals for the District of Columbia, with George McAndrews leading the appeal.
In its Dec. 13, 2005 decision, the three-judge appeals panel overturned the District Court’s ruling, noting that the District Court lacked the jurisdiction to decide whether medical doctors and osteopaths may manipulate the spine to correct subluxations. The appeals panel also raised an important point on the issue of which health care providers are qualified to provide chiropractic services, not just which providers are licensed to provide such services:
“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 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.”[61]
Then-ACA President Richard Brassard, DC, remarked about this decision;
The ACA is extremely pleased that the District Court’s ruling allowing MDs and DOs to provide a uniquely chiropractic service was nullified. 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.[62]
Today, the Medicare situation is at a standstill due to the AMA’s litigation: the current policy of Medicare has no gatekeepers for chiropractic care, no pre-treatment x-ray requirement, and manual manipulation of the spine can be done only by a qualified physician or chiropractor. Unfortunately, chiropractors are still subject to review after 12 office visits and they are still not paid for exams, ancillary treatments, or x-rays.
ACA President Dr. Donald J. Krippendorf commented:
While we are understandably disappointed in the judge’s decision, we take pride in the fact that our lawsuit has already put an end to years of discrimination against doctors of chiropractic and their patients. Before we filed our lawsuit, 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. We strongly believe that we owe it to our patients – and have a strong legal basis – to continue our battle in an effort to prohibit medical doctors and osteopaths from correcting subluxations, a service that is uniquely chiropractic. [63]
Dr. Krippendorf also noted the “monumental victories for Medicare patients” already achieved through the lawsuit, including: compelling the government to prepare and release a study showing the virtual elimination of chiropractic services to Medicare beneficiaries entering the Medicare managed care system; prohibiting federal payments to physical therapists providing manual manipulation of the spine to correct a subluxation to Medicare patients; and mandating that all Medicare managed care plans must make available and pay for manual manipulation of the spine to correct a subluxation.[64]
The Blues Boycott
Although chiropractic by 1973 had gotten limit participation in Medicare, it did not end the boycott of chiropractors from national health care insurance plans. In fact, this clandestine effort continued for years until the American Chiropractic Association filed another lawsuit to end this economic boycott. The Wilk testimony exposed this clandestine effort to see chiropractors wither on the vine, but it did nothing to stop this goal of the AMA that continues to this day with harsh restrictions on chiropractors unlike other health professionals.
In fact, evidence from Wilk revealed that chiropractic had been a target of discrimination by Blue Cross/Blue Shield plans, an insurance program developed by medical physicians that worked with the AMA to boycott chiropractors in conjunction with defendant Doyl Taylor who was revealed at trial to be the “ghostwriter of the Health Insurance Association of America’s anti-chiropractic position statement.”
An internal HIAA memorandum of February 19, 1969 between BC/BS executives 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. (emphasis added)
Nonetheless, the AMA worked with the Blue Shield Association to restrict insurance payments to doctors of chiropractic.
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.) (emphasis added)
Blue Shield also moved to circumvent state insurance equality laws. The exclusion directed at doctors of chiropractic was cleverly done by defining exactly what they did without naming them.
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.
The loophole came from the phrase 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.” So they simply excluded this service done by both MDs and chiropractors, but since MDs did not do spinal manipulation, there was no outcry from MDs.
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. (emphasis added)
More trial evidence revealed that Blue Shield avoided making insurance payments to chiropractic patients even where required by state law. According to a “Survey of Blue Shield Plan Payment Policies Regarding Non-MD Providers…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.”
Trigon Travails
While the Medicare warfare was at its height, BC/BS opened another battlefront in Virginia with an affiliate, Trigon BC/BS that had a blatant anti-chiropractic policy. The economic policies adopted by Blue Cross/Blue Shield plans in the 1990s were intended to limit and contain the range of chiropractic reimbursement despite the growing public recognition and acceptance of chiropractic treatment.
Specifically, the Trigon policy included:
1. paying chiropractors 40 percent less than medical doctors for the same services identified with the same CPT codes;
2. “bundling” payments for the new CMT codes by only paying the cheapest code, no matter how many levels of the spine were treated, and no matter what level code was identified by the chiropractor for other services;
3. applying an arbitrary $500 cap on manipulation services provided by chiropractors; and
4. failing to pay for the services rendered by chiropractic assistants while paying for services rendered by medical assistants.
The American Chiropractic Association, eleven of its Virginia members, and fifteen patients filed an antitrust lawsuit against the policies adopted by Trigon Blue Cross/Blue Shield of Virginia.
According to the ACA’s attorney Tom Daly:
The above items of economic discrimination shared common features with policies adopted by Blue Cross/Blue Shield plans in other states. These policies, written and drafted with the cooperation exclusively of medical competitors with no chiropractic input, 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 examinations, management, or physical therapeutics services into the manipulation treatment 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.
Trigon’s actions were particularly glaring in light of the recent advancements regarding chiropractic care in the 1990s. 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 education 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 neuromusculoskeletal system. The study was re-evaluated and later revalidated in a report issued in April 2002.
Perhaps the most outlandish deception by Trigon was its re-writing of the AHCPR guidelines on acute low back pain in adults. Not only intellectually dishonest, the revision was a blatant affront to the USPHS and every spine researcher in the country who participated in this extensive research-based guideline.
Although the federal government’s AHCPR “Clinical Guidelines” on acute low back pain in adults were freely available, Trigon and its co-conspirator medical doctors and medical associations actually rewrote the federal guidelines to create “provincial” guidelines that specifically omitted the recommendations of chiropractic manipulation, in an attempt to prevent more referrals to chiropractors.
“They changed the critical definition of manipulation,” stated McAndrews. “The evidence is that they weren’t trained in [manipulation]. It was panic time.”
McAndrews continued by saying that the “new” guidelines, co-authored by members of the Virginia medical physician trade associations and medical schools, directed low back patients away from chiropractors and toward MDs – conspiracy at the highest level.
“To say there is no conspiracy here is to ignore reality,” according to McAndrews.
