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Non-Sanctioned Essential Benefits Campaign

IMPORTANT MEMORANDUM

September 13, 2010

From: Dr. Rick McMichael, President-American Chiropractic Association

Dr. Frank Nicchi, President-Association of Chiropractic Colleges

Dr. Jeffrey Fedorko, President-Congress of Chiropractic State Associations

Dr. Gary Walsemann, President-International Chiropractors Association

To: Member doctors, state associations, colleges and chiropractic supporters

RE: Non-sanctioned Wisconsin Chiropractic Association essential benefits campaign

The Executive Director of the Wisconsin Chiropractic Association (WCA) recently distributed a mailer. This mailer urged doctors of chiropractic and patients to contact the U.S. Department of Health and Human Services on "essential benefits,” one aspect of the Patient Protection and Affordable Care Act (PPACA). Given the magnitude of this issue, we are providing more detailed information to help clear up any confusion.

The WCA mailer calls for an ill-timed letter-writing campaign and implies that the ACA and the Chiropractic Summit members did not work to include chiropractic services as part of the essential benefit package under the PPACA. This is, of course, unfounded and could not be further from the truth. In light of our historic work within the Chiropractic Summit, this WCA communication is also disappointingly divisive.

This WCA campaign is an independent effort, not coordinated with, or endorsed by, the Chiropractic Summit which includes ACA, ACC, COCSA, ICA and 36 other chiropractic organizations.[i] We have asked the profession to remain coordinated with the Summit, as we work together to set plans, create messages and take action. The vast majority of our state associations have worked with us enthusiastically and collegially. ACA, ACC, COCSA, ICA and all Summit partners are thankful for this support. WCA has chosen to promote this "campaign” unilaterally, despite requests not to do so. The dangers of mixed signals, wasted resources and poor timing have been identified and explained to them by our national government relations experts, including former House Majority Leader Dick Gephardt, who is under retainer by the ACA.

So you are aware, here is our plan of action:

1. The ACA, ICA, ACC, COCSA and Chiropractic Summit partners will prepare detailed regulatory submissions, which can be used by state associations, individual doctors and concerned patients. These regulatory submissions will be provided in a variety of formats (detailed and abbreviated) for ease of use. We have met with Secretary Sebelius and we are meeting with Secretary’s office in the near future. Information gained will help us determine a timeline for the completion of needed submissions and materials.

2. We will continue our coalition efforts with organizations whose views on the essential benefit and non-discrimination issues substantively match our own.

3. ACA, ICA, ACC, COCSA and Chiropractic Summit partners will continue to develop strategies for appropriate regulatory responses and any grassroots support needed to amplify those responses on Capitol Hill or with the administration. These issues will be discussed with state associations on an ongoing basis, as well as other critical issues that arise.

4. This ongoing information-sharing process will afford state associations the opportunity to have significant input in the regulatory process and to coordinate their grassroots activities for maximum effectiveness.

5. State associations are urged to continue their support for the grassroots database of ChiroVoice.org and AdjustTheVote.org, since much of the communication to HHS and Capitol Hill will be electronic.

BACKGROUND:

The Patient Protection and Affordable Care Act and Essential Benefits

· The ACA, ICA, ACC, COCSA and the Summit partners lobbied aggressively for specific inclusion of "chiropractic services” in the PPACA statute. Making sure chiropractic services were part of the legislation was an integral part of a 15 month campaign where nearly 100,000 messages, from doctors and patients alike, were sent to Capitol Hill. However, we were advised by key congressional players throughout the process, that it was the specific intention of the bill’s drafters to avoid listing specific provider types and services in the bill, as it was believed that doing so would cause great controversy and potentially cripple chances of the bill’s enactment. The essential benefits issue was a major factor in the health reform debate of 1993-94 that Congress sought to avoid during this iteration of health reform.

· Recognizing the practical obstacles in specifically naming chiropractic as a specified service, we devised and sought the inclusion of additional "guidance” language to be considered by the HHS Secretary in developing the essential benefits package. Such guidance language was intended to be considered during the conference between the House and Senate, but, as you know, such conference never took place.

· We pursued a "dual strategy” of seeking the inclusion of provider non-discrimination language (Section 2706) as a means of ensuring the inclusion of chiropractic services, and were successful in winning inclusion of a substantial and far-reaching provider non-discrimination provision.

