Section 2706 (42 U.S.C. Sec. 300gg-5) of the Affordable Care Act (the “ACA” or “Obamacare”) prevents “discrimination” against any health care provider acting within the scope of his or her state license. The provision, supported by the American Chiropractic Association and other CAM practitioners, was inserted, without a hearing, under the leadership of Sen. Tom Harkin. Sec. 2706 is of concern to advocates of science-based medicine due to the broad scope of practice granted chiropractors, naturopaths, homeopaths, acupuncturists and direct-entry midwives under state law, as well as their over-confident view of themselves and their abilities. As we have previously discussed, for example, both naturopaths and chiropractors fancy themselves as primary care physicians able to differentially diagnose any patient with any disease or condition and, in many cases, treat or “co-manage” these patients.
As might be expected, a brouhaha is brewing over just what Section 2706 means. And there is one attempt to repeal it outright.
In all cases of statutory interpretation, the proper starting point is the statutory language itself.
SEC. 2706. NON-DISCRIMINATION IN HEALTH CARE.
(a) PROVIDERS.—A group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law. This section shall not require that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer. Nothing in this section shall be construed as preventing a group health plan, a health insurance issuer, or the Secretary [of Health and Human Services] from establishing varying reimbursement rates based on quality or performance measures.
In short, while broadly prohibiting discrimination, there are two important limitations. This is not an “any willing provider law” requiring an insurance company to contract with any provider agreeing to the insurer’s contract. And insurers can pay different rates to different providers as long as these rates are “based on quality or performance measures.”
Rep. Andy Harris (R-MD), a medical doctor, is sponsoring a bill (H.R. 2817) to repeal Section 2706 outright. Last month, seven medical specialty societies sent a letter to Rep. Harris in support of his efforts. In their view,
it would become illegal “discrimination” under federal law for private individual and group health plans, and state-based health insurers, to make qualification distinctions among varying groups of physicians and other health care professions . . . We are deeply concerned that for certain covered services in a number of states, [Section 2706] will be interpreted to provide that all health professional groups be considered as if their education, skills and training were equal even if the state-based medical and healthcare professional licenses or certifications are very different.
CAM tizzy
Short of actual repeal, a debate is developing about how Section 2706 will be interpreted and applied.
The three agencies charged with administering the ACA (the Departments of Health and Human Services, Labor and Treasury) issued what little guidance they are offering at the moment in a “FAQ” format. No, the Departments said in answer to a question, they will not be issuing regulations interpreting this provision.
Until any further guidance is issued, group health plans and health insurance issuers offering group or individual coverage are expected to implement the requirements of . . . section 2706(a) using a good faith, reasonable interpretation of the law. For this purpose, to the extent an item or service is a covered benefit under the plan or coverage, and consistent with reasonable medical management techniques specified under the plan with respect to the frequency, method, treatment or setting for an item or service, a plan or issuer shall not discriminate based on a provider’s license or certification, to the extent the provider is acting within the scope of the provider’s license or certification under applicable state law. This provision does not require plans or issuers to accept all types of providers into a network. This provision also does not govern provider reimbursement rates, which may be subject to quality, performance, or market standards and considerations.
This got Sen. Harkin and the pro-CAM crowd in a tizzy. In response, the following was inserted into a committee report accompanying the 2014 appropriations bill for the Departments of Labor, HHS, Education and “related agencies.” The Appropriations Committee “is concerned” that the Departments “FAQ” response
advises insurers that this nondiscrimination provision allows them to exclude from participation whole categories of providers operating under a State license or certification. In addition, the FAQ advises insurers that section 2706 allows discrimination in reimbursement rates based on broad ‘‘market considerations’’ rather than the more limited exception cited in the law for performance and quality measures. Section 2706 was intended to prohibit exactly these types of discrimination.
The Committee advised the Departments to work together and issue new guidance within 30 days of the appropriations bill being passed (which has yet to happen) and in time for insurers to understand their obligations before Section 2706 goes into effect in 2014.
This is alarming indeed and is contrary to the plain language of the statute. Even though Section 2706 states that no insurer is required to contract with any particular provider, it appears Sen. Harkin and his committee think that each insurer must have at least one provider of each type licensed under a particular state’s law. And likely more, because if all provider types must be included then having only one or two could give the appearance that tokenism is afoot. Will insurers have to include CAM providers in all geographical areas? Will this require quotas?