The AHCPR guidelines, issued in 1994, were generally recognized by major newspapers throughout the country as clearly a boon to chiropractors because of its endorsement of spinal manipulation by the USPHS as the “most effective and cost-effective treatment for acute low back pain” as referenced in the Annals of Internal Medicine, July 1998.
According to Dr. Scott Haldeman, MD, DC, PhD, a recognized authority and a member of the AHCPR panel, Trigon’s revision of the guidelines corrupted the AHCPR guideline:
By omitting the AHCPR’s definitions of manipulation, Trigon and its Managed Care Advisory Panel materially altered the recommendations of the AHCPR. That alteration created a Trigon guideline that did not recommend the manipulation that is provided primarily by doctors of chiropractic as did the AHCPR Guidelines. A point that became evident from the AHCPR guidelines was that manipulation was the only treatment approach that required a medical physician, in most instances, to make a referral of a patient with uncomplicated low back pain. The inevitable, and obviously intended, consequence of Trigon’s and the Managed Care Advisory Panel’s alteration of the AHCPR guideline, is to deprive patients of the benefit from spinal manipulation as practiced by doctors of chiropractic, and to deprive doctors of chiropractic of the opportunity to treat those patients. (emphasis added)
In the ‘70s and ‘80s chiropractic’s challenge was to turn back the illegal “ethical” boycott against the profession reflected in Wilk. The challenge in the 1990s was to turn back the economic boycott.
Tom Daly, ACA general counsel, said, “The ACA v. Trigon is the best and most effective means to meet that challenge by drawing a ‘line in the sand’.”
At stake is whether any insurance plan or managed care organization will have the ability to selectively discriminate against chiropractic services and patients.
According to Mr. Daly:
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.
The continued viability of the chiropractic profession under current and future reimbursement systems of all types rested on whether or not the ACA would prevail in this case. However, chiropractic suffered a setback on April 25, 2003, when U.S. District Court Judge James Jones dismissed the suit before going to trial, stating, “After careful review of the summary judgment record, I find that the intracorporate immunity doctrine bars the majority of the plaintiffs’ conspiracy allegations in this case because Trigon, as a matter of law, cannot conspire with its employees and agents.
On February 24, 2004, George McAndrews argued to the three-member panel of the Richmond, Virginia U.S. Court of Appeals, 4th Circuit. that the ACA’s lawsuit against Trigon Blue Cross/Blue Shield, dismissed by U.S. District Court Judge James P. Jones on April 25, should return to court for trial.
Attorneys for Trigon used their allotted time to reiterate their contention that there is no evidence of a conspiracy, that as a for-profit company Trigon had the right to make any business decision it deemed appropriate, and, most inexplicably, that doctors of chiropractic should receive less for the same services performed by medical doctors because DCs are not as highly trained.
On the issue of lower pay provided for doctors of chiropractic compared to those of medical doctors (for the same services delivered), when the folks at Trigon were confronted with the leading studies presented as evidence in the Wilk trail showing the superiority of chiropractic care in the treatment of neuromusculoskeletal conditions and were asked to provide any contrary study to justify their actions, they failed to provide any study to the contrary.
However, they relied on the greater expense for the education of medical doctors compared to chiropractors to justify their discriminatory actions.19
According to Anthony Rosner, PhD:
This evidence appears not to have amounted to ‘jack.’ Let me see if I can extrapolate this correctly. Does this mean that the owner of a Cadillac is entitled to higher social-security benefits because he or she spent more than someone who happens to possess a Toyota? Is there some rebate program for more costly education (which, by the way, we know offers no more hours in the basic sciences20 and decidedly poorer training in musculoskeletal conditions21-23) that I’m overlooking here?
George McAndrews also pointed out the inconsistency of Trigon’s argument:
Trigon argued that it had no economic motivation to harm chiropractors or steer patients to medical doctors and away from chiropractors. (A1247-48) Trigon acknowledges that its largest cost category is payments to healthcare providers (A1245) Trigon elected to pay chiropractors 40% less than MDs for the identical service notwithstanding chiropractors’’ superior skills in these areas. Chiropractors were the only one of five physician groups recognized by Trigon that suffered this unjustified reduction. (A6295-96)
If Trigon were motivated only by economic concerns, why would it pay medical doctors more to provide inferior care than it pays chiropractors who provide better care? The fact that Trigon paid medical doctors more demonstrated that Trigon was not making an independent economic judgment. It was making a collusive judgment in combination with medical doctors. The collusion is further shown in what follows when Trigon actually re-wrote the guidelines!
McAndrews also provided the Court with an official 81-page document that outlined the rationale for the appeal, including “overriding error on the part of the district court” concerning actions such as:
“entering summary judgment against appellants on a record replete with factual issues”;
“misinterpreting several statutes and well-established precedents”
“precluding discovery in this public and private interest lawsuit of the scope, context, and history of the conspiratorial actions of Trigon and the competitive Virginia medical societies in restraining competition with chiropractors”; and
“treating this case as though it involved ‘cultural bias,’ rather than raw economic power disseminated through a conspiracy.”
Mr. McAndrews related a rather perplexing story when he was asked by the judge, James P. Jones, in the ACA v. Trigon lawsuit, “Why do you think they (MDs) don’t want to refer?” Mr. McAndrews replied:
“Economic greed. Seventy percent of back pain dollars go to MDs. They want to prevent the slippage of that excess money from going over to chiropractors, and [the insurance company] is nothing but the agent of the economic competitors, the medical physicians.”
The judge said again, “You don’t understand my question. Why don’t they want to refer? They’re trained in school to refer. They refer to everybody.” McAndrews said, “No, they refer within the medical model, because it’s ‘I scratch your back, you scratch my back.’”
He said, “You’re not understanding me. Why don’t they refer?”
McAndrews responded again: “Because they have been told not to refer to chiropractors, and if MDs don’t refer to chiropractors, MDs make more money just by keeping the patients in the medical model, rather than the chiropractic model.”
He replied: “But Mr. McAndrews, that sounds to me like a cultural discrimination, rather than an economic one. And I understand your point that the medical profession has not sufficiently at all recognized the superior advantages of chiropractic, but again, it sounds more like a cultural or educational deficiency.”
