|
COMPLAINT
Introduction
1. The plaintiff, the American Chiropractic Association,
Inc. ("ACA"), brings this action, on behalf of its members,
doctors of chiropractic, and their patients to force the Department of
Health and Human Services ("HHS") to ensure access to chiropractic
care by Medicare patients enrolled in health maintenance organizations
("HMOs") as is required by the laws of Congress. Specifically,
plaintiff asks this Court to order HHS, pursuant to 42 USCA § 1395mm,
Section 4204(f) of Pub.L. 101-508, 104 Stat. 1388 (1990) (as amended by
Pub.L. 103-432, 108 Stat. 4442 (1994)), to submit to Congress a report
ordered by Congress detailing a study of the extent to which chiropractic
services are being provided to Medicare patients enrolled in HMOs. The
submission to Congress should include, as required by law, recommendations
for legislative and regulatory changes that are necessary to ensure access
to chiropractic services. Additionally, plaintiff asks this Court to order
the Secretary of HHS to refrain from publishing any new regulations, rules,
policy statements and/or guidelines, and to correct or rescind any extant
regulations, rules, policy statements and/or guidelines which have as
their intended purpose any effort to deny Medicare HMO patients the Congressionally
ordered chiropractic benefit of manual manipulation of the spine to correct
a subluxation delivered by a licensed doctor of chiropractic.
2. Chiropractors have long suffered from illegal, competitive
prejudice at the hands of the medical community. In 1988, a United States
District Court, in an antitrust action brought by a group of chiropractors,
found that the American Medical Association ("AMA"), by far
the largest and most powerful association of medical doctors, organized
and led an illegal conspiracy to "contain and eliminate" the
profession of chiropractic in the United States. The conspiracy included,
inter alia, an effort to ban all voluntary professional association between
medical doctors, medical institutions, insurance programs, etc., and doctors
of chiropractic. The decision was affirmed by the United States Court
of Appeals For The Seventh Circuit:
Indeed, the court found that the AMA intended to "destroy
a competitor, "namely chiropractors." [p. 361]
• • • • •
The district court's form of injunction and method
of ensuring its publication (and thus its efficacy) was a reasonable
attempt at eliminating the consequences of the AMA's lengthy, systematic,
successful, and unlawful boycott. [p. 371]
Wilk v. AMA, 895 F.2d 352 (7th Cir. 1990), cert.
den.
3. Anti-chiropractic bias in the world of health care,
such as that demonstrated by the AMA, and its related medical doctor and
health care organizations, has existed throughout the later half of this
century and continues today in spite of the fact that chiropractic care
has been demonstrated to be as effective, or more effective, than traditional
medicine for certain common painful and debilitating ailments. Over the
years anti-chiropractic bias has existed in HHS in spite of certain laws
passed by Congress to insure access to chiropractic care by patients enrolled
in government sponsored, managed healthcare programs. The refusal to report
to Congress complained of here, and the bias demonstrated by HHS, is,
on information and belief, a result of medical doctors' strong influence
on, and dominating presence within this administrative body. Recent changes
to the Medicare laws have created the need for modifications in HHS's
rules, regulations and policies governing Medicare HMO plans. HHS has
embarked on this rulemaking process without regard to the fact that current
Medicare HMO plans have severely restricted, or eliminated altogether,
access to chiropractic care by Medicare patients. Plaintiff brings this
action to prevent HHS from contravening the will of Congress and denying
Medicare patients in HMOs their rightful claim to chiropractic services
delivered by licensed doctors of chiropractic.