· The critical point to remember is that Section 2706 will apply to all ERISA plans, both fully insured and self-insured, with plan dates of 2014 and beyond. The Section 2706 non-discrimination provision prohibiting discrimination in terms of participation and coverage will also apply to employee welfare plans of federal, state and municipal governments as well as to the state exchange plans, and to 32 million currently uninsured Americans that are envisioned to obtain coverage under the PPACA. The scope of the application of Section 2706 is extensive and unprecedented. It breaks down the barriers of ERISA preemption of self-insured plans and expands notions of non-discrimination in terms of participation or coverage to virtually the entire scope of employee benefits and insurance plans. In short, Section 2706 and its assurance of non-discrimination in terms of participation and coverage effectively requires that doctors of chiropractic shall not be discriminated against in the provision of any "essential benefit” that is within their scope of practice. The Congressional Research Service confirmed the reach of Section 2706. The National Association of Chiropractic Attorneys recognized the Sec. 2706 provision as having "historic and profoundly positive legal ramifications for the chiropractic profession and the patient community it serves.”

· We also successfully avoided having chiropractic appear in the PPACA in a manner equivalent to "dental” and "vision” services. These services are clearly viewed as "add on” services and with the exception of "pediatric dental” services, the statute regards them as optional, add-on services and not part of the "essential benefits package.” If chiropractic had been formally lumped into this category, it would have undermined arguments that chiropractic services should be considered part of the essential benefits package.

· Although the specific types of services that must be included in an essential benefits package are not all delineated in PPACA, it is clear that the Secretary of HHS must provide an opportunity for public comment regarding what services should constitute essential benefits (Sec. 1302 Paragraph 3). Any assertion that ACA, ICA, ACC, COCSA and Summit partners have somehow missed the opportunity to fight for the inclusion of chiropractic services in the essential benefits package is misguided. The opportunity to provide public comment has not begun. Furthermore, PPACA requires the Secretary of Labor to conduct a survey of employer-sponsored coverage to determine the benefits typically covered by employers and provide a report on the survey to the HHS Secretary (Sec. 1302 Paragraph 2). These provisions clearly demonstrate that determining essential benefits will be an ongoing process. ACA, ICA, ACC, COCSA will continue to be actively engaged with our Summit partners in this process.

· The PPACA statute does establish some broad categories for the types of services that must be included in the essential benefits package: ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, including behavioral health treatment, prescription drugs, rehabilitative and habilitative services and devices, laboratory services, preventive and wellness services and chronic disease management. A strong argument can be made that chiropractic services fit under the general categories of ambulatory patient services, rehabilitative services or preventive and wellness services. The precise services included in the essential benefits package will be made clear in the regulatory process. ACA, ICA, ACC, COCSA and Summit partners stand ready to participate in that process to ensure chiropractic care is considered an essential benefit. We will carefully monitor the development and implementation of all regulations that will impact the essential benefits and provider non-discrimination issues and we will continue our work to ensure that they are written in a manner favorable to chiropractic patients and providers.

We want to thank all our associations and members across the country, who are standing together with Chiropractic Summit partners (listed below) and working as one team with centrally directed messages and actions. Working together in a coordinated fashion will ensure us the greatest opportunity to accomplish our objectives for removing discrimination from health care and advancing the chiropractic profession.

[i] Chiropractic Summit members:

American Chiropractic Association, Association of Chiropractic Colleges, Congress of Chiropractic State Associations, International Chiropractors Association, National Board of Chiropractic Examiners, National University of Health Sciences, Breakthrough Coaching, NCMIC, Canadian Chiropractic Association, New York Chiropractic College, Canadian Memorial Chiropractic College, Northwestern Health Sciences University, Palmer College of Chiropractic, Council on Chiropractic Guidelines & Practice Parameters, Parker College of Chiropractic, Chiropractic Economics, Sherman College of Chiropractic, Cleveland Chiropractic College-Kansas City & Los Angeles, Southern California University of Health Sciences, Standard Process, David Singer Enterprises, Dynamic Chiropractic, Federation of Chiropractic Licensing Boards, Foot Levelers, Texas Chiropractic College, Foundation for Chiropractic Progress, The American Chiropractor, Foundation for the Advancement of Chiropractic Tenets & Science, The Masters Circle, University of Bridgeport College of Chiropractic, Life Chiropractic College - University of Western States, Life University, World Federation of Chiropractic, Activator, Logan Chiropractic College, American Black Chiropractic Association, Council on Chiropractic Education (non-voting), National Association of Chiropractic Attorneys (non-voting), Student American Black Chiropractic Association (non-voting), Student International Chiropractors Association (non-voting), Student American Chiropractic Association (non-voting)


 

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