A new government report found that about half of all Medicare payments for chiropractic services between 2010 and 2015 were improper, costing some $250 to $300 million annually. Medicare beneficiaries also paid millions of dollars out of their own pockets in co-pays for chiropractic services deemed improper. Yet, despite years of proposed solutions to combat waste, fraud and abuse by chiropractors, necessary controls have not been implemented and remain inadequate to prevent several billion in further losses to the Medicare Trust Funds.
There is a simple solution to this problem, but it will take Congressional action, something that is in short supply these days. We’ll return to the solution in a moment, but first let’s take a look at this government report and some background information on Medicare payments for chiropractic services.
“Medicare Needs Better Controls to Prevent Fraud, Waste, and Abuse Related to Chiropractic Services”
Last month, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) issued yet another in a series of reports aimed at reducing improper Medicare payments to chiropractors, this one titled “Medicare Needs Better Controls to Prevent Fraud, Waste, and Abuse Related to Chiropractic Services.” OIG’s frustration with the Centers for Medicare & Medicaid Services (CMS) for failing to act on previous recommendations practically leaps from the pages.
Medicare, as the OIG notes, covers chiropractic services for manual manipulation of the spine to correct a subluxation, which can be diagnosed either by physical examination or by x-ray. According to the Medicare Benefit Policy Manual (Medicare Manual), the chiropractor must identify the precise level of the subluxation to substantiate a Medicare payment claim. While Medicare won’t pay for an x-ray to identify a subluxation, the x-ray can be used as documentation that the subluxation is there.
(At this point, faithful SBM readers will likely have guessed my simple solution to Medicare’s bleeding hundreds of millions of dollars in payments to chiropractors annually, but let’s continue with our present discussion for now.)
To qualify for Medicare payment, the chiropractic patient must have a “significant health problem in the form of a neuromusculoskeletal condition” and spinal manipulation must provide “reasonable expectation of recovery or improvement of function.” The Medicare Manual says that most spinal joint problems fall into one of two categories: “acute subluxation,” a new subluxation identified by physical exam or x-ray, and “chronic subluxation,” which is not expected to resolve with further treatment but where continued therapy can be expected to result in some functional improvement. To get paid, the chiropractor must place an “AT” modifier on the claim, indicating he provided “active/corrective treatment” for an acute or chronic subluxation, a requirement CMS added to help prevent chiropractic claims for unnecessary services.
The Medicare Manual also explains what is not covered: so-called “maintenance therapy,” subluxation correction that, according to chiropractors, prevents disease, promotes health, and prolongs and enhances quality of life.
Over a six-year period (2010-2015) Medicare paid $2.9 billion for subluxation correction. According to the OIG report, a whopping 44% to 54% of these payments were improper, the majority for medically unnecessary services, including maintenance therapy. This compares to a 10% to 13% improper payment rate for other Medicare-covered (Part B) services, which include doctor’s office visits, physical and occupational therapy, and outpatient surgery.
The OIG also found that, as the number of chiropractic services (again, limited to subluxation correction) a patient receives increases, the percentage of improper claims increases. In a 2013 nationwide review, 76% of claims for between 1 and 12 services were unallowable under Medicare coverage rules. Unallowable claims rose to an eye-popping 100% for patients receiving 31 or more services.
This most recent OIG report is one of at least 17 government reports since 1986 ferreting out chiropractic fraud and imploring CMS to employ more effective controls on improper chiropractic payments, especially those for maintenance therapy. (Chirobase lists all the reports here.) Unfortunately, some improvements aimed at addressing improper payments have backfired.
Instead of preventing fraud, the AT modifier has been turned into an instrument of fraud. Chiropractors simply slap it on all claims, knowing they’ll get paid regardless of whether it’s appropriate. In 2015, claims for all but 30 of the nearly 14 million chiropractic services paid by Medicare had the AT modifier, which is regularly used to get paid for uncovered maintenance therapy, according to the OIG report. Another anti-fraud mechanism – requiring the date of initial treatment on the claim, used as an affirmation that documentation of medical necessity is on file – is similarly misused. Chiropractors simply include the date on all claims even though, in two separate investigations, at least 90% did not appropriately document medical necessity.
Attempts to educate chiropractors and beneficiaries about improper payments are, in the OIG’s opinion, poorly executed or simply ignored. CMS doesn’t mention maintenance therapy in its explanation of benefits and fails to tell beneficiaries that some chiropractic services, like massage and acupuncture, aren’t covered. A CMS YouTube video on improving documentation is largely ignored by chiropractors.
The OIG thinks CMS could save millions of dollars by establishing a threshold beyond which chiropractic services (say, for example, 30 services a year) would be covered only if supported by medical review, a strategy employed by many private insurers and some Medicare contractors. The OIG estimates that this strategy alone would have saved Medicare almost $100 million, and patients over $24 million in co-pays, over a 2-year period. CMS doesn’t agree with this strategy and won’t implement it. In fact, CMS’s overall attitude seems to be that a few billion for chiropractic services is a small piece of the pie and it would prefer to go after bigger fish.
A better solution
I have a better idea for saving billions paid for chiropractic services: Stop paying for treatment of chiropractic subluxations. After over a century of claiming the detection and correction of subluxations is beneficial to health, chiropractors have never been able to prove these subluxations exist. All other healthcare professions, including medical doctors and physical therapists, reject the chiropractic subluxation. (An orthopedic subluxation – the partial dislocation of a joint – is a different thing altogether.) As well, in 2015, several foreign chiropractic colleges banded together to reject teaching of subluxation “theory” except as an historical concept. Even some chiropractors admit there’s no evidence:
No supportive evidence is found for the chiropractic subluxation being associated with any disease process or of creating suboptimal health conditions requiring intervention. Regardless of popular appeal, this leaves the subluxation construct in the realm of unsupported speculation. This lack of supportive evidence suggests the subluxation construct has no valid clinical applicability.