"We are mindful of the expertise of agencies charged
with implementing statutory directives. Chevron, 467 U.S. at
843, 104 S.Ct. at 2781-82. We cannot, however, allow an agency, hostile
from the start to the very idea of making the payments at issue, to
rewrite the will of Congress. As the Supreme Court has explained:
[t]he judiciary is the final authority on issues
of statutory construction and must reject administrative constructions,
which are contrary to clear Congressional intent. If a court, employing
traditional tools of statutory construction, ascertains that Congress
had an intention on the precise question at issue, that intention
is the law and must be given effect. Chevron, 467 U.S. at 843
n. 9 104 S.Ct. at 2782 n. 9 (citations omitted). Here, Congress had
an intention: to make DSH payment calculations based on the number
of patients eligible for state Medicaid. The agency had a contrary
intention: to make such calculations based on the number of patients
entitled to Medicaid payment for inpatient hospital care. In the case
of conflict, it is clear whose interpretation shall prevail.
Cabell Huntington Hosp., Inc. v. Shalala, et al.,
101 F.3d 984, 990 (4th Cir. 1996).
Parties
4. The plaintiff, ACA is a non-profit corporation organized
under the laws of the State of Delaware. The ACA's members include chiropractors
within the meaning of 42 U.S.C. § 1395x(r)(5). The plaintiff's address
is 1701 Clarendon Blvd., Arlington, Virginia 22209.
5. Defendant Donna Shalala (the "Secretary")
is the Secretary of the Department of Health and Human Services. The Department
of Health and Human Services ("HHS") is a department in the
executive branch of the United States government.
Jurisdiction and Venue
6. This Court has jurisdiction over this action pursuant
to 28 U.S.C. §§ 1331, 1361, 5 U.S.C. §§ 702 and 704
and 42 U.S.C. § 1395 et seq.
7. Venue is proper in this judicial district pursuant
to 28 U.S.C. § 1391(e) and 5 U.S.C. § 703.
Background
8. In 1963, the AMA established a "Committee on
Quackery" which considered "its prime mission to be, first,
the containment of chiropractic and ultimately, the elimination of chiropractic."
9. The United States District Court for the Northern
District of Illinois found that the AMA's purpose in its unlawful boycott
of chiropractic was to prevent all medical physicians in the United States
from referring patients to chiropractors and from accepting referrals
of patients from chiropractors, to prevent chiropractors from obtaining
access to hospital diagnostic services and membership on hospital medical
staffs, to prevent medical physicians from teaching at chiropractic colleges
or engaging in any joint research, and to prevent any cooperation whatsoever
between the two professional groups in the delivery of health care services.
10. Despite the AMA's illegal efforts, chiropractic ultimately
became licensed in all 50 states.
11. One primary method used by the AMA of achieving its
goal of eliminating chiropractic was to conspire to prevent private insurance
coverage for patients of doctors of chiropractic. This goal was also extended
to government insurance programs by asserting influence on HHS (then HEW).
12. In 1965, Congress established the Medicare and Medicaid
programs as Titles XVIII and XIX of the Social Security Act. Chiropractic
services were not then included as a covered service.
13. In 1967, Congress asked HHS (then HEW) to conduct
an unbiased study to determine the need for including coverage for chiropractic
services under the Medicare Act. The actual study that was conducted was
a "sham" engineered by the AMA and medical physician members
of the Public Health Service of HHS (then HEW). The study panel considered
the AMA directed, illegal boycott affects on professional relations between
medical doctors and chiropractors:
The services of chiropractors and naturopaths could
be provided in the Medicare program as employees of health care institutions.
This would be an unrealistic method of coverage since presently nearly
all of these practitioners practice independently, are not employees
of a health care institution and do not work for doctors of osteopathy
or medical doctors. To implement this alternative would mean a radical
change in attitude on the part of the entire health care world, since
most institutions, agencies, medical doctors or doctos [sic] of osteopathy
would refuse to employ these practitioners.