John Weeks over at the Huff Po/Integrator Blog was even more apoplectic. According to him (even though this didn’t seem to bother the Harkin committee):
It doesn’t take a legal expert to read this document as a declaration that the plans and states can use “reasonable medical management techniques” to essentially blow off the section.
So insurers should not control “the frequency, method, treatment or setting for an item or service” with “reasonable medical management techniques” even if they are, well, reasonable? Of course, I can see where these controls might upset CAM providers. After all, “frequency” limitations might prevent chiropractors from convincing patients they need weekly “adjustments.” “Method” and “treatment” limitations could practically wipe out naturopathic practice coverage – no more colonic irrigation, peat baths, green tea suppositories, live blood analysis, and the like. And it would eliminate anything a homeopath could do.
What do chiropractors want?
Which brings us to an interesting question: what do CAM providers think should be covered under the ACA in order for insurers to be in full compliance with Section 2706? Chiropractors have been the most vocal, and we’ll look at what they are saying in this and the next post. We’ll also take a look next time at the views of naturopaths, acupuncturists and direct-entry midwives. But the short answer is: they want to be primary care providers and they want insurance to pay for it.
As we have seen, it doesn’t seem like Congress had chiropractors and naturopaths in mind at all when it defined primary care provider. Unfortunately, that doesn’t necessarily mean insurers will be able to avoid reimbursing chiropractors when they provide certain services normally provided by PCPs. In fact, if there is one thing you can be sure of, it is that chiropractors and other CAM providers will be screaming “foul” if anything they do (no matter how they do it) isn’t paid for if MDs, DOs, or nurse practitioners are being paid for doing it.
The ACA requires insurers to cover certain “essential health benefits” (or “EHBs”):
- Ambulatory patient services
- Emergency services
- Hospitalization
- Maternity and newborn care
- Mental health and substance use disorder services
- Prescription drugs
- Rehabilitative and habilitative services and devices
- Laboratory services
- Preventive and wellness services and chronic disease management
- Pediatric services, including oral and vision care
An article just out from Chiropractic & Osteopathy focuses on how chiropractors might claim a slice of the insurance reimbursement pie by providing “evidence-based clinical preventive services.” (The ACA eliminated co-pays for those services rated A or B by the U.S. Preventive Services Task Force [USPSTF].) According to the authors, except for recommendations on screening and counseling for infectious diseases, the following services are within the scope of chiropractic practice in most states:
Screening
- Alcohol misuse
- Colorectal cancer
- Depression
- Diabetes (type 2)
- Hearing Loss
- Hypertension
- Iron deficiency anemia
- Obesity
- Osteoporosis
- Tobacco use
- Lipid disorders
- Vision
Counseling/interventions
- Alcohol misuse
- Breastfeeding
- Folic acid supplement
- Iron deficiency anemia screening
- Obesity weight management
- Tobacco use intervention
Abdominal aortic aneurysm (ultrasound), breast cancer (mammography) and cervical cancer screening, and aspirin for CVD prevention, are noted as not within the chiropractic scope in most states, which implies that they are within the scope of practice in some. (Note that we are talking only about preventive services here, which is only a portion of the coverage chiropractors want. Should you wish to see what chiropractic treatment of diabetes might look like, you can read about it here.)
The authors admit, however, that even though the listed services are within the chiropractic scope of practice, “many chiropractic college faculty do not have specific training in clinical preventive services.” Instead of adding additional coursework to the DC curriculum, they recommend that basic science material like microbiology and biochemistry could be reduced in favor of more on health behavior and education.
Clinical education for the vast majority of chiropractic students takes place in small chiropractic college clinics as a requirement for the DC degree. (MD and DO primary care physicians must undergo an additional 3 years of clinical training in primary care after getting a medical or osteopathic degree.) Here’s how the authors propose to incorporate training into the DC curriculum:
it seems quite feasible to simply “get more mileage” out of existing standardized and actual patients. That is, rather than restricting the history and examination to vital signs, orthopedic, neurological, postural or palpatory findings, simply broaden them to include BMI assessment, health habits and other lifestyle factors. In fact, many and perhaps most chiropractic colleges already do include lifestyle in the history. The next step, not uniformly taken as yet, would be to require students to counsel patients on changing risky health behaviors. These patients may be presenting for musculoskeletal complaints, or like many patients in chiropractic teaching clinics, may be presenting for “wellness care.” These are opportunities to screen for health risks, particularly those which are extremely common, such physical inactivity and overweight/obesity, and to counsel patients when the risks are present. Thus, current patients (both standardized and actual) could provide opportunities for screening and counseling at the same time that they are being treated for symptoms/conditions.
