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Obamacare and CAM II: Discrimination (or not) against CAM

Supporters of science-based medicine have expressed concern over this provision in the Patient Protection and Affordable Care Act (“Obamacare,” or the “ACA.”):

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 from establishing varying reimbursement rates based on quality or performance measures.

Section 2706 (now codified as 42 U.S.C. Sec. 300gg-5) goes into effect in 2014 and covers virtually all individual and group insurance market policies, although it is not clear whether it will apply to existing policies “grandfathered” in 2010 by the ACA.

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 (surprise!) Sen. Tom Harkin (D-Iowa). 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.  This is of obvious concern to anyone who supports science-based, or for that matter evidence-based, medicine, as there is nothing to indicate that scientific plausibility or evidence (or the lack thereof) actually affects CAM practices. It should also concern insurers and those who pay for insurance (employers and individuals) to the extent it might require payment for CAM treatments, as ineffective treatments will negatively affect their bottom line. The U.S. Departments of Health and Human Services (HHS) and Labor and the Treasury Department, which are charged with issuing regulations implementing the ACA, have not yet promulgated regulations for Section 2706. The American Medical Association House of Delegates has already passed a resolution seeking its repeal.

There is no discussion of exactly what this provision might mean or how it will be implemented in the legal literature, or, for that matter, any health care literature that I can find. On the web, CAM practitioners and proponents claim it will “end discrimination” against CAM by insurance companies, although I can find few examples of exactly how they think they’ve been discriminated against. According to one chiropractic commentator, chiropractors have been excluded from coverage for spinal manipulation in some cases, or in others reimbursed at a lower rate than M.D.s, but that is all I could find in the way of specific examples. There is even less about exactly how CAM practitioners expect to benefit. While the American Association of Acupuncture and Chinese Medicine and the American Association of Naturopaths welcomed the passage of Section 2706, they don’t offer specifics as to how it might increase insurance coverage for their practices although I imagine they’re busy figuring out the details, perhaps not in a way that’s open for public viewing.

To the extent CAM practitioners expect Section 2706 to increase insurance coverage for their services or increase reimbursement, yes that will likely happen to a certain extent. And of course the ACA greatly increases the number of insured people. But I don’t expect it to be quite the boon they seem to be expecting. And here’s why.

Discrimination

But first, a little legal tutorial. A central question in interpretation of Section 2607 is how the term “discriminate” will be defined. It is undefined in the ACA or in any regulations (so far). Very broadly, to “discriminate” means to treat a person differently than others based on a group to which he belongs rather than on merit.

In enacting regulations, I anticipate the federal agencies charged with promulgating them will look to the well-developed body of law of employment discrimination. First, there are some similarities between choosing workers to do a particular job and choosing health care providers to perform particular services. Second, it avoids having to completely reinvent the wheel. Third, it is an area with which one of the agencies involved, the Department of Labor, already has considerable expertise. Fourth, insurers, who are themselves large employers, are already familiar with compliance with the anti-discrimination laws.

So let’s have a very brief look at some basic principles of employment law to understand what “discrimination” might mean. Discrimination can be overt (“I’m not hiring you because I don’t think women can be delivery drivers.”) Or discrimination can be in the form of an employment practice that has a disparate impact on a particular group. (The ability to lift 75 pounds for a delivery driver position will have an adverse impact on the hiring of women.) However, criteria reasonably related to the requirements for a job are not discriminatory even if they have an adverse impact on a particular group. (The ability to lift 75 pounds is a legitimate criterion due to the fact that delivery drivers will regularly have to lift this amount of weight.) This includes education, training or a having a particular type of license or certificate as long as they are reasonably related to requirements of a particular job. (Having a commercial drivers license for the delivery driver position would be a permissible job requirement, because it’s required by law, even though it would have a disparate impact on women because fewer women have this type of license.)

Given the assumption that employment law principles will be incorporated into interpretation of Section 2706, what will be the effect of the “Non-Discrimination in Health Care” section of the ACA on CAM practices? At this point, we can’t know, but here are some thoughts.

Being a covered provider doesn’t mean everything you provide is covered

First, the ACA prescribes 10 broad areas of coverage that must be provided by (virtually) all insurance plans. These categories are:

  • Ambulatory patient services
  • Emergency services
  • Hospitalization
  • Maternity and newborn care
  • 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

One notable feature of this list is that most of these categories aren’t within an acupuncturist’s or chiropractor’s scope of practice. A greater number are within that of a naturopath, although scope of practice varies among the 16 states in which they are licensed. You can look forward to naturopaths making a huge effort to further expand their licensing because insurers can no longer exclude licensed naturopaths as a group from coverage. However, this cuts both ways. In order to get insurance companies out of the game, naturopaths have previously been able to exclude themselves from mandated coverage to get a naturopath licensing law passed. That is no longer an option. This will give insurance companies a reason to fight their licensing bills if insurers think naturopaths will drive up their costs.

As explained in a previous post, instead of promulgating a defined set of benefits deemed “essential” for insurance coverage, the Department of Health and Human Services (HHS) has punted to the states to choose a “benchmark” plan from certain types of health plans sold in each state. On October 1st, states not making that choice automatically defaulted to a federal employee insurance plan as the benchmark.