• • • • •
The services of chiropractors and naturopaths could
be provided in the Medicare program upon referral of a physician for
diagnosis, treatment, or both. This is also unrealistic. The chiropractor
and naturopathy associations would voice strong opposition to such a
proposal. They have emphatically stated over and over again that they
are an entirely separate and independent branch of the healing arts
and that is [sic] is unnecessary for them to work under the supervision
of a medical doctor or doctor of osteopathy. They would regard such
a proposal as an attempt by the medical profession to destroy them as
an independent group by incorporating them into the medical profession,
as they claim medicine did in the case of osteopathy. The American Medical
Association has stated that it is unethical for a physician to refer
a patient to these practitioners and likewise could be expected to voice
strong opposition to such a proposal. Even if such a proposal became
law, its implementation would require mass and open defection on the
part of medical doctors from the policy of its own association. Although
it has been stated that physicians secretly refer patients to doctors
of chiropractic and naturopathic doctors now, it would be quite another
thing for them to sign a document stating they had referred a patient
to a chiropractor or a naturopath, which would be necessary under this
method of reimbursement.
(Exhibit A, attached hereto.)
14. The fact that the AMA had privately met with and
"coached" members of the study panel was concealed from Congress.
At one point, a public meeting between the AMA and the study panel was
considered but the notion was rejected. The reason a public meeting was
rejected was revealed by an attorney for the AMA:
Doctor Cashman [an HEW medical physician] advised me
[an AMA attorney] that the consultant group discussed the proposed meeting
and determined that such a meeting may create legislative problems
for their recommendations which are to be submitted to the Secretary
for his report to the Congress.
(Exhibit B, attached hereto, emphasis added.)
15. As a result of the negative report of the study panel,
Congress delayed including chiropractic care in Medicare for five more
years.
16. In 1972, Congress, over the strenuous objections
of organized medicine, passed the Social Security Amendments of 1972 that,
in part, modified the Social Security Act to include chiropractic services
as a covered service under Medicare. Specifically, Section 1861(r) of
the Social Security Act (42 U.S.C. § 1395x(r)), which lists covered
practitioner's services, was amended to add the following:
"(5) a chiropractor who is licensed as
such by the State (or in a State which does not license chiropractors
as such, is legally authorized to perform the services of a chiropractor
in the jurisdiction in which he performs such services), and who meets
uniform minimum standards promulgated by the Secretary, but only for
the purpose of sections 1861(s)(1) and 1861(s)(2)(A) and only with respect
to treatment by means of manual manipulation of the spine (to correct
a subluxation demonstrated by X-ray to exist) which he is legally
authorized to perform by the State or jurisdiction in which such treatment
is provided".
(Exhibit C, attached hereto, emphasis added.)
17. Only chiropractors manually manipulated the spine
to correct subluxations and this was considered to be a uniquely chiropractic
service demanded by patients of chiropractors. The clear intent of 42
U.S.C. § 1395x(r)(5) was to include in Medicare a uniquely chiropractic
service that was to be provided by a chiropractor, and that would
allow direct access to doctors of chiropractic unhindered by the illegal
AMA inspired boycott.
18. At the same time as 42 U.S.C. § 1395x(r)(5) was becoming
law, in 1973 the AMA was working with medical doctor dominated insurance
companies (many of which were to become Part B Medicare providers) to
prevent any insurance payments for chiropractic services. For example,
AMA staff met with Blue Shield to prevent insurance payments for chiropractic
services:
CHIROPRACTIC COVERAGE UNDER BLUE SHIELD - [AMA] 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.)
(Exhibit D, attached hereto, emphasis added.); and
1. We [Blue Shield] have filed and may use in 6 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.
(Exhibit E, attached hereto, emphasis added.); and
Resistance to chiropractic payment may be indicated
by the fact that fewer [Blue Shield]Plans make payment than the laws
require.
(Exhibit F, attached hereto).
19. In 1977, the Health Care Financing Administration
("HCFA") was established under HHS to administer the Medicare
and Medicaid programs.