The judge was correct that the AMA’s refusal to refer to chiropractors is both a cultural and educational problem, but it is also a political problem. Principle 3 of the Medical Code of Ethics is too well-ingrained in the medical mindset to be forgotten. Although it may take 17 years for new technology to be implemented in medicine, for over 100 years the medical profession has demeaned and marginalized chiropractors. Despite the successful lawsuits and research findings, medical chauvinism and greed still predominate in the American health care system.
The Trigon action to use medical gatekeepers to boycott chiropractors and then to pay inferior practitioners 40% more to render the chiropractic service is another example of the policy of Morris Fishbein when he wrote in 1925: “Scientific medicine absorbs from them that which is good, if there is any good, and then they die.”
In June, the American Chiropractic Association (ACA) and the Virginia Chiropractic Association (VCA) announced that they would petition the U.S. Supreme Court to hear their lawsuit against Trigon Blue Cross/Blue Shield. On Oct. 8, 2004, the nation’s highest court denied that petition, effectively ending the suit, which had previously been dismissed by the U.S. District Court (Western District of Virginia) and the U.S. Court of Appeals, 4th Circuit.
According to the ACA’s attorney, Tom Daly:
We were not able to pursue the other objectives under the antitrust laws due to an initial and curious ruling by the trial court that the relationship between Trigon BC/BS and the Virginia Medical Association constituted “intra-corporate” activity and therefore not subject to the application of the federal antitrust laws. Given the potential costs of an appeal and the significant achievement won with the federal plan inclusion, the ACA decided to the pursue matter with Congress and not with the federal appellate courts. The result of that decision is the non-discrimination provision contained in the Patient Protection and Affordability Act recently passed by Congress and signed by the President.
Just over a year later, on May 6, 2004, the U.S. Court of Appeals, 4th Circuit, voted unanimously to dismiss the suit, and on June 2, rejected a petition to rehear the case. In June, 2004, the American Chiropractic Association (ACA) and the Virginia Chiropractic Association (VCA) announced that they would petition the U.S. Supreme Court to hear their lawsuit against Trigon Blue Cross/Blue Shield. On Oct. 8, 2004, the nation’s highest court denied that petition, effectively ending the suit, which had previously been dismissed by the U.S. District Court (Western District of Virginia) and the U.S. Court of Appeals, 4th Circuit.
While the court’s latest decision is a significant blow to the ACA’s legal efforts, some significant accomplishments have resulted from the lawsuit. Blue Cross Blue Shield recently added a new chiropractic benefit to the Federal Employee Health Benefits plan, which is worth an estimated $140 million per year. In addition, ACA has been instrumental in forming the Blue CcHIP (Clues/Chiropractic Clinical Healthplan Program), a liaison program that has allowed doctors of chiropractic to become part of local Blue Cross Blue Shield policy-making committees across the nation.
“These victories did not come by accident,” explained Dr. Krippendorf. “They are substantial benefits derived from the support we’ve received from so many in our profession who want what is best for chiropractic … We remain dedicated to protecting the rights of doctors of chiropractic, and we will do what we believe is the next right thing to do.”
Finally, in October 2004, the U.S. District Court ruled that since MDs and DOs had universal (plenary) licenses, they were qualified to deliver the service and act as gatekeepers for the medical necessity of the chiropractic service.
The ACA appealed, and on Dec. 13, 2005, the U.S. Court of Appeals for the District of Columbia in Washington ruled the District Court had no jurisdiction to render the decision approving the use of MDs and DOs to render the chiropractic service.
The Appeals Court also outlined the administrative route chiropractors and their patients should use, particularly in those 20 percent of Medicare HMOs that do not use any chiropractors, to have the issue of “qualifications” determined. A point not to be missed is the emphasis placed on “qualified” rather than “licensed,” which opens up new avenues of education and expression for the chiropractic profession.[65]
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.[66]
“The Trigon lawsuit may be over, but that is hardly the end of the story,” said ACA President Donald Krippendorf, DC, after learning of the decision. “We’re sending a loud and clear signal to the insurance industry that when it comes to abusive practices that discriminate against chiropractic, the battle is just beginning.”[67]
ACA officials say that they will continue an “aggressive legal campaign to curb practices by insurers that harm chiropractors and their patients,” and that they are examining how the court’s ruling may be used to address a wide range of current reimbursement issues facing the chiropractic profession. They are also exploring the impact of the Racketeer Influenced and Corrupt Organizations Act (RICO) ruling contained in the Court of Appeals’ decision. The association may consider filing RICO-related lawsuits against insurance industry targets in the future.
Despite the legal setback, the Trigon action resulted in many benefits for chiropractors and their patients: [68]
As a direct result of the Trigon Blue Cross/Blue Shield lawsuit, millions more Americans now have greater access to chiropractic care and hundreds of millions of additional dollars are being reimbursed for chiropractic care. In January 2002, the Blue Cross/Blue Shield Association began covering chiropractic care within its Federal Employee Health Benefits plan. This plan covers 3 million employees and 9 million dependents, and is worth an estimated $120 – $140 million per year.
As a direct result of the Trigon lawsuit, Blue Cross/Blue Shield extended its chiropractic coverage in its Federal Employee Health Benefits plan by including an extra benefit for physical therapy services within the plan.
As a direct result of the Trigon lawsuit and the actions of BC/BS, one state physical therapy association said this about its impact: “In the eyes of Blue Cross Federal Employee Plans and First Source Plans, chiropractors are actually physician-level physical therapists. In fact, they are reimbursed for performing physical therapy evaluations as well as all of the 97,000 CPT procedures. The National Chiropractic Lobby [ACA] is taking this same argument to courts all over the country to compel the insurance carriers to reimburse chiropractors for ‘physical therapy.’”1
As a direct result of the Trigon lawsuit, the Blue CCHiP program (Blue/Chiropractic Clinical Healthplan Integration Program) was launched. It is a liaison program between BC/BS and the ACA that has allowed doctors of chiropractic to become integrated into local Blue Cross/Blue Shield policy-making committees and has addressed many problems chiropractors face on a day-to-day basis with local Blue Cross/Blue Shield plans.