The authors’ advice contains some stunning, and most certainly unintentional, admissions about deficiencies in chiropractic education and training that are at odds with any number of claims otherwise, a subject we’ll look at in more depth in the next post.
First, at this point, chiropractic schools aren’t educating and training students in preventive care. Second, chiropractic education and training is woefully inadequate to support chiropractic scope of practice. After all, the authors listed many screening and counseling/intervention services recommended by the USPSTF as within the scope of chiropractic practice. Yet, they admit these same services are not part of chiropractic education. Furthermore, in their recommendations for improving clinical education, I don’t see anything about, for example, how to screen for breast or colorectal cancer, lipid disorders, vision, or hearing loss. And breastfeeding? Well, chiropractic “pediatricians” do claim that “subluxations” in an infant’s spine can lead to breastfeeding difficulties. I suppose they may be learning that. Third, apparently practically all patients present with musculoskeletal complaints or for wellness care, not with the broad range of patient presentations typical of primary care clinical training and practice. This goes not only to their lack of training, but also demonstrates that the public doesn’t consider chiropractors as suited for preventive care even when they are using them for “wellness care.”
Wellness care?
If there is one so-called preventive health technique chiropractors are being trained for and are using, it is certainly “wellness care.” But it is nothing you will find in the USPSTF recommendations. Nonetheless, according to the 2012 chiropractic journal article Consensus Process to Develop a Best-Practice Document on the Role of Chiropractic Care in Health Promotion, Disease Prevention, and Wellness, wellness care is most certainly part of the DC primary care tool kit. But as it is with many aspects of chiropractic practice, the term “wellness care” means different things to different chiropractors.
To some it is synonymous with “maintenance care”, that is, periodic “adjustments” of “subluxations” to improve overall health and prevent disease and “for prevention of future musculoskeletal disorders.” This is ironic, considering their emphasis on USPSTF recommendations, because the Task Force has concluded “the evidence is insufficient to recommend for or against the routine use of interventions to prevent low back pain in adults in primary care settings.” And you can bet if there were some evidence in favor of interventions they wouldn’t include maintenance care. Other chiropractors use the term more broadly, meaning a combination of maintenance care along advice about such things as exercise. Still others don’t recommend maintenance care at all. According to these authors, there is currently no evidence to either support the “theory” underlying maintenance care or to reject it. An odd position considering there is no evidence subluxations exist.
Thus, the authors undertook what they describe as:
The first attempt at developing a comprehensive set of best-practice statements that address the issues of providing wellness care within the context of chiropractic practice. It is a synthesis of the best current evidence and collective expert opinion about a reasonable clinical approach to health promotion within chiropractic practice.
The first attempt? They’re just getting around to this in 2012?
So, based on “the best current evidence and collective expert opinion” is “maintenance care” an appropriate part of health promotion, disease prevention, and wellness in chiropractic practice? Yes, the only limitation being that chiropractors shouldn’t use it “without counseling on lifestyle and screening for risk factors.” Or, at least, they shouldn’t call it “wellness care” without this window dressing.
All of this raises some interesting questions regarding coverage of chiropractic services under the ACA. For example, will chiropractors be able to bundle an episode of “maintenance care” into a screening package and bill the insurance company for it? And if the medical specialty societies are correct and insurers won’t be able to take into account differences in education and training, must insurers cover, for example, breastfeeding advice and lipid screening by chiropractors, even when they have little, or no, training in these areas? Or use bogus methods? And if the chiropractor gets to the patient first and bills for an annual panel of screening tests and preventive care advice (no matter how poorly done), will the primary care physician have to eliminate those items from his billing, or do them for free? What if he sees that the chiropractor has botched the diabetes screening or sold the patient on a bunch of dietary supplements as “nutritional advice?”
Next time, we’ll look into what the chiropractic industry associations are saying about chiropractors and Obamacare coverage for primary care, as well how naturopaths, acupuncturists and direct-entry midwives see themselves as PCPs.