20. Pursuant to 42 U.S.C. § 1395u, the Secretary
of HHS is authorized to enter into contracts with private health insurance
carriers to administer and pay claims for health care services rendered
to Medicare patients. HHS has exercised its authority under 1395u by entering
into contracts with private insurance carriers through the HCFA. The Medicare
Part B program is administered nationwide by a network of private insurance
carriers operating under such contracts. Under the "fee-for-service"
Medicare Part B system, Medicare patients in need of chiropractic services
have had varying degrees of success in obtaining those services.
21. In addition to the Medicare Part B system, in 1982
Congress established, pursuant to 42 U.S.C § 1395mm, a "managed
care" Medicare HMO system. Under the Medicare HMO system, a Medicare
patient may receive benefits through a private health insurance carrier's
Medicare HMO plan. Congress directed that all benefits provided under
the Medicare Part B system were to be provided to all patients enrolled
in any Medicare HMO plan.
22. Since the implementation of Medicare HMO plans, many
Medicare patients have been denied access to chiropractic services by
Medicare HMO carriers. Medicare HMO carriers, which are largely operated
and/or influenced by medical doctors, wrongly asserted that, medical physicians,
osteopathic physicians or, even, physical therapists could be substituted
for chiropractors to provide "manual manipulation of the spine (to
correct a subluxation demonstrated by X-ray to exist)", a service
that is unique to chiropractic. Furthermore, many Medicare HMO carriers
use medical doctors as "gatekeepers" to screen patients before
referring them to another practitioner. These "gatekeeper" physicians
are, as a result of the illegal AMA conspiracy, largely biased against
chiropractors and, in any event, have insufficient training to determine
when a patient is in need of chiropractic services. These actions are
contrary to 42 U.S.C. §1395x(r). Recently, Harvard Medical School
advertised a seminar on alternative care as follows:
Alternative (a.k.a. "complementary," "integrative")
medical therapies encompass a broad spectrum of practices and beliefs.
Functionally defined, these are medical interventions neither taught
widely in U.S. medical schools nor generally available in U.S. hospitals.
Examples include chiropractic, acupuncture, homeopathy, massage and
herbal therapies.
(Exhibit G, attached hereto.)
23. As a result of the actions of Medicare HMO carriers
and their gatekeepers, and paralleling the AMA's conspiracy to contain
and eliminate chiropractic, Medicare HMO patients were denied the Congressionally
mandated chiropractic benefit of "manual manipulation of the spine
(to correct a subluxation demonstrated by X-ray to exist)."
24. On October 2, 1990, Senator George Mitchell of Maine
wrote to Louis Sullivan, then the acting Secretary of HHS:
I am writing to express my concern about Medicare coverage
for manual manipulation of the spine to correct a subluxation
for beneficiaries enrolled in Health Maintenance Organizations (HMOs)
and Competitive Medical Plans (CMPs).
The only service of chiropractors recognized as a physician
service under Medicare is the manual manipulation of the spine to
correct subluxation. All Medicare beneficiaries, including those
enrolled in managed care, are entitled to this benefit. I am concerned
about reports which indicate that these benefits may not be available
to beneficiaries enrolled in certain HMOs and CMPs.
I would like HCFA to clarify its position on this matter
with regard to a beneficiary's right to receive this treatment in HMOs
and CMPs. I would also be interested in any information HCFA may have
which would support the contention by chiropractors that beneficiaries
are denied this procedure in some managed care plans under Medicare
contract.
If we are to encourage expansion of Medicare enrollment
in managed care plans we must assure beneficiaries that all covered
services will be made available to them.
(Exhibit H, attached hereto, emphasis added).
25. On November 5, 1990, Congress passed a law as a part
of the Omnibus Budget Reconciliation Act of 1990 requiring the Secretary
of HHS to conduct a study of the extent to which Medicare HMO's were providing
chiropractic services to Medicare patients. This law, Pub. L. 101-508,
§ 4204(f), 104 Stat. 1388, 112 (1990) states:
Study of Chiropractic Services
(1) The Secretary shall conduct a study of the extent
to which health maintenance organizations with contracts under section
1876 of the Social Security Act make available to enrollees entitled
to benefits under title XVIII of such Act chiropractic services
that are covered under such title.
