Legislative Alchemy

Legislative Alchemy


Should health insurers be forced to cover the services of chiropractors, naturopaths, acupuncturists and massage therapists? The Affordable Care Act (ACA, or “Obamacare”) says “yes” and the American Health Care Act of 2017 (AHCA, but apparently not “Trumpcare”), recently passed in the U.S. House of Representatives by a narrow margin, agrees. The legislation is now in the hands of the Senate, where it’s passage in its current form appears doubtful. Whatever the end result, this reconsideration of Obamacare affords an opportunity to ditch mandated coverage of CAM providers, for two reasons: (1) health insurance coverage should be limited to evidence-based practices, necessarily excluding pseudoscience, and (2) CAM providers do not have sufficient education and training to competently provide the vast majority of covered benefits and, where they do, insurers cover them anyway.

Despite President Trump’s oft-repeated promise to repeal Obamacare on “Day One,” vowing to call a special session of Congress if necessary, the American Health Care Act of 2017 actually amends the Affordable Care Act and does not repeal it outright. In doing so, the AHCA retains a number of the ACA’s provisions. Unfortunately, one of those is Section 2706 of the ACA (42 U.S.C. Sec. 300gg-5), which prohibits “discrimination” in insurance coverage against health care providers practicing within the scope of their state license.

Section 2706 says:

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.

It adds that it is not an “any willing provider” law and that varying reimbursement rates can be based on quality or performance measures, a subject we’ll return to in a moment.

I have argued that forcing insurers to cover providers they would not otherwise choose to include is at odds with the ACA’s emphasis on cost-effectiveness and evidence-based practice. If we take the Republican architects of the ACHA at their word (and not everyone does) the putative reforms embodied in the AHCA are based on a free-market approach:

What we want to do is have a viable market where the insurers can offer a lot of different competing plans that are more affordable.

And:

You need to have an individual market where people care about what things cost, where people have real freedom, where those providers of health care services, be they insurers, doctors or hospitals and everybody in between, compete against each other for our business based on value, based on price, based on quality, based on outcome.

If the free market is going to determine coverage, why does the AHCA force insurers to cover CAM provider services?

History of Section 2706

By way of background, Section 2706 was not part of the U.S. House of Representatives version of the ACA, but was included in the Senate version (which ultimately passed) under the guidance of the now-retired Sen. Tom Harkin (D-Iowa), a great friend of alternative/complementary/integrative medicine and chief architect of the National Center for Complementary and Integrative Health (formerly the National Center for Complementary and Alternative Medicine), whose mission is, in Sen. Harkin’s view, to “validate” CAM. It was heavily lobbied by the American Chiropractic Association and other “CAM” providers, as well as some “conventional” providers like nurse anesthetists and optometrists. The legislative history (reports, committee minutes, floor debates and the like which precede a vote on a bill) indicates it was specifically included to prevent “discrimination” against CAM providers.

Section 2706 was rolled out with much fanfare by CAM enthusiasts, who thought it would mean instant coverage. As former American Association of Naturopathic Physicians Board member and Vermont naturopath Loirlee Schoenback, sunnily predicted:

If the law is implemented as intended NDs in 16 states [where they were then regulated] will immediately be covered by insurance.

“Implemented as intended,” Schoenback said,

suggest[s] that if insurers cover a health condition, they must pay any providers are licensed to treat that condition. If the insurer covers a service provided by medical doctors . . ., for example, it must also cover that service when provided by another legal provider, such as NDs, acupuncturists or chiropractors.

Consistent with the push for rebranding chiropractors as primary care physicians (a subject we’ve covered extensively on SBM), a chiropractic organization issued a White Paper asserting that chiropractors could act as PCPs in patient-centered medical homes, a care-improvement strategy adopted by the ACA. CAM proponents also pushed for inclusion of chiropractors, Oriental medicine practitioners, massage therapists, and naturopaths in Accountable Care Organizations, another key component of the ACA.

Back in 2013, the Department of Health and Human Services (HHS) issued guidance on just what was to be expected of insurers under Section 2706. According to HHS, insurers would be allowed to use:

reasonable medical management techniques specified under the plan with respect to the frequency, method, treatment or setting for an item or service . . . [Sec. 2706] does not require plans or issuers to accept all types of providers into a network and also does not govern provider reimbursement rates, which may be subject to quality, performance, or market standards and considerations.

[Emphasis added.]

