Medicare's Change in Policy Concerning the Provision
of Manual Manipulation of the Spine to Correct
a Subluxation by a Physical Therapist

This section is compiled by Frank M. Painter, D.C.
Send all comments or additions to:    Frankp@chiro.org

Thanks to the American Chiropractic Association for the use of this article!

FOR MORE INFORMATION, CALL:
Felicity Feather or Teri Howell
(800) 986-4636

FOR IMMEDIATE RELEASE:

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There has been much confusion as to HCFA's change in policy as it relates to the provision of the above Medicare physician service by physical therapists. The following is a chronology along with supportive documents that clearly reflects the change. ACA has filed suit against HHS Secretary Shalala that alleges that only doctors of chiropractic are authorized under Medicare laws to manipulate the spine to correct a subluxation. The following information, prepared by ACA legal counsel Tom Daly, deals with a subset of that proposition - namely, physical therapist's eligibility to deliver the service.

HCFA's Policy Prior to the Filing of ACA v. Shalala

Prior to the ACA's filing of its lawsuit against the Department, the Secretary's position was that physicians or "qualified providers" may furnish manual manipulation of the spine to correct a subluxation to Medicare beneficiaries. Attachment A is a copy of a July 8, 1998 letter from Secretary Shalala to Senator Daschle in which the Secretary states in part:

In general, Medicare +Choice plans must cover medically necessary services provided by qualified providers. One of these services that must be covered is treatment to correct a subluxation on the spine by means of manual manipulation. Since physicians and practitioners other than chiropractors are qualified to furnish this service, we do not believe that the law obligates a Medicare + Choice network plan to provide access to the services through chiropractors. (emphasis added)

Operational Policy Letter #23

The Secretary's July 8, 1998 letter and statement is fully consistent with the then existing policy reflected in HCFA's Operational Policy Letter #23, which states in part:

Managed care plans contracting with Medicare are not required, however, to offer services of chiropractors, but may use other physicians to perform this service. In addition, managed care plans may offer manual manipulation of the spine as performed by non-physician practitioners, such as physical therapists, if allowed under applicable law. (emphasis added)

ACA Files its Complaint in ACA v. Shalala on November 12, 1998

Among other things, the ACA's complaint and its amended complaint argued that physical therapists as non-physicians may not provide the uniquely chiropractic service of manual manipulation of the spine to correct a subluxation, which is also a Medicare physician service.

HCFA's Change of Position - December 8, 1998 letter to the ACA from Nancy-Ann Min DeParle, Administrator, Health Care Financing Administration.

The receipt of the above-referenced letter by the ACA approximately one month after ACA's filing of its lawsuit, detailed a substantial change in position by HCFA on the issue of physical therapists providing manual manipulation of the spine to correct a subluxation. The letter states in part the following:

We have carefully considered the issues you and others raise regarding the Medicare covered benefit, manual manipulation of the spine to correct a subluxation. The manual manipulation of the spine to correct a subluxation revealed by x-ray is expressly referenced as a covered physician service. For purposes of providing the services only, the statute also states that a chiropractor is included in the definition of "physician". It does not follow, however, that this service cannot be provided by others who meet the definition of physician for all purposes, such as osteopaths. While M + C organizations are obligated to provide the benefits with access to all Medicare - covered services, including manual manipulation of the spine meeting Medicare coverage criteria, they are not under an obligation to provide this service through a particular type of "physician." (emphasis added)

The above language makes it clear that this service is to be provided by a "physician". Chiropractors, osteopaths and medical doctors are all defined as "physicians" under the Medicare statutes (42 U.S.C. § 1395x (r)); physical therapists are not. Therefore, Medicare's prior policy enunciated in the Secretary's July 8, 1998 letter that the service may be provided by "physicians and other practitioners" had been changed to a position that the service may only be provided by a "physician", and physical therapists are not "physicians."