As a direct result of the Trigon lawsuit, Blue Cross/Blue Shield and the ACA began to work cooperatively to improve chiropractic recognition and coverage in BC/BS plans nationwide – plans that cover 88 million lives.
As a direct result of the Trigon lawsuit, a warning was sent to medical doctors, hospitals and insurance companies that they too might be subjected to civil racketeering charges should they conspire to injure competition with chiropractors.
As a direct result of the HHS lawsuit, HHS Secretary Thompson ruled that physical therapists cannot be reimbursed for providing the chiropractic benefit under Medicare!2
As a direct result of the HHS lawsuit, the Department of Health and Human Services reversed its prior policy letter to clearly state: “As a standard Medicare Part B benefit, manual manipulation of the spine to correct a subluxation must be made available to enrollees in Medicare+Choice plans.”2 This important policy change made the chiropractic benefit available to Medicare beneficiaries enrolled in those plans.
The legal battles with HHS and Trigon certainly helped to stop the complete economic withering of the chiropractic profession, but it can certainly be said that chiropractors are still on a lean diet with the many restrictions placed upon their care.
Furthermore, workers’ compensations panels still exclude chiropractors, the military health services still limit chiropractors for its active personnel, and the VA program sparingly refers to chiropractors after a long battle with Congress.
After years of fighting for the implementation of chiropractic into the military and the VA health services, research showed the huge demand and need for chiropractic spinal care. Injuries and musculoskeletal disorders (MSDs) resulted in more soldiers missing time from work than any other health condition. In the Army, for example, “the combined categories…accounted for slightly more than 30 percent of all hospitalizations in 1992. MSDs, among all groups of disorders, resulted in more soldiers missing time from work than any other health condition.”[1]
A 2010 Johns Hopkins study found that the top reasons for medical evacuation from Iraq and Afghanistan are musculoskeletal and connective tissue disorders, not combat injuries. Researchers examined the records of more than 34,000 military personnel evacuated from Iraq and Afghanistan between January 2004 and December 2007. They found that 24 percent of the service members had musculoskeletal or connective tissue disorders, compared to 14 percent who had suffered combat injuries.[2]
Now the military health services, the Department of Veterans Affairs Medical Centers has thirty clinics with MDs and DCs working cooperatively, as well as the Department of Defense that has multidisciplinary services in more than fifty clinics throughout the nation, including the Bethesda Naval Hospital. Chiropractors are also now on staff in the US Capitol building to take care of Congressmen and the Supreme Court members.
The DoD now commissions DCs in the Military Health Services. This came about after a 5 year Demonstration Project for Chiropractic that suggested as much as $26 million and 199,000 lost work days could be saved if chiropractic care were included system-wide in the military healthcare system.
In testimony before former Sen. Nunn’s Armed Services Committee, the DoD admitted that 20% of their disabled vets came from low back pain, and recent research indicates that 30% of hospitalizations were for low back pain. According to research done in 2000 by Johns Hopkins, Unintentional and Musculoskeletal Injuries Greatest Threat to Military Personnel, “…in all three branches of the service, injuries and musculoskeletal conditions still adversely affected the health of service members and troop readiness more than any other single diagnosis.”
Workers’ Comp & Other Sordid Stories
As a chiropractor working in Georgia for over twenty years, I’m amazed how few workers’ comp injuries I’ve taken care of, especially considering that supposedly the majority of all on-the-job injuries are musculoskeletal disorders such as low back, carpal tunnel and neck problems according to OSHA stats.
First of all, sooner or later most chiropractors discover the hateful attitude workers’ compensation (WC) insurers have toward us. For example, I once had a lady patient with a bad sacroiliac who was initially sent to her MD gatekeeper who drugged her and, when that did not help, he referred her to a surgeon. He recommended lumbar surgery, which I found odd considering her ailment was her SI joint, which has no disc cartilage to herniate anyway. So, she came to see me instead, which was odd considering the federal base rarely refers anyone to a chiropractor.
After only a few times treating this lady, one day the Big Nurse from Workers’ Comp came visiting, asking about ‘her’ case. It was obvious this Big Nurse had an attitude about chiropractors since she growled at me when I met her. She demanded to see her x-rays as if she thought we might be fooling her, I imagine.
After a few more glares and growls from her, I finally asked her why she was so negative about chiropractors.
“Well,” she answered, “if you go to a chiropractor, you have to keep going too much. But if you go to a surgeon, you only have to go once.”
After my mouth dropped open to the floor, I felt compelled to answer her logically, which was my first mistake because as I’ve found, there’s little logic to the medical management of back problems.
“Ma’am, I can prove to you that chiropractic care is faster, safer, cheaper with longer-lasting results than anything the medical world has to offer,” I said while proudly holding my book, How to Avoid Back Surgery. “And what makes you think back surgery is the answer when the AHCPR says only one in 100 back problems are helped with surgery? Plus, for the cost of one back surgery, I can give this patient lifetime care.”
Of course, she was unaware of either the AHCPR guideline or the facts in my book. Her only resource was the institutional bias within the WC insurance group where she worked. Not only is the Jim Crow, MD, attitude prevalent in most insurance companies, as I’ve found out from sources, the workers’ comp industry works on the perverse motivation if they pay out more, they can charge more in premiums, so “there’s more money for everyone,” as I was informed.
Obviously in this type of system, there is no motivation to lower costs whatsoever.
Again, chiropractic is too cheap to interest WC companies, and for me to brag about being better, faster, and cheaper is not appealing to these moguls who prefer higher expenses via surgery so they can charge more in premiums. And every business owner knows that WC insurance is the most expensive of all. Now we know why.
As a taxpayer, it annoys me that WC ignores the cost-savings of chiropractic care for the epidemic of back injuries, as an employer it further maddens me that my WC premiums are higher than they ought to be, and as a chiropractor I’m peeved at the distributive injustice of being virtually boycotted by the WC program, especially when I discovered the fraction of WC money being allocated to DCs.
