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VCA News and Updates

Go to:
ACA/VCA Lawsuit Against Trigon Blue Cross Blue Shield of Virginia
Excerpts from The Virginia Voice
Health Insurance Incident Report Form
Assignment of Benefits Form
ERISA Practitioner Education Materials
Attorney General's Ruling on Physical Therapy
Special HCFA Guidelines Update
P.A.R.T. Guidelines

Medicare Fraud Alert

 The following is an excerpt from a 1/10/05 message from The Centers for Medicare & Medicaid Services (CMS):

"This is to inform you that Medicare is aware of an organized group who is representing themselves as either a Medicare Fraud Investigator; or a Medicare employee from the enrollment, claims or audit units.  These callers tell the physician, or office personnel, that the Medicare computer system has had a malfunction and they need to update lost information."

Find the complete text of this CMS alert in the members-only section. To teach you how to handle Medicare documentation and billing properly and effectively, attend VCA’s seminar in Norfolk on Saturday, February 26th.

May 7, 2004

ACA TO CONSIDER NEXT STEP IN TRIGON CASE, CONTINUE FIGHTING BATTLE WITH HHS

Doctors of Chiropractic Continue to Reap Benefits of ACA Legal Action

Arlington, VA - The American Chiropractic Association (ACA) is determining its next course of action in its lawsuit against Trigon Blue Cross Blue Shield of Virginia, after the U. S. Fourth Circuit Court of Appeals ruled yesterday against ACA’s appeal in the case. ACA plans to announce its next move pending a thorough review of the opinion handed down by the court. Meanwhile, ACA continues to pursue justice for the chiropractic profession in its ongoing, “charter” lawsuit against the U.S. Centers for Medicare and Medicaid Services (CMS), a division of the U.S. Department of Health and Human Services.

“While we are obviously disappointed by this decision, we stand firm in our conviction that moving forward with the Trigon lawsuit was the right thing to do for the chiropractic profession,” said ACA President Donald J. Krippendorf, DC. “The ACA continues to fight tooth and nail for justice for the chiropractic profession - and our dedication and determination in the Trigon lawsuit has only underscored our willingness to stand tall for chiropractic.”

Through its lawsuit against Trigon -- which addresses what ACA believes to be discriminatory reimbursement practices against doctors of chiropractic -- ACA alleges antitrust violations, citing Trigon’s decision to pay doctors of chiropractic 40 percent less than what it pays medical doctors for identical services, block referrals to doctors of chiropractic, inappropriately reduce codes and establish discriminatory limits and caps. ACA’s lawsuit against CMS - which gets to the heart of chiropractic -- seeks to secure the Medicare chiropractic benefit, “manual manipulation of the spine to correct a subluxation,” as a chiropractic-only service.

Despite the setback, the chiropractic profession has already made significant progress in the insurance arena thanks to the Trigon litigation. The National Blue Cross Blue Shield Association and the ACA have begun working cooperatively to improve chiropractic reimbursement in BCBS plans nationwide.

One tangible benefit that is a direct result of ACA’s legal action is a new chiropractic benefit - worth an estimated $120 to $140 million per year -- in the Federal Employee Health Benefits plan administered by Blue Cross Blue Shield.
Another favorable outcome of the Trigon case is the launching of the Blue CCHiP program (Blues/Chiropractic Clinical Healthplan Program), a liaison program that has allowed doctors of chiropractic to become integrated into local Blue Cross Blue Shield medical policymaking committees across the country.

“These victories did not come by accident,” explained Dr. Krippendorf. “They are substantial benefits derived from the support we’ve received from so many in our profession who want what is best for chiropractic. We’ve received assistance in our legal battles from all corners of our profession because we’re doing the right thing. We remain dedicated to protecting the rights of doctors of chiropractic, and we will do what we believe is the next right thing to do. ”

The ACA will update the profession regarding the next steps in the legal process pending a thorough review of the court’s opinion.

For more information, call Patrick Bernat or Felicity Feather, ACA Communications Dept., 800-986-4636.

McAndrews Fights for Trigon Appeal

FOR MORE INFORMATION, CALL:

Patrick Bernat or Felicity Feather Clancy
800-986-4636

FOR IMMEDIATE RELEASE: March 1, 2004

VETERAN ATTORNEY MCANDREWS FIGHTS FOR TRIGON APPEAL BEFORE THREE-JUDGE PANEL

ARLINGTON, VA -- With his characteristic repertoire of blistering truths and colorful analogies, ACA General Counsel George McAndrews pulled out all the stops Feb. 24 to convince a federal three-judge appellate panel that insurance giant Trigon Blue Cross Blue Shield conspired to discriminate against doctors of chiropractic.  During the hearing in Richmond, VA before the U.S. Court of Appeals for the 4th Circuit, McAndrews presented oral arguments laying out the reasons why he believes the case deserves to be sent back to the district court for trial.

“Once in a while, everything needs to default to common sense,” McAndrews implored the judges.  “To say there is no conspiracy here ignores reality.”