This brought a stinging rebuke from Harkin’s Senate Committee, who told HHS to go back to the drawing board:

The goal of this provision is to ensure that patients have the right to access covered health services from the full range of providers licensed and certified in their State. The Committee is therefore concerned that the FAQ document issued by HHS … 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 the 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.

[Emphasis added.]

In other words, unless insurers could point to some performance or quality data allowing them to exclude reimbursement to chiropractors, naturopaths, acupuncturists or the like for services covered by a health plan, refusing reimbursement would violate the ACA. Of course, “performance or quality” data is notoriously lacking on CAM practices, leaving insurers in a precarious predicament: If this hard performance or quality data justifying the exclusion of CAM practitioners from providing covered services didn’t exist, would they be forced to pay up just because some state legislature had foolishly passed a licensing bill giving chiropractors, naturopaths or acupuncturists a broad scope of practice?

The Senate Committee’s rebuff led HHS to issue a request for public comment on “all aspects of interpretation” of Section 2706, which drew over 1,500 comments. While the previous guidance was withdrawn, no new guidance was forthcoming, except to say that the federal government would not take action against insurers “using a good faith, reasonable interpretation” of Section 2706, while it continued to try to figure this whole mess out.

CAM proponents push for broad implementation of Section 2706

The Integrative Health Policy Consortium, an organization promoting the wholesale integration of naturopaths, chiropractors, homeopaths, and acupuncturists into the healthcare system, takes the position:

that commercial insurers must allow all types of licensed providers to participate in their networks . . .

[Emphasis added.]

Thus, in the IHPC’s view, all insurers must reimburse for chiropractic care because chiropractors are licensed in all 50 states. Insurers in states licensing naturopaths and acupuncturists should be forced to include them in their coverage as well.

Insurers disagree. State benchmark plans still exclude certain types of providers, especially massage therapy and naturopathy.

IHPC launched a “Cover My Care” campaign designed to assist patients in lobbying for coverage. Unfortunately, nurse practitioner, physical therapy, marriage and family therapy, and other “conventional” health care practitioner organizations have allied with the IHPC, the American Association of Naturopathic Physicians, the American Chiropractic Association and the American Association of Acupuncture & Oriental Medicine to push for greater insurance coverage of their services, in an organization called the Coalition for Patients Rights (CPR).

The ACA requires insurers to cover certain “essential health benefits,” or “EHBs,” such as maternity care and an annual wellness exam. Under the AHCA, EHBs are retained, but states will be able to apply for waivers excluding particular EHBs from required coverage.

CPR created a chart promoting CAM practitioners as competent providers of the ACA’s required essential health benefits. This includes acupuncturists as providers of maternity and newborn care, rehabilitative services, mental and behavioral health, and preventative and wellness services, even though there is no evidence that acupuncture is effective for any of this (also here).

The CPR says “chiropractors and chiropractic physicians” can provide pediatric services, even though “chiropractic pediatrics” is chock full of anti-vaccination beliefs and ineffective subluxation-based treatments for children. (SBM’s own pediatrician, Clay Jones, MD, has covered a number of these: brachial plexus injury, newborn care, craniosynostosis, colic, shaken baby syndrome, SIDS, Tourette syndrome, bedwetting, and gastroesophageal reflux.)

According to the CPR, chiropractors can also provide “preventive and wellness services,” even though in chiropractic parlance this often means “maintenance care,” the idea that non-existent subluxations must be regularly “detected” and “corrected” to prevent adverse health consequences.

The CPR promotes “naturopathic physicians” as providers of EHB preventive and wellness services and ambulatory patient care, even though their education and training is insufficient (also here) and they eschew evidence-based practice, using instead dubious diagnostic tests and quack treatments like homeopathy, craniosacral therapy, and colonic irrigation, a subject we’ve discussed many times here on SBM. (See, for example, Scott Gavura’s Naturopathy vs. Science series and David Gorski’s both hilarious and disturbing take on naturopaths discussing patient care, also here.) Former naturopath Britt Hermes extensively covers these subjects on her blog, Naturopathic Diaries, as well. (For an appalling look at how naturopaths diagnose and treat endocrine disorders, check out the latest post.) Under the ACA, preventive services must include pediatric and adult vaccinations. Given the anti-vaccination stance of most naturopaths, it is a public health risk to advocate naturopaths as providers of preventive healthcare.