Get a load of these 1997 facts taken from the Workers’ Compensation web site (www.ganet.org/sbwc/about/) in Georgia, my home state:
Physician Benefits: $70,066,443
Hospital: $72,755,936
Physical Therapy: $13,410,394
Chiropractic: $488,027
Shocking, isn’t it? Of this subtotal for hospital and provider (MD, PT, DC) expenses, $156,720,800, chiropractic incurred only $488,027, which equates to less than 1% of these costs; actually it figured out to be 0.3%. Again, considering back problems are the leading on-the-job injuries, isn’t it very strange that we back experts are paid for less than one percent of these monies?
The ACA’s lawsuit against HCFA for cutting us out of the Medicare pie revealed that chiropractic’s utilization rate for Medicare managed care plans was only 1.08% in 1998, and for Medicare fee-for-service during the same period was a mere 4.15% to 4.42%; overall, chiropractic services among the American public is 6.5%.
As Dr. James Mertz, president of the ACA, said, “This report drives home the fact that the Medicare managed care patients are systematically being denied access to doctors of chiropractic…DCs are obviously being discriminated against in these plans…”
It appears that the same conclusion can be drawn from the WC stats here in Georgia, but no one in either state association seems to be concerned, at least nothing seems to be happening to correct this institutionalized discrimination.
Not only is this paltry amount of less than one-half million amazing, but so too is the average cost of a case: $8,012, and the average settlement per case is $9,476. Accounting for all the WC expenses, the Total Payments All Cases was $432,638,094; almost a half-billion dollars alone on WC cases and this is down from the 1994 total of $779,327,793, in which DCs incurred $1,081,636, which equates to 0.13%, again less than one percent. In three short years, the WC corps was able to cut chiropractic claims by over 50% with their virtual boycott of our care for injured workers. And some people wonder why I claim there is no free enterprise in health care matters?
Just as we have seen with the blatant discrimination by Medicare gatekeepers keeping patients out of chiropractic offices via institutionalized bias, now we see the same thing in the WC industry. Since injured patients are relegated to a panel of physicians, one of which in Georgia must be an orthopedic surgeon, very few DCs are on these panels. When I have suggested to patients who own their own businesses about getting placed on WC panels, I am told that they have no choice in the matter since the WC insurance company tells them who to use. Who says we do not have socialized medicine already?
While we DCs see this as blatant discrimination on one hand, on the other hand we may have ourselves partly to blame as well. Over-utilization of unnecessary tests and treatments, over-charging, confusing diagnosis, prolonged programs of care, spurious injuries by gold-digging patients, chiropractic clinic-mills in cahoots with runners and attorneys, all add up to making skeptical insurance executives leery of any and all chiropractors.
Here is one comment about our own self-destructive nature from a chiropractic board member who wants to remain anonymous for political reasons:
“Too many chiropractors are more interested in creating a lawsuit for some dang lawyer to get involved in than just treating sick folks. Think about it. Why do you need surface EMG’s, thermograms, neurologist consults, spinal diagnostic ultrasounds, and now these traveling diagnostic clinics that bill $6000 on one patient in one day for something that won’t help the chiropractor treat the patient one bit better. Here’s the pitch…. ‘It proves the patient is in pain, Doc, and helps document your care.’ I thought good soap notes did that.”
Even “60 Minutes” took a swipe at this issue on April 12, 1992 in a segment titled, “Workers’ Compensation Fraud, Chiropractors Caught in the Scam,” a segment on the $3 billion per year workers’ compensation rip-off. The focus was on the networks that have been established between attorneys, MDs, DCs, psychiatrists, and others designed to manipulate consenting workers to defraud the workers’ compensation system.
As Leslie Stahl put it: “Now scam artists working out of fly-by-night law offices and back-alley medical mills have devised a scheme to teach you how to fake job related injuries. The doctors get the money, the lawyers split the fees.”
As part of their investigation, the “60 Minutes” team used an undercover person called “Barbara.” Barbara was equipped with a hidden microphone; her boyfriend’s hat was equipped with a hidden video camera. Barbara and her boyfriend stood outside the unemployment office where they were quickly approached by a “capper.” A capper is a person who solicits people to feign injuries as part of the scheme. For their service, the scam network pays cappers an average of $450 per person “hooked.”
When their national viewing audience sees chiropractors involved in such scams, it soils our entire profession’s image in one fell swoop. Forget about the positive research like AHCPR or Manga, forget about being cheaper and better, forget about the thousands of ethical DCs playing by the rules because all the public sees and hears is “60 Minutes” blasting chiropractors as con-artists.
An article appeared in Dynamic Chiropractic by Paul Hooper, DC, concerning workers’ compensation.
“As discussion continues, industry is faced with the challenge of rising costs for health care. Some estimates place these costs as second only to payroll. In 1965, total US spending on medical care was estimated at $42 billion. Today, costs exceed one trillion. To put these costs in perspective, General Motors Corp., claims that their largest single supplier is not a steel company, but rather Blue Cross/Blue Shield.
“While injury rates do not appear to be rising, the costs related to injuries, particularly disability costs, have sky-rocketed in the past decade. Low back pain alone accounts for 16 percent of all workers’ compensation claims but 33 percent of all WC costs. According to recent studies the mean cost per case for low back injuries is $8,321 (1989). In 1986 the costs were $6,807 per case (a 123 percent increase in only three years). Total expenditures for back pain in the US are estimated to be in excess of $50 billion annually. Costs for cumulative trauma disorders, not including back pain vary. The National Council on Compensation Insurance reported that the average cumulative injury claim cost for 1989 was $24,158. A recent more realistic study demonstrates that the mean cost per case for CTDs is actually $8,070 (1989).”
Here is another short story I gleaned from the Dynamic Chiropractic archives that describes the backlash all chiropractic suffers from due to a few bad apples:
Florida Business Magazine Berates Chiropractic
Cover Story Points Finger at DCs as
Top Abusers of Workers’ Comp.