During the hearing, McAndrews and attorneys for Trigon each had a total of 20 minutes to state their cases and respond to questions from the judges.   McAndrews used 14 minutes of his time to present evidence that Trigon had altered the federal government’s 1994 guidelines on acute low back pain to remove reference to chiropractic-style spinal manipulation - purely for economic reasons.  Trigon’s new “referral” guidelines, co-authored by representatives of most of the state’s medical physician trade associations and medical schools, effectively directed low back patients away from chiropractors and to pharmaceutical treatment by medical doctors, he said.   McAndrews then saved his six remaining minutes to use for rebuttal following Trigon’s presentation. 

“They changed the critical definition of manipulation,” McAndrews explained.  “The evidence is that they weren’t trained in [manipulation].  It was panic time.”

During their 20-minute presentation, Trigon attorneys contended there was no evidence of a conspiracy and that doctors of chiropractic were paid less than medical doctors because they are not as highly educated.   According to Trigon attorneys, a for-profit company such as Trigon has every right to make business decisions that it feels make the best business sense.

During his rebuttal time, McAndrews challenged the Trigon attorneys’ assertion that doctors of chiropractic are less educated and should therefore make less money than medical doctors.  McAndrews explained that, while the medical doctors controlling Trigon base their decisions to discriminate against doctors of chiropractic on monetary issues, professional pride also comes into play.  McAndrews quipped that medical doctors/M.D.s see themselves as “Major Deities,” but they sneer at other professionals with doctoral degrees, including judges and attorneys who have J.D. degrees, as merely “Just Docs” - a statement that elicited knowing chuckles from the judges.  McAndrews concluded by emphatically reiterating that Trigon’s and its medical physician co-conspirators’ actions constituted medical fraud and were based on “pure economic greed.”  He reminded the court that every person who

After the hearing, McAndrews had positive comments about the process.  “We were impressed by the depth of knowledge shown by the panel,” he said.  “It is clear that they carefully read our briefs and were prepared to ask knowledgeable questions about the legal conflict that exists between medical doctors and chiropractic doctors. They questioned both sides fairly and I can only hope that common sense prevails. It appeared that the court was very bothered that the chiropractic doctors were left with no apparent recourse or remedy for a rather apparent series of wrongs perpetrated by Trigon and its co-conspirator medical trade associations.”

A full courtroom - with many supporters from the chiropractic profession -- was on hand to witness this historic event.  In addition to McAndrews’ legal team, spectators included ACA President Donald J. Krippendorf, DC, ACA Chairman George B. McClelland, DC, ACA Executive Vice President Garrett F. Cuneo, ACA Legal Counsel Tom Daly, ACA Media Spokesperson Jerome McAndrews, DC, Former ACA Chairman Louis Sportelli, DC and ACA Vice President of Communications Felicity Feather Clancy.

A decision about the case from the appellate court could be rendered within one to six months after the oral arguments.   For a full copy of the appeal brief and full transcript of the 2/24/04 oral arguments, visit ACA’s Web site at www.acatoday.com/pdf/trigon_appellants_brief.pdf.

Lawsuit Talking Points

Taking their outrage over discriminatory reimbursement policies to court, the American Chiropractic Association (ACA), the Virginia Chiropractic Association (VCA), five doctors of chiropractic and 18 chiropractic patients have filed suit in U.S. District Court against Virginia’s largest managed health care company, Trigon Blue Cross Blue Shield and the national Blue Cross Blue Shield (BCBS) Association, raising allegations of racketeering, extortion, mail fraud and antitrust violations and other state and federal law violations. The suit also seeks to invalidate the BCBS trademark because of these illegal activities.

Chiropractic patients in Virginia and across the country have been subjected far too long to denial of much-needed chiropractic care. This lawsuit is by far the most significant and aggressive legal action ever taken by the chiropractic profession against the insurance industry. In fact, the lawsuit argues emphatically that insurance companies must scrupulously adhere to accepted legal standards.

Blue Cross Blue Shield has a long, sorry history of discrimination against the chiropractic profession – holding on to an outdated attitude that doctors of chiropractic have no place in the nation’s health care system. With the advent of state insurance equality laws that made it illegal to discriminate against doctors of chiropractic, BCBS had to find another way to discriminate against the chiropractic profession. Their current tactics are a sorry attempt to circumvent insurance equality laws by discriminating against the specific services doctors of chiropractic provide.

The impact of this lawsuit on the managed care industry could be far-reaching, with national significance beyond just Trigon and BCBS Association. Many BCBS plans and other insurers have adopted policies that single out doctors of chiropractic for special discriminatory treatment. The ACA/VCA lawsuit directly draws into question the legality of this special treatment, drawing upon federal anti-trust, trademark and RICO statutes, as well as state statutes and common law. It is intended to also change the way managed care plans nationwide have ignored accepted legal standards.

In an effort to further explain the enormity and seriousness of the charges against Trigon, the BCBS Association and their medical co-conspirators, the ACA provides below a detailed description of each of the lawsuit’s eight counts and a practical explanation for what each of these counts means to the chiropractic profession – and the managed care industry.