The General Chiropractic Council, the regulatory body for U.K. chiropractors agrees, finding that the chiropractic vertebral subluxation complex:
is an historical concept [and] . . . is not supported by any clinical research evidence that would allow claims to be made that it is the cause of disease or health concerns.
Somebody tell Congress. The Medicare law defines the term “physician” to include chiropractors and covers chiropractors for “medical and other health services,” but:
only with respect to treatment by means of manual manipulation of the spine to correct a subluxation . . .
In this, Congress was simply picking up the term “subluxation” from the states’ definition of a chiropractor’s scope of practice. In the early 1900s, the term “subluxation” was included in state chiropractic licensing laws to distinguish chiropractic practice from medical practice, laws passed to prevent chiropractors from being arrested for the unlicensed practice of medicine. At the time, it was a reference to the original definition of the word fabricated by “magnetic healer” D. D. Palmer, the inventor of chiropractic, out of thin air. Since then, subluxation has been redefined numerous times by chiropractors, without their even having bothered to prove such a thing exists, or agreeing on how to find one or its clinical significance.
Since Congress didn’t provide a definition of “subluxation,” Medicare chose this one out of the many available, a consensus definition cobbled together in the early 1990s by various chiropractic groups (Gatterman, 2005) and vague enough to satisfy the warring factions that permeate chiropractic practice:
a motion segment, in which alignment, movement integrity, and/or physiological function of the spine are altered although contact between joint surfaces remains intact.
CMS has washed its hands of any attempt to reconcile the chiropractic notion of the subluxation with its medical meaning, or the fact that no other health care profession believes the chiropractic version exists:
Implementation of the chiropractic benefit requires an appreciation of the differences between chiropractic theory and experience and traditional medicine due to fundamental differences regarding etiology and theories of pathogenesis of disease. Judgments about the reasonableness of chiropractic treatment must be based on the application of chiropractic principles.
In other words, Congress pretends this pseudoscience is fact, so we are forced to go along with it.
At least CMS limits subluxation correction to neuromusculoskeletal conditions, a limitation not obvious in the Medicare law and incongruent with the chiropractic concept of the subluxation, which they view as a contributing factor to any number of diseases and disorders. This notion is the origin of forbidden maintenance therapy: chiropractors promote the idea that regular “spinal checkups” for subluxation detection and correction to promote health and prevent disease.
In addition to wasting money on treating non-existent pathologies, location of “the precise level of the subluxation,” as required by Medicare, means that patients are being subjected to radiation for no good reason so chiropractors can document their (supposed) diagnosis. (It is sickening to see x-ray after x-ray of patients, including children, in chiropractic textbooks, instructing students on detecting subluxations via x-ray film.) To add insult to injury, Medicare doesn’t pay for the x-ray, meaning the patient must pay out-of-pocket.
This brings up a question: If Congress boots subluxation correction from Medicare coverage, should chiropractors be covered for any services at all?
On the one hand, however chiropractors see themselves, the public views them as “back doctors” (as does Medicare) and there is some less-than-robust evidence that generic spinal manipulation is effective for certain types of back pain. (Spinal manipulation is not synonymous with the chiropractic “adjustment” to treat the fictional subluxation, although chiropractors do use spinal manipulation as a means of making an “adjustment,” as SBM’s own retired chiropractor, Sam Homola, explains.)
As one solution, Congress could decide to cover spinal manipulation by chiropractors to the same extent it covers spinal manipulation by a physical therapist, doctor of osteopathy or medical doctor for medically necessary treatment of back pain, but it would need to exclude the subluxation as a proper diagnosis. Even in cases where spinal manipulation may be an appropriate treatment for back pain, it should not be based on a diagnosis of the non-existent chiropractic subluxation.
On the other hand, given the chiropractic track record for cheating Medicare, one wonders if they wouldn’t just fudge the diagnosis and continue improperly providing maintenance therapy. And it’s not like patients would be deprived of spinal manipulation in medically appropriate cases without them; they have other providers to choose from, providers who wouldn’t be so quick to use cervical manipulation for neck pain or cervicogenic headache, with their attendant risks.
Trying to amend the law creates a risk that chiropractors will use it as an opening to push for their dream of Medicare recognition of chiropractors as physicians who, in the words of the American Chiropractic Association:
should be allowed to practice to and be reimbursed for the fullest extent of their licensure, training and competencies.
It is a dream the ACA has been pushing to fruition for years, a piece of their larger plan to rebrand chiropractors as primary care providers with state licensing laws to match, efforts that are sometimes rewarded by states granting them huge scope of practice expansions. (These efforts continue in the 2018 state legislative sessions.)
Of course, the ACA would be put in the unfortunate position of arguing that Congress, having seen fit to kick chiropractors out of Medicare for repeated fraud, both in the form of pretending that subluxations exist for over 100 years and bilking Medicare to the tune of several billion dollars, should now grant them vastly expanded coverage under Medicare. Doesn’t sound like a winning argument, but you can bet they’ll try anyway.
Whatever the solution, taxpayers and Medicare beneficiaries shouldn’t be paying for treatment of phantom spinal lesions, whether allowed by law for covered ailments or via cheating by chiropractors billing for “maintenance therapy.” If you agree, tell your Congressional Representative and Senators.
Gatterman MI (2005). Foundations of Chiropractic: Subluxation (2nd Ed.), Elsevier Mosby, p. 8-9.