“With all of the good publicity chiropractic has received (ABC’s “Good Morning America,” Time magazine, the New York Times, etc.), it is easy to forget that the profession has not ceased being a target. There are still people in the medical profession and the insurance industry who try to lay blame for the increasing cost of health care on chiropractic. An example of their persistent efforts is the cover story for the June issue of Florida Trend, a self-described Florida business magazine. The article, “The Manipulators,” concerns “quack medicine” and focuses negatively on chiropractic.
“The article begins with descriptions of two cases, both alleging chiropractic overutilization. The first is of a masonry worker in his early 30s who was treated by a DC for over a year. At the onset of the injury, he had initially been approved by his employers and insurance company to go to the emergency room. The treating physicians there “determined that the injury was minor and would treat itself with time and that he could return to work.” The employee disagreed and went to a chiropractor. The insurance company questioned the DC’s diagnosis and refused compensate for a year’s worth of chiropractic treatment. The insurance company finally settled for about 50 percent of the charges and an agreement to further treatment by a chiropractor of the carrier’s choice.
“The second case involves a 70-year-old woman who fell at her office. After using different methods of therapy to no avail, she was sent to a DC who treated her for about two years. The author comments that the chiropractic treatment had “little effect” and that the insurance carrier had no indication of how long the treatment would go on. The carrier, who is now contesting the claim within the state, spent $3,400 on this treatment and another $700 getting second opinions.
“After dutifully reporting these two case histories, the author informs readers that according to the National Council on Compensation Insurance, chiropractic care accounts for only six percent of $1.25 billion spent annually on Florida’s workers’ compensation medical costs. So why all the fuss? Because chiropractic is gaining what the article calls “a bigger slice of the workers’ comp pie.” And even though the author admits “…it’s hard to build a case against chiropractic as the nub of what’s wrong with workers’ comp,” there is this blanket indictment of chiropractic:
“Yet, critics of chiropractors are flush with examples of abuse — not only of workers milking the system but also of chiropractors aiding and abetting workers by extending treatment unnecessarily and saying patients are more injured than they really are. The chiropractic industry has also become linked to the money-grubbing side of contingency-fee lawyers, creating for each other a steady flowing pipeline of patients and legal fees. What’s more, the chiropractic profession is becoming increasingly marketing oriented, teaching its members to push cradle-to-grave care and offering what seems to be more seminars on patient retention techniques. And to make sure that none of this comes undone, chiropractors have built up one of the most effective lobbying organizations in Tallahassee.
“On the subjects of chiropractic overutilization, the author interviewed people who use the chiropractic profession as a scapegoat for Florida’s rising workers’ compensation costs. Hence, the following quotes:
Ken Hacker, a spokesperson for the American Insurance Association says in the article, “Sometimes I think of workers’ comp as the chiropractic full-employment act.”
Mary Ann Stiles, a lobbyist for Associated Industries of Florida and a member of a panel that sets fee schedules for workers’ compensation is quoted, “I don’t see why chiropractic should be considered basic health care providers when they overtreat and overcharge. They have abused their right to be in the system.”
W.D. Jacobs, senior vice president and corporate counsel for Sarasota-based FEISCO (the largest workers’ compensation insurer in Florida) says, “Chiropractors have chosen to find a marketplace for their services that is intimately involved in litigation.”
So, what can be done with this two-faced dilemma? We have some unethical DCs scamming the WC program and we have WC insurance companies boycotting the best form of care for the majority of on-the-job injuries due to their medical bias and their perverse motivation to pay out more so they can charge more. When 16% of all on-the-job injuries incur 33% of all expenses, yet here in Georgia DCs were paid less than one percent of the providers’ benefits, something is amiss.
Just as the ACA asked for an audit of the Medicare mess to determine the under-utilization of chiropractic services, I believe every state association should also ask for an explanation why our services are not equitably used in this epidemic of on-the-job back injuries and why chiropractors are not on every panel.
Humpty Dumpty and Workers’ Comp
Chiropractors are often the proverbial “last resort” when asked to clean up the mess made by the world of medicine. Like the childhood story of Humpty Dumpty after his fall, we DCs are put in the position of “all the King’s horses and all the King’s men” who are responsible for putting “Humpty Dumpty back together again.”
Case in point: A middle-aged female fell at Sears where she was employed. My diagnosis was a slight left sacroiliac sprain, nothing too serious that a few weeks of adjustments and spinal exercises could not have helped. After only a few office visits, her Workers’ Comp adjuster flatly refused any continued chiropractic care, forcing her to go their surgeon instead. Using threats such as refusal to pay for her lost wages as well as labeling her a possible malinger for refusing “proper” medical care, this patient reluctantly agreed.
Two years and four back surgeries later — a hemi-laminectomy at L5, a coccygectomy, instrumentation and fusion of her left SI joint and subsequent explantation of the hardware (pedical screws implanted in her left SI joint), then replacement of the screws — she reappeared at my office in more pain than her original pain. Her surgeon had now identified the L4-5 level as the cause of her continued pain and had proposed additional surgery, although facet blocks at that level were of no benefit. This surgeon made a career off this one patient, and he obviously has no intention to stop milking this cash-cow!
Her surgical bill had exceeded $200,000, she was in worse pain than ever and she admitted that she should have stayed with chiropractic care instead. She presently lives on pain pills (to little effect other than keeping her stoned) and her husband is also distraught because his wife cannot carry on a simple conversation due to her constant back pain and the effects of medication. Both are now retired, but their lifelong dream of traveling are gone since she cannot sit prolonged with her failed surgeries. Indeed, her entire life has been turned upside-down due to these unnecessary surgeries.
To make matters worse, at her Workers’ Comp hearing to determine her permanent disability, the WC attorney had the gall to blame her initial chiropractic care for her condition, telling the judge that chiropractic adjustments made her worse, even though he had no proof and the patient totally disagreed! To his way of thinking, the four unnecessary and ineffective surgeries were not to blame, and the scapegoat was the chiropractor, not the surgeon!
I wish I could tell you a happy ending to her case, but I cannot. A few years later, living in partial disability and on intravenous morphine treatments at home, this patient succumbed to a technician’s error. After refilling her bottle of morphine, he mistakenly set her drip at a rate of 5.0 instead of 0.5, and she died right then in front of him and her husband. A case that began as a simple SI joint problem solved in two weeks with chiropractic care ended up with unnecessary spine surgeries, great expense, disability and iatrogenic death.