(2) The study shall examine the arrangements under
which such services are made available and the types of practitioners
furnishing such services to such enrollees.
(3) The study shall be based on contracts entered into
or renewed on or after January 1, 1991, and before January 1, 1993.
(4) The Secretary shall issue a final report to the
Committees on Ways and Means and Energy and Commerce of the House of
Representatives and the Committee on Finance of the Senate on the results
of the study not later than January 1, 1993. The report shall include
recommendations with respect to any legislative and regulatory changes
that the Secretary determines are necessary to ensure access to such
services.
(Exhibit I, attached hereto, emphasis added).
26. On April 17, 1991, Senator Mitchell again wrote to
HHS regarding the mandated study of chiropractic services under Medicare
HMO plans:
At my request, the Omnibus Budget Reconciliation Act
of 1990 directed the Secretary of HHS to study the extent to which chiropractic
services are provided to enrollees by contracted HMO Medicare Plans.
The American Chiropractic Association has met with
Mr. Edmund Moy, with the Office of Prepaid Health Care, to express their
concern about the design of the HMO study, and to clarify the goals
of the study.
It is my hope that HCFA, specifically the Office of
Prepaid Health care, will take into consideration the suggestions made
by the American Chiropractic Association in designing and implementing
this study. It is important that Medicare beneficiaries have access
to the full range of benefits to which they are entitled, whether they
receive benefits in a fee-for-service model or a managed care model.
(Exhibit J, attached hereto, emphasis added.)
27. On May 2, 1991, the ACA wrote to HHS, concerning
the design of the mandated study of chiropractic services under HMO Medicare
plans stating:
Consequently, you will realize that the study mandated
by the Omnibus Budget Reconciliation Act of 1990, if it is to be effective
and meaningful, must be designed to determine if the nation's HMO enrollees
are receiving 'manual manipulation of the spine to correct a subluxation
as demonstrated by x-ray to exist,' i.e., spinal adjusting, at the skill
level (and necessarily for the stated purposes) possessed by doctors
of chiropractic or those trained like chiropractors.
(Exhibit K, attached hereto, emphasis added.)
28. On June 10, 1991, HHS wrote back to the ACA stating:
Work is under way on the study of chiropractic services
in HMOs and CMPs mandated by OBRA 90. This study is due to Congress
on January 1, 1993. Your considerations will be considered as we proceed.
(Exhibit L, attached hereto, emphasis added.)
29. On October 2, 1991, Senator Strom Thurmond of South
Carolina made the following statement regarding chiropractic care in the
Congressional record (reported at 137 Cong. Rec. S14124-02 (1991)):
On September 23, Time magazine published an extensive
article about the revolution in health care, concentrating specifically
on the increasing acceptance of chiropractic as an alternative treatment
for some conditions.
The Time article referred to a new body of research
which is validating the effectiveness of chiropractic care in treating
various complaints - especially low back pain, one of the most common
and costly reasons for job absenteeism in the Nation. The article stresses
the fact that the chiropractic profession - is daily gaining more respect
from practitioners of traditional medicine.
I ask unanimous consent that the article in Time, entitled
"Is There a Method to Manipulation?," be included in the record
following my remarks.
(Exhibit M, attached hereto.)
30. On information and belief, the Secretary of HHS did
not issue a report on chiropractic services to Congress on January 1,
1993.
31. On September 24, 1993, Senator Tom Daschle of South
Dakota made the following statement regarding chiropractic care in the
Congressional record (reported at 139 Cong. Rec. S12251-05 (1993)):
Mr. President, I recently received a copy of a report
funded by the Ontario Ministry of Health entitled "The Effectiveness
and Cost-Effectiveness of Chiropractic Management of Low-Back Pain."