Nevertheless, federal regulations are being put into place which specifically define “essential health benefits.” This has already been completed for preventive services, which must be covered without any co-pay or having to meet a deductible. And what do they include? For all adults, services recommended by the  U.S. Preventive Services Task Force (USPSTF) for prevention which have an evidence grade of “A” or “B.” For children, it includes routine vaccinations recommended by the Advisory Committee on Immunization Practices of the Centers for Disease Control as well as preventive care guidelines for children from the American Academy of Pediatrics. For women HHS apparently developed its own list. (All of the guidelines can be found here.)

And is there a CAM diagnostic method or treatment among them? Nope.

But, you may well ask, could some of these preventive services be provided by a CAM practitioner, even though they are science and evidence based? That is highly unlikely to happen for chiropractors and acupuncturists, despite chiropractors’ claims otherwise or the alarming scope of practice granted to acupuncturists.  Many of the services (e.g., adult and childhood vaccinations) are simply not within their scope of practice. And while chiropractors may claim to offer some of the preventive services (e.g., obesity screening and counseling) most people are going to have these services provided by their primary care physicians. This is because the ACA requires everyone to select a primary care physician, which can be a pediatrician for children. (In addition, women are not required to get a referral for OB/GYN-provided preventative healthcare.) Why would anyone get obesity counseling from his chiropractor if he is already getting it from his PCP? And, if he does get it, I seriously doubt the insurer will pay for it twice.

This does leave open the possibility that naturopaths could be designated as PCPs by patients in states where they are licensed to provide the full range of PCP services. However, if the naturopaths wish to be reimbursed for preventive services, they will have to stick to those mandated by the HHS. And any treatment will have to be covered by the insurer or the patient will have to pay for it out of pocket. For example, one covered preventive service is diabetes screening for adults. But that will not force insurers to cover non-EBM/SBM naturopathic practices like this, as described on the American Association of Naturopathic Physicians website:

Patients [with diabetes] will be given various supplements, which are invaluable. They work synergistically with the other aspects of the comprehensive protocol to replace deficient nutrients; help lower their glucose levels and decrease their insulin resistance; reduce inflammation, lipids and blood pressure; and protect them from diabetic induced damage. Patients may at times need to continue on standard prescriptive medication, may need to start medications or commonly, due to naturopathic care, may be able to reduce or stop medications. The naturopathic physician will effectively monitor the need for medication and make appropriate suggestions about the need for their use. . . . Naturopathic treatment of diabetes can be incredibly effective and naturopathic physicians should be the first type of doctor a diabetic patient seeks out for long term care.

Which brings me to this thought: now that everyone will have insurance coverage, I wonder how long it will take patients to figure out that, if they go to an M.D., D.O., or A.R.N.P as their PCP, their diagnosis and treatment is covered, but when they go to an N.D. as their PCP, not all of their diagnoses and treatments are covered.

But I digress.

Different treatment is not always discriminatory treatment

Let’s examine a few scenarios where the same therapy is provided by both a CAM practitioner and conventional practitioners. (All scenarios assume these practitioners are within the insurer’s provider network.)

Scenario 1:

Three providers, a D.O., and physical therapist and a chiropractor, provide spinal manipulation for low back pain. Assuming an insurer covers spinal manipulation as a treatment for low back pain, will the insurer have to reimburse for it at the same rate, no matter who provides it?

Yes, I think so.

Scenario 2:

Same facts, but a chiropractor manipulates the cervical spine, based on his “detection” of a “subluxation” in the neck, which he thinks is causing the low back pain.

No payment, because the insurer’s not covering treatment based on diagnosis of a chiropractic subluxation is not “discrimination” against the D.C. Even though the chiropractor is being treated differently than the D.O. or the P.T. (charges for his spinal manipulation for back pain are not reimbursed) there is a reasonable, non-discriminatory reason for it (subluxation is not a valid diagnosis).

Scenario 3:

Same facts as 1. The insurer limits spinal manipulation for low back pain to a course of four treatments. The D.C. wants to perform a course of eight manipulations.

Not reimbursing for the full course of eight treatments is not discrimination unless the D.C. can show the limitation to four treatments is a pretext for discrimination against chiropractors, who routinely prescribe more manipulations for low back pain than D.O. or P.T.s. However, if the scientific evidence supports four treatments as the standard recommended therapy for acute back pain, the insurer has a reasonable, non-discriminatory reason for refusing coverage, thus there is no discrimination against the chiropractor.

Scenario 4:

Same facts as 1. Chiropractors seek higher reimbursement rates from insurers, claiming they have better education and training in performing spinal manipulation than P.T.s and therefore should be reimbursed at a higher rate.

It would be a violation of the Act for insurers to raise rates for chiropractors but not P.T.s because current evidence does not support the conclusion that chiropractic manipulation is any more effective than that done by P.T.s. Under the Act, insurers can differentiate between providers giving the same treatments for the same condition only if quality or performance measures support that differentiation.

I’ll leave it at that with the hypotheticals with the warning that many more such factual situations will have to be resolved as the law is fleshed out. (Such as: What if a naturopath can provide some, but not all, preventive services? Will the insurance company have to reimburse her for those within her scope of practice, allowing the patient to split his preventive care between a naturopath and his M.D. PCP? What about a chiropractor who claims he practices “pediatric chiropractic?”)

Stay tuned

I’ll be following development of the ACA as it relates to CAM providers  and report back to you. Coming soon: The “Patient-Centered Medical Home” and CAM.

Posted in: Acupuncture, Chiropractic, Legal, Naturopathy, Politics and Regulation

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