Has Workers’ Comp gone insane? This is not an isolated example. Here in Georgia, it is next to impossible for injured workers to get authorization for chiropractic care despite the plethora of research that has proven spinal manipulative therapy is faster, safer and cheaper than medical care. Yet, anyone who has ever worked with this organization knows of their biased attitude toward chiropractic and the problems WC patients encounter.
Coincidentally, recently I had the pleasure of having lunch with a member of the Board of Examiners and I told him of this patient’s problem and our professional dilemma of being snubbed by Workers’ Comp despite our proven effectiveness with low back problems. He, also a DC, had wondered the same thing and had the opportunity to ask Workers’ Comp representatives to explain this odd situation. Their informal, unofficial response to his question (“Why is WC so biased toward chiropractic in light of the positive research of our success with this number one injury among workers?”) was shocking to say the least.
He was ruefully told by the WC spokesperson, “That’s exactly why we don’t like you chiropractors — because you are cheaper and faster!” Apparently, in the good ol’ boy medical system, the more WC pays out, the more they can charge, so there is more money for everyone. In this light, anyone who may lower the expenses of WC injuries is a threat to their fat-cat system!
I also had the opportunity to ask the same question of a WC nurse with a very negative attitude who came by my office to investigate another LBP case under my care: “Why are you so negative about chiropractic care?” Her response was simple: “If they have surgery, they only go once. (Her first wrong assumption) But if they go to a chiropractor, they have to keep coming forever!” (Her second wrong assumption)
I almost fell out of my chair upon hearing her convoluted logic, and I responded by saying, “For the price of one surgery, I can give this patient lifetime care for her next four lives! And besides, what makes you think back surgeries are effective, considering the AHCPR’s written opinion that ‘Surgery has been found to be helpful in only one in 100 cases of low back problems?’” I even gave her a copy of this report, which she begrudgingly took, obviously unimpressed!
Of course, she had no good response to my question since she was totally unaware of the AHCPR guideline and the recent research from Manga, Meade or the many WC studies that have proven emphatically that chiropractic care is the best solution to these injuries. Her bias was well established by her superiors, and there was nothing I could say to change her mind. As I told her, “Don’t let the facts get in the way of your opinion!”
What can we do to stop this surgical predation upon injured workers as long as the profit motive prevails in these programs? Despite the fact that the law allows injured workers to go to a chiropractor, the obvious bias of WC administers is the largest bottleneck workers face in their recovery. This obviously exploitive profit-motive of WC is an insidious problem that closes the gate for anyone who wants the freedom to choose between surgery or chiropractic care.
I am tired of playing the proverbial “last resort” trying to clean up the messes of the surgical predators. Whereas “all the King’s horses and all the King’s men” might have been able to help put Humpty Dumpty back together again, what can be done to a patient after four unnecessary back surgeries? This poor woman is a victim of an unscrupulous WC system and predatory surgeons–her life is changed forever; yet, it’s good for their business!
Legally, injured workers are entitled to go to chiropractors, assuming they can get past the medical gatekeepers. For the few that do enter our profession through this small gate, they still must face a Workers’ Comp system that has proven itself very negative about our care despite the fact that manipulative therapy is faster, cheaper, safer, longer-lasting, and with three times the patient satisfaction rate compared to surgery. Patients are being railroaded to ineffective surgeries because it is good for the WC and medical system that profits by unnecessary back surgery upon patients. Unfortunately, my patient is just one example of thousands of cases every year who are being mismanaged by an unscrupulous WC system that seems out of control.
[1] Samuel R. Sherman, letter from H. Doyl Taylor, director, AMA Dept. of Investigation, 20 February 1968, Wilk. PX-332
[2] Karoli, “HCR History, Chapter 3: The Great Medicare Debate, March 17, 2010
[3] CMS Programs & Information”, U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services. Retrieved March 21, 2010.
[4] “A. M. A. Indicted,” TIME, January 02, 1939.
[5] RJ Eskow, “Operation Coffeecup”: Reagan, the AMA, And the First ‘Viral Marketing’ Campaign … Against Medicare, Huffington Post, April 10, 2007.
[6] Merwyn R. Greenlick, PhD, “The Development of the Social Mission of Kaiser Permanente,” The Permanente Journal,1/1 (Summer 1997): 1.
[7] Ibid.
[8] “Fishbein’s Kaiser,” TIME, (November 23, 1942).
[9] “Medicine: Fishbein’s Kaiser,” TIME magazine, Nov. 23, 1942 http://www.time.com/time/magazine/article/0,9171,773953,00.html#ixzz0khEIAlsg
[10] “People: People, Nov. 16, 1942,” TIME magazine, Nov. 16, 1942. http://www.time.com/time/magazine/article/0,9171,932883-1,00.html#ixzz0khFAXz1N
[11] “Doctors at War,” TIME (July 10, 1950).
[12] “National Affairs: The Price of Health: Two Ways to Pay It,” TIME, (Feb. 20, 1950): 4.
[13] Ibid.
[14] Edward Kennedy, “The Cause of My Life,” Newsweek, (July 27, 2009):36
[15] Karen Tumulty, “Can Obama Find a Cure?” TIME, August 10, 2009.
[16] Charles Babington, “Distortions Rife In Health-Care Debate,” AP, August 3, 2009.
[17] RJ Eskow, “Operation Coffeecup”: Reagan, the AMA, And the First ‘Viral Marketing’ Campaign … Against Medicare, Huffington Post, April 10, 2007
[18] “Operation WHAM” promotional materials from the AMA Archives.
[19] Richard Rapaport, “How AMA ‘Coffeecup’ Gave Reagan A Boost,” SFGate.com, June 21, 2009
[20] Ibid
[21] Drew Pearson, “Attorney General Gets Scolding, The Washington Merry-Go-Round,” The Washington Post, June 17, 1961, C15.