This report concludes that chiropractic care provided by qualified professionals
is safe and effective. In addition, it suggests that, for certain diagnoses,
chiropractors often provide high quality care at a lower cost than physicians.
I am intrigued by the results of this report and commend it to my colleagues'
attention as we continue our efforts to reform our health care system.
(Exhibit N, attached hereto.)
32. Also on September 24, 1993, the following appeared
in a Conference Report H.R. 103-256 on Bill 2403 (reported at 139 Cong.
Rec. H6983-01, 6992 (1993)):
OPM Study of Chiropractic Services
The conferees are concerned that the Office of Personnel
Management has failed to proceed with a study, as directed in last year's
bill, on how chiropractic services for treatment of back pain
in federal employees could reduce cost in the Federal Employees Health
Benefits Program. The conferees direct OPM to proceed with this important
study.
(Exhibit O, attached hereto, emphasis added.) (The OPM
study referenced here is not the "study" at issue in this complaint.
The OPM study reference is included only to demonstrate the reluctance
of the agencies of the Executive to carry out studies involving chiropractic
services as mandated by Congress.)
33. On September 16, 1994, the ACA wrote to HCFA regarding
its concern over the improper limitation of coverage of chiropractic services
by a particular Medicare HMO carrier acting under the constraints of a
medical physician's attitude toward chiropractic. While this Medicare
HMO carrier, Kaiser Permanente of California, purported to offer "chiropractic
services" to its Medicare HMO patients, the following statements
were made in its marketing material:
Medicare covers manual manipulation of the spine for
subluxation that is demonstrated by physician read x-ray. It is extremely
rare for physicians to make a diagnosis of subluxation as the cause
of back discomfort.
(Exhibit P, attached hereto, emphasis added.) (The "physicians"
referred to are medical physicians, not doctors of chiropractic who are
extensively trained to diagnose subluxations.)
34. On October 31, 1994, Congress reaffirmed its request
to HHS for a report on the study of chiropractic services under HMO Medicare
plans by amending Pub. L. 101-508, § 4204(f), 104 Stat. 1388, 112 (1990)
to delete the requirement for a ³final² report. Pub. L. 101-508, § 4204(f),
104 Stat. 1388, 112 as amended by Pub. L. No. 103-432, §157, 108 Stat.
4398, 4442 (1994) now reads:
Study of Chiropractic Services
(1) The Secretary shall conduct a study of the extent
to which health maintenance organizations with contracts under section
1876 of the Social Security Act [this section] make available to enrollees
entitled to benefits under title XVIII of such Act [this subchapter]
chiropractic services that are covered under such title [this subchapter].
(2) The study shall examine the arrangements under
which such services are made available and the types of practitioners
furnishing such services to such enrollees.
(3) The study shall be based on contracts entered into
or renewed on or after January 1, 1991, and before January 1, 1993.
(4) The Secretary shall issue a report to the Committees
on Ways and Means and Energy and Commerce of the House of Representatives
and the Committee on Finance of the Senate on the results of the study
not later than January 1, 1993. The report shall include recommendations
with respect to any legislative and regulatory changes that the Secretary
determines are necessary to ensure access to such services.
(Exhibit Q, attached hereto.)
35. On December 14, 1994, HHS and HCFA, without submitting
the study mandated by Congress, issued a policy letter (Operational Policy
Letter #23) stating:
MANUAL MANIPULATION OF THE SPINE - MEDICARE COVERAGE
Operational Policy Question:
Which practitioners are authorized by law to perform
manual manipulation of the spine [not the full definition of the chiropractic
benefit] as a Medicare-covered service?
Answer:
Section 1861(r) [42 U.S.C. § 1395x(r)] provides
the definition of a physician for Medicare coverage purposes, which
includes a chiropractor for treatment of manual manipulation of the
spine to correct a subluxation demonstrated by x-ray [this is the
chiropractic benefit defined by 42 U.S.C. § 1395x(r)]. The statute
specifically references manual manipulation of the spine to correct
a subluxation demonstrated by x-ray as a physician service. Thus,
managed care plans may use physicians to perform this service.