Practice acts are not based on science and evidence

Of course, insurers can fight back by excluding particular tests and treatments from coverage. For example, Aetna limits or won’t cover a whole slew of chiropractic, acupuncture, and other CAM treatments (and, therefore, a lot of what naturopaths do) because they aren’t evidence-based. But Section 2706 muddies the waters by focusing on whether a particular service is within a practitioner’s legal scope of practice, not on whether the service can be safely and competently provided by a particular type of practitioner, and certainly not whether there is any evidence supporting the practitioner’s care.

In the case of chiropractors, naturopaths, and acupuncturists, state practice acts, which define the scope of practice, actually incorporate pseudoscience into the law. Chiropractic scope of practice in all states includes the detection and correction of the putative subluxation. Acupuncture practice acts treat the mythical “qi” as a real phenomenon. For example, in New Hampshire:

Oriental medicine means the distinct system of health care that diagnoses and treats illness, injury, pain, or other conditions by controlling and regulating the flow and balance of energy to restore and maintain health.

Nevada is even more expansive in its definition of Oriental medicine, which includes both the practice of acupuncture and herbal medicine. “Oriental medicine” is:

that system of the healing art which places the chief emphasis on the flow and balance of energy in the body mechanism as being the most important single factor in maintaining the well-being of the organism in health and disease.

“Acupuncture” is defined as:

the insertion of needles into the human body by piercing the skin of the body to control and regulate the flow and balance of energy to cure, relieve, or palliate: (a) Any ailment or disease of the mind or body; or (b) Any wound, bodily injury or deformity.

Naturopathic practice acts frequently define naturopathy as support and stimulation of the patient’s “natural healing capacity” i.e., vitalism, a long-discredited pre-scientific notion that a supernatural force controlled bodily function. They specifically permit discredited practices like homeopathy, colonic irrigation, visceral manipulation, treatment of disease with unproven dietary supplements, and unvalidated diagnostic testing.

In sum, there is a total disconnect between science and scope of practice in state CAM practice acts. Given the use of evidence-based medicine as a means of cost control in the typical health insurance policy, Section 2706 sets the stage for inevitable conflict between providers and insurers should the government ever decide to enforce the law in the manner apparently intended by Sen. Harken and organizations like IHPC and CPR.

In addition to the conflict between science and pseudoscience, the issue of competency to perform covered services is troubling. As naturopaths and chiropractors push for primary care physician status (something naturopaths have fully achieved in Oregon), the fact that they are not sufficiently educated and trained in primary care will conflict with their state practice acts, which deem them primary care physicians nevertheless. Oregon insurers have fought this by instituting more rigorous credentialing requirements for naturopath PCPs, but this strategy to insure competent care is under attack in the state legislature via a bill forbidding them from doing so.

And consider this bill, which just passed in the Tennessee General Assembly and is now before the Governor for consideration. This legislation rewrites the traditional “detection and correction of subluxations” definition of chiropractic practice, adding to chiropractic scope of practice:

  • The differential diagnosis of human ailments through examination and evaluation of patients and through the ordering and performance of appropriate diagnostic procedures necessary to clinically correlate a physical examination to a diagnostic impression.
  • The ordering of X-rays, advanced diagnostic imaging, and other diagnostic procedures, and the performance of X-rays and other diagnostic procedures for which the chiropractic physician has received training.
  • The collection of bodily fluids and specimens for analysis.

Does this mean that Tennessee insurers will now have to cover the annual “wellness exam” provided as an essential health benefit under the ACA (and covered by the AHCA) even if performed by a chiropractor and even if though most of the preventive services mandated as EHBs are not within the chiropractic scope of practice? I think chiropractors have a good argument under the law that the answer is “yes.”

Section 2706 is consistent with neither the implementation of evidence-based cost-effective health insurance coverage nor the “free market,” which loathes any sort of government mandate. Whatever plan the Senate comes up with, it should “repeal and replace” Section 2706.

Note: Many thanks to David Gorski for graciously taking my usual Thursday post on May 11th.

Posted by Jann Bellamy

Jann J. Bellamy is a Florida attorney and lives in Tallahassee. She is one of the founders and Board members of the Society for Science-Based Medicine (SfSBM) dedicated to providing accurate information about CAM and advocating for state and federal laws that incorporate a science-based standard for all health care practitioners. She tracks state and federal bills that would allow pseudoscience in health care for the SfSBM website.  Her posts are archived here.