[22] Devere E. Biser, “AMA Spends $950,570 on Fight against Medicare,” Texas Chiropractor 22/10 (Aug 1965): 14 reprint from the Dallas Times Herald
[23] Larry DeWitt, The Medicare Program as a Capstone to the Great Society-Recent Revelations in the LBJ White House Tapes, May 2003, http://www.larrydewitt.net/Essays/MedicareDaddy.htm#N_17_
[24] Cf. tape WH6503.11
[25] President Lyndon B. Johnson’s Remarks With President Truman at the Signing in Independence of the Medicare Bill, July 30, 1965, retrieved at http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650730.asphttp:
[26] Ibid. PX-172 November 11, 1962.
[27] George P McAndrews, “Plaintiffs’ Summary of Proofs as an Aid to the Court,” Civil Action No. 76 C 3777, Wilk, June 25, 1987, p. 17.
[28] Independent Practitioners under Medicare (1968) CHAPTER I: DIMENSIONS, METHODOLOGY, AND BACKGROUND OF THE STUDY, http://www.chirobase.org/05RB/HEW/hew00c.html
[29]PX-1550
[30] Samuel R. Sherman, letter from H. Doyl Taylor, director, AMA Dept. of Investigation, 20 February 1968, Plaintiff’s exhibit 220, Wilk.
[31] Ibid. PX-332
[32] Letter from Sherman to Taylor dated 1 March 1968.
[33] WI Wardwell, “Chiropractic: History and Evolution of a New Profession,” St. Louis, Mosby, (1992):165.
[34] Deposition of Mennell, in Wilk, p. 75
[35] McAndrews, p. 52
[36] Ibid. PX-1529
[37] Ibid. PX-344
[38] McAndrews closing argument, p. 3105
[39] HEW Response to Chiropractic’s “White Paper” on Health, Education and Welfare Secretary’s Report, “Independent Practitioners under Medicare,” May 1969
[40] “Chiropractic’s ‘White Paper’ on Health, Education and Welfare secretary’s Report ‘Independent Practitioners Under Medicare,’” May 1969.
[41] HEW Response to Chiropractic’s “White Paper” on Health, Education and Welfare Secretary’s Report, “Independent Practitioners under Medicare,” May 1969
[42] HEW Response to Chiropractic’s “White Paper” on Health, Education and Welfare Secretary’s Report, “Independent Practitioners under Medicare,” May 1969
[43] Ibid. PX-1384
[44] Editorial Staff, “Clinton Administration and HHS Recommend Abolishing Mandatory X-Ray Requirement for Chiropractors,” Dynamic Chiropractic 15/06 (March 10, 1997)
[45] George McAndrews via private communication with JC Smith, 6-22-2010
[46] Louis Sportelli, DC, “A New Revelation – A Renewed Hope for Resolution,” Dynamic Chiropractic 24/02 ( January 15, 2006)
[47] Michael Devitt, “Landmark Decision in ACA Lawsuit Against HHS,” Dynamic Chiropractic 24/02 (January 15, 2006)
[48] Editorial Staff, “Chiropractic on the Medicare Chopping Block,” Dynamic Chiropractic 16/23 (November 2, 1998)
[49] Editorial Staff, “No More Using PTs to Correct Subluxations,” Dynamic Chiropractic – March 11, 2002, Vol. 20, Issue 06
[50] Michael Devitt, “Landmark Decision in ACA Lawsuit Against HHS,” Dynamic Chiropractic 24/02 (January 15, 2006)
[51] Editorial Staff, “No More Using PTs to Correct Subluxations,” Dynamic Chiropractic – March 11, 2002, Vol. 20, Issue 06
[52] Morris Fishbein, Medical Follies, (New York, Boni & Liveright, 1925): 43.
[53] Editorial Staff, “Chiropractic on the Medicare Chopping Block,” Dynamic Chiropractic 16/23 (November 2, 1998)
[54] Editorial Staff, “Chiropractic on the Medicare Chopping Block,” Dynamic Chiropractic 16/23 (November 2, 1998)
[55] Michael Devitt, “Landmark Decision in ACA Lawsuit Against HHS,” Dynamic Chiropractic 24/02 (January 15, 2006)
[56] Peter W. Crownfield, “Supreme Court Denies Petition to Hear Trigon Case Decision Ends Four-Year Legal Battle,” Dynamic Chiropractic 22/26 (December 16, 2004)
[57] Editorial Staff, “No More Using PTs to Correct Subluxations,” Dynamic Chiropractic 20/06 (March 11, 2002)
[58] ibid.
[59] Editorial Staff, “HHS Colluded with AMA” to Boycott Chiropractic, Contends ACA, Dynamic Chiropractic 18/02 (January 12, 2000)
[60] Editorial Staff, “Chiropractic on the Medicare Chopping Block,” Dynamic Chiropractic 16/23 (November 2, 1998)
[61] Michael Devitt, “Landmark Decision in ACA Lawsuit Against HHS,” Dynamic Chiropractic 24/02 (January 15, 2006)
[62] ibid.
[63] Editorial Staff, “Judge Rules Against ACA in HHS Lawsuit,” Dynamic Chiropractic 22/ 24 (November 18, 2004)
[64] ibid.
[65] Louis Sportelli, DC, “A New Revelation – A Renewed Hope for Resolution,” Dynamic Chiropractic 24/02 ( January 15, 2006)
[66] Michael Devitt, “Landmark Decision in ACA Lawsuit Against HHS,” Dynamic Chiropractic 24/02 (January 15, 2006)
[67] Peter W. Crownfield, “Supreme Court Denies Petition to Hear Trigon Case Decision Ends Four-Year Legal Battle,” Dynamic Chiropractic 22/26 (December 16, 2004)
[68] James Edwards, DC, “Teddy Roosevelt and the ACA Lawsuits,” Dynamic Chiropractic 23/02 (January 15, 2005)
[1] Inteli-Health (Johns Hopkins); March 15, 2000.
85 Johns Hopkins news release, “Leading Cause Of Medical Evacuation Out Of War Zones: It’s Not Combat Injury,” http://www.hopkinsmedicine.org/Press_releases/2010/01_22_1 0.html (January 21, 2010),