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
law.
(Exhibit R, attached hereto, emphasis added.)
36. Medical physicians, osteopathic physicians and physical
therapists do not provide chiropractic services, e.g., the State
of Washington specifically recognizes the fact, well known by Congress:
[RCW] 18.71.001. Definition of practice of medicine
- Engaging in practice of chiropractic prohibited, when
A person is practicing medicine if he does one or more
of the following:
• • • • •
Provided however, that a person licensed under this
chapter shall not engage in the practice of chiropractic as defined
in RCW 18.25.005.
(Exhibit S, attached hereto.)
37. On October 27, 1995, Senator Orrin Hatch of Utah
made the following statement regarding chiropractic (reported at 141 Cong.
Rec. S16067-01, at 16079-80 (daily ed. October 27, 1995)):
During consideration of the reconciliation bill in
the Finance Committee, I offered an amendment to allow chiropractors
to practice their profession under Medicare to the full extent of the
scope of practice permitted under State law. The Committee agreed to
accept this amendment subject to working out the press of business,
it has not yet been possible to complete the task of fine tuning a mechanism
that would achieve this goal without significantly increasing the cost
to the Medicare program.
This is unfortunate because I believe that the time
is ripe to discard the antiquated restrictions on chiropractors that
permeate current law. Today chiropractic is recognized by the medical
profession, and, indeed, a recent government report concluded that chiropractic
treatment is among the most effective for the treatment of certain type
of ailments. Many of us in this Chamber did not need a government
study to tell us what we already know.
• • • •
[C]hiropractors should be allowed to be reimbursed
under Medicare as long as the service they provide is an existing covered
service, and that they are operating within the scope of their license
as defined by State law.
(Exhibit T, attached hereto, emphasis added.)
38. On June 24, 1997, Senator Hatch made the following
statement regarding chiropractic (reported at 143 Cong. Rec. S6120-02,
6159 (daily ed. June 24, 1997)) during a debate on the Balanced Budget
Act of 1997:
Chiropractic services are currently provided in the
Medicare program; however, the coverage is extremely limited to treatment
by means of manual manipulation of the spine. Moreover, current law
requires chiropractors to obtain an x-ray before payment will be made
even though Medicare will not pay chiropractors to take the x-ray.
I had initially planned to offer an amendment identical
to the language in the House Ways and Means Committee that would remove
the requirement for x-rays as a condition of coverage and payment of
chiropractic services. I would note that this provision also had the
support of the Administration and was included in their budget proposal
as well.
• • • •
[A]lthough it was included in the Ways and Means bill
as I previously mentioned, the Finance Committee spending parameters
did not allow for its inclusion principally due to the cost estimate.
Accordingly, I offered an amendment proposing a two-year
demonstration project to study the cost effectiveness of removing the
x-ray requirement as well as allowing doctors of chiropractic to order
and perform x-rays in both a fee for service and managed care setting.
... [T]he committee unanimously approved my amendment.
I was astonished to learn yesterday that, in fact,
the CBO scored my amendment at $900 million.... [P]ending [review],
the Committee had no choice but to drop my amendment.
I firmly believe that affording greater access to chiropractic
services by beneficiaries will not only result in reduced Medicare expenditures
but will also reduce the performance of needless surgery to correct
back problems.
(Exhibit U, attached hereto.)
39. On August 5, 1997, Congress redefined coverage of
chiropractic services under Medicare by amending 42 U.S.C. 1395x(r)(5)
to eliminate the requirement that a subluxation being treated by
a chiropractor must be "demonstrated by x-ray to exist" in order
for it to be a covered service. The amendment is found in the Balanced
Budget Act of 1997, Pub. L. 105-33, § 4000, 111 Stat. 270, 444 (1997)
and reads:
Sec. 4513. No X-ray required for Chiropractic Services.