Additional Confirmation Of Change In Policy - Letter February 19, 1999 from Nancy-Ann Min DeParle, HCFA Administrator to Congressman Lane Evans

The Administrator of HCFA restated the change in policy in a separate letter to Congressman Lane Evans which states in part:

For the purposes of providing this service only, the statute states that a chiropractor is included in the definition of "physician". Therefore, under the statute this service may be provided not only by a chiropractor, but by other individuals who meet the definition of physician for all purposes as well. (emphasis added)

Again, physical therapists do not meet the definition of physician for Medicare purposes and, therefore, may not provide the physician service of manual manipulation of the spine to correct a subluxation.

June 17, 1999 Testimony of Dr. Thomas Gustafson, Director HCFA Plan and Provider Purchasing Group Before the Practicing Physician Advisory Council (PPAC).

Attached is a portion of the official transcript from the above-referenced meeting of the Practicing Physician Advisory Council. During the Council deliberations, Dr. Gustafson was asked a specific question as to whether non-physicians or physical therapists may provide the service of manual manipulation of the spine to correct a subluxation. His response was no and he elaborated as follows:

Because there has been some confusion about the ability of physical therapists to be paid for delivering this service under Medicare, and I believe at one time, we --- our interpretation was yes, that was okay, we have come to a more mature understanding of what the statute in fact provides, and physical therapists are not permitted to bill Medicare or to be billed for Medicare for this service. (emphasis added)

Dr. Gustafson's comments were completely consistent with the letters of December 8, 1998 and February 19, 1999 from the HCFA Administrator, clearly showing the change in position from the policy enunciated by the Secretary in her July 8, 1998 letter.

September 2, 1999 Position Taken by the Government in it's Memorandum of Points of Authorities in Support of its Motion to Dismiss ACA v. Shalala

As previously indicated, the ACA filed suit to, among other things, stop physical therapists from providing the Medicare physician services of manual manipulation of the spine to correct a subluxation. In response to ACA's complaint, the government stated to the District Court on page 10, footnote 8 of its above-referenced memorandum, the following:

Thus, we agree with Plaintiff that an M+C organization could not purport to make this physicians service available to enrollees through a physical therapist, and must have physicians available to perform this service (whether it be chiropractors or other physicians who perform manual manipulation). (emphasis added)

Again, a clear and unequivocal statement by the government to the District Court that this service must be performed by a physician and cannot be performed by a physical therapist who is not a physician.

November 4, 1999 Letter to APTA Counsel by Lena Robins

It is important to note, that what appears to be a clear change in policy restated not once but on four separate occasions by official representatives of Medicare, including the HCFA Administrator herself, has been confused by a letter written on November 4, 1999 by the governments lead attorney (Ms. Lena Robins) in ACA v. Shalala. In that letter the government's attorney, without any legal reference whatsoever, stated that physical therapy services "may be offered to an enrollee as an alternative to receiving the physicians' service ..." (emphasis added). The letter has been a source of confusion since it has been interpreted by some to take a position different from the position taken by the government before the District Court. It is interesting to note that Ms. Robins withdrew her appearance from the pending lawsuit after the ACA filed a memo complaining about the letter with the District Court. Nevertheless, the letter continues to obfuscate the distinction between physical therapy services and physician services. Under no circumstances is there legal authority under the Medicare laws to allow physical therapists to perform manipulation of the spine to correct a subluxation, a physician service.

November 26, 1999 - Reclarification of policy to Federal District Court in ACA v. Shalala

The government filed a response with the District Court in connection with ACA objection to the Robins letter of November 4, 1999. In its response, the government reclarifies its position as originally stated to the District Court and again states in unequivocal terms:

As explained in footnote 8 of the Secretary's Motion to Dismiss, a physical therapist is not qualified to provide a "physicians' service" because such a practitioner does not meet the definition of "physician" in Section 1395x(r) and, therefore, cannot be paid by Medicare for providing the service defined in 1395x(r)(5) as manual manipulation of the spine to correct a subluxation. (emphasis added) (footnote 2, page 3)

For more information, contact ACA's Legal Department at 800/986-4636.

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