Before I get started I want to make it clear that what I am about to say is my opinion. It is based on years of study and research into Medicare Laws, Rules, and Regulations, conversations with Medicare employees, and conversations with compliance professionals inside and outside of chiropractic. I am speaking for myself and my views and opinions do not represent any other individual or organization.
That being said, I would be remiss if I did not bring to the attention of the profession as a whole the fact that bills H.R. 2654 and S. 4042 are problematic and would most likely do more harm to the chiropractic profession than they would do good. At the very least they will cause multiple years of confusion between the Centers of Medicare and Medicaid Services (CMS) and the chiropractic profession. Let me explain.
The stated purpose of these bills is; “(b) PURPOSE.— It is the purpose of this Act to expand recognition and coverage of a doctor of chiropractic as a “physician” under the Medicare program in connection with the performance of any function or action, including current service of “manual manipulation of the spine to correct a subluxation”, as is legally authorized by the State in which such doctor performs such function or action.” This language is identical in both bills.
Now at first glance that sounds really nice. “If I can legally do it in my state then Medicare will pay for it.” But if you understood CMS then you would realize that this is setting up a very undesirable situation. As Part B providers we currently deal with twelve Medicare jurisdictions overseen by seven Medicare Administrative Contractors. Each of these jurisdictions has slightly different rules for dealing with chiropractors. These rules are articulated in Local Coverage Determinations (LCD) and coverage articles.
These differences cause problems when doctors move from one jurisdiction to another. That doctor has to learn a new set of procedures before Medicare services can successfully be billed. And doctors that practice on the border of two jurisdictions have the problem of learning both sets of rules in order to treat and be paid for services provided to patients from across the border. As it is, this causes confusion and frustration.
Now, taking into consideration that each state has differences in their scopes of practice ranging from nuanced to significant, you can begin to see the magnitude of the problem. Instead of having twelve sets of rules we will now have fifty. Now doctors that practice in border communities and treat patients from across state lines will now need to learn two sets of rules.
Each Medicare Administrative Contractor will need to write a set of rules for each state that they cover taking into account that individual states scope of practice laws. Additionally, CMS will most likely step in to write regulations for those services that are common to all states such as exams and x-rays. The process of writing a Local Coverage Determination is relatively simple when compared to a Federal Regulation. The process that CMS is required to follow involves writing a proposed regulation, publishing it in the Federal Register and allowing at least a ninety day comment period, responding to the comments, modifying the regulations, and publishing the final version. I would expect it to be at least three to five years from the signing of the law to the final rules and regulations being in place before we could ever hope to be paid for these services. And that does not take into account the potential for errors and unintended consequences in the initial rules and regulations and the time needed to correct those. Also, every time a state scope of practice law changes then new rules and regulations will need to be written.
...“I don’t think that chiropractic wants to end up in the same situation as optometrists where our primary service is statutorily excluded from coverage.”
When I have expressed these concerns regarding these bills I have had some counter with the statement that “Optometrists are covered under their respective state scope of practice laws.”
That is true. The Medicare Benefits policy Manual, Chapter 15, Section 30.4 states: “Effective April 1, 1987, a doctor of optometry is considered a physician with respect to all services the optometrist is authorized to perform under State law or regulation. To be covered under Medicare, the services must be medically reasonable and necessary for the diagnosis or treatment of illness or injury, and must meet all applicable coverage requirements.” However, the Medicare Claims Processing Manual, Chapter 30, Section 50.3.2 states: “Care that is explicitly excluded from coverage under §1862 of the Social Security Act. Examples include: Routine eye care.” I don’t think that chiropractic wants to end up in the same situation as optometrists where our primary service is statutorily excluded from coverage.
Again, I want to be clear that I bear no ill will towards
any individual or group that may have been involved with the development of these bills. I simply think that they were not well thought out as to their implementation both short term and long term and as to their potential unintended consequences.
There must be a simpler way to add the payment of the necessary services such as exams and x-rays without causing cross state and cross jurisdictional confusion and without requiring years of rulemaking.
Dr. Ron Short is a 1985 graduate of Palmer College of Chiropractic and is a certified medical compliance specialist, certified professional coder, certified professional compliance officer, certified insurance consultant, and certified peer review specialist. He presents seminars and webinars across the country on Medicare, compliance, coding and billing, and documentation. He has written five books and several articles on Medicare. He is available to speak at your group or association meeting or to assist you with reviews, audits, appeals, or the development of a compliance program for your office. He can be contacted at 217-653-5921 or [email protected].