(a) In General - Section 1861(r)(5) (42 U.S.C. 1395x(r)(5))
is amended by striking "demonstrated by X-ray to exist". [Please
note that the purpose of the manual manipulation was retained, i.e.,
"to correct a subluxation," a uniquely chiropractic service.]
• • • •
(c) Utilization Guidelines - The Secretary of Health
and Human Services shall develop and implement utilization guidelines
relating to the coverage of chiropractic services under part
B of title XVIII of the Social Security Act in cases in which a subluxation
has not been demonstrated by X-ray to exist.
(Exhibit V, attached hereto, emphasis added.)
40. Several times during 1997 and 1998, various individuals,
including representatives of the ACA, made inquiry of HHS regarding the
study of chiropractic services under HMO Medicare plans mandated by Congress.
The ACA was variously told that, while some form of study had been performed,
no report had ever been issued to Congress.
Count I - Administrative Procedure
Act
41. Plaintiffs repeat the allegations of paragraphs 1-40.
42. The Secretary's failure to complete a study of the
scope and method of delivery of chiropractic services under HMO Medicare
plans and submit to Congress a report detailing the study violates Pub.
L. 101-508, § 4204(f), 104 Stat. 1388, 112 as amended by Pub. L.
No. 103-432, §157, 108 Stat. 4398, 4442 (1994).
43. Pursuant to 5 U.S.C. § 706(1), this Court should
compel the Secretary to comply with Pub. L. 101-508, § 4204(f), 104 Stat.
1388, 112 as amended by Pub. L. No. 103-432, §157, 108 Stat. 4398, 4442
(1994) by completing the mandated study and submitting the required report
to Congress forthwith.
Count II - Mandamus
44. Plaintiffs repeat the allegations of paragraphs 1-40.
45. The Secretary owed a duty to the plaintiffs to comply
with Pub. L. 101-508, § 4204(f), 104 Stat. 1388, 112 as amended by Pub.
L. No. 103-432, §157, 108 Stat. 4398, 4442 (1994).
46. Pursuant to 28 U.S.C. § 1361, this Court should compel
the Secretary to comply with Pub. L. 101-508, § 4204(f), 104 Stat. 1388,
112 as amended by Pub. L. No. 103-432, §157, 108 Stat. 4398, 4442 (1994)
by completing the mandated study and submitting the required report to
Congress forthwith.
47. Plaintiffs have no other adequate remedy.
WHEREFORE, plaintiff ACA prays this Court for the following
relief:
A. That the Court should compel the Secretary to comply
with Pub. L. 101-508, § 4204(f), 104 Stat. 1388, 112 as amended by Pub.
L. No. 103-432, §157, 108 Stat. 4398, 4442 (1994) by completing the mandated
study and submitting the required report to Congress forthwith;
B. That, pursuant to its equitable jurisdiction, and
pendente lite, and in the absence of submission of the study to
Congress, the Court should order the Secretary of HHS to refrain from
publishing any new regulations, rules, policy statements and/or guidelines,
and to correct or rescind any extant regulations, rules, policy statements
and/or guidelines which have as their intended purpose any effort to deny
Medicare HMO patients the congressionally ordered chiropractic benefit
of manual manipulation of the spine to correct a subluxation delivered
by a licensed doctor of chiropractic, whether the denial is based (1)
on a simple failure to provide the services; (2) on a requirement that
a hostile, untrained competitive medical physician make the determination
of the need for chiropractic services; or (3) on allowing any and all
health care professionals to provide the uniquely chiropractic services.
C. That ACA be awarded its costs and expenses in this
action;
D. That the ACA be awarded its attorneys' fees; and
E. That the Court grant ACA such other and further relief
as it may deem just and proper.
Respectfully submitted,
|