Count I – Trademark and Anti-Trust Violations Against Trigon Companies, the Blue Cross Blue Shield Association and Medical Doctors: This count alleges that Trigon and its medical doctor co-conspirators – the BCBS Association and MD advisors – have launched an illegal boycott against doctors of chiropractic and have tried to force them out of the marketplace by refusing to pay for recognized services or by providing unreasonable and unconscionably low reimbursement. This count also demands the revocation of the BCBS trademark and anti-trust remedies.

Specifically, Trigon and BCBS have:

• Imposed a $500 cap on spinal manipulation that principally penalizes patients of doctors of chiropractic;
• Reimbursed doctors of chiropractic 40 percent less than medical doctors for the same services;
• Paid doctors of chiropractic for the lowest level manipulation treatment code possible, despite the fact that a higher level manipulative treatment has been performed;
• Refused to reimburse for the services of chiropractic assistants.

The bottom line:

• Trigon, the BCBS Association and medical doctors have tried to exclude doctors of chiropractic from the managed care network by refusing to pay for recognized services, or by paying unconscionably low – or no – reimbursement.
• These unlawful acts restrain trade by keeping patients away from doctors of chiropractic. Trigon has steered potential patients away from chiropractic care by denigrating chiropractic treatment and by unreasonably limiting the coverage of chiropractic treatment under healthcare plans that it administers.
• This count, as well as Count II, contains a unique and aggressive approach against the national BCBS Association. In addition to an anti-trust remedy, it seeks to invalidate the BCBS trademark, because the national BCBS Association has essentially condoned Trigon’s treatment of doctors of chiropractic – knowingly allowing them to discriminate against the chiropractic profession under the auspices of the BCBS logo.

Count II – Hurting Patients by Monopolizing the Marketplace for Treatment of Neuromusculoskeletal Conditions: This count alleges that Trigon, the BCBS Association and medical doctors have interfered with the rights of patients by forcing them, through restrictive policies, to see medical doctors rather than doctors of chiropractic.

• Not only have Trigon, the BCBS Association and medical doctors conspired to boycott and refused to deal with the chiropractic profession, but they have also attempted to monopolize the market for treatment of neuromusculoskeletal conditions by pushing doctors of chiropractic out, and then taking over the market for themselves.

Count III – Violations of the Racketeer Influenced and Corrupt Organization (RICO) Act through Coercion, Extortion and Mail, Wire and Securities Fraud: This count alleges that because Trigon is such a dominant force in the health care marketplace in Virginia, it is able to exploit fear in doctors of chiropractic by forcing them to make a "Hobson’s Choice" – either accept the predatory and punitively low reimbursement rates Trigon allows, or face exclusion from the Trigon network, the largest managed care plan in the state of Virginia. Additionally, this count charges Trigon with a "scheme to defraud," for knowingly misrepresenting its reimbursement policies to the Securities and Exchange Commission.

• By charging violations of the RICO Act, this count duplicates the use of the RICO Act against a hospital, a professional condominium association and numerous medical physicians that discriminated against a neurosurgeon for practicing with a chiropractor.
• Trigon tells DC’s, "The only way you will get patient’s is if you agree to the terms." However, these terms can be changed on a whim.
• Doctor’s of chiropractic fear that their reputation will be diminished if they don’t adhere to Trigon’s terms. In other words, they are being coerced into adhering to them.
• These points are perfect examples of why managed care reform, such as the Patients’ Bill of Rights and the Campbell bill, are so important. Trigon can dictate these unfair, discriminatory policies, but doctors of chiropractic are not allowed to join together to talk to their colleagues and negotiate terms with Trigon.
• According to the suit, Trigon says they use RBRVS methodologies and value as a basis for reimbursement, but this is downright false in terms of chiropractic reimbursement. Trigon has knowingly sent this false information regarding their reimbursement rates through the U.S. mail and in documents transmitted by wire in interstate commerce, including documents filed with the Securities and Exchange Commission.

Count IV – Illegal Interference with Business Expectancy: This count charges Trigon with improperly interfering with the reasonable and contractual business expectation that a doctor of chiropractic has with a patient under Trigon business plans. In other words, doctors of chiropractic have a reasonable expectation that they will receive reasonable compensation for their services, and chiropractic patients have a reasonable expectation that Trigon will not interfere with their relationship with their doctor of chiropractic.

Count V – Violating State Law by Willfully and Maliciously Harming a Trade Business Reputation: According to Virginia law, it is illegal to intentionally harm a person’s trade business reputation and profession – something Trigon, the BCBS national association and medical doctors have conspired to do against doctors of chiropractic. This type of state statute is common to most states.

Count VI – Breach of Contract with Doctors of Chiropractic: There is an implied notion under Virginia law that compensation under a contract be reasonable. Trigon’s enforcement of its contract with doctors of chiropractic is completely unreasonable.

Count VII – Common Law conspiracy to Injure the Practices of Doctors of Chiropractic: Similar to Count V, this count uses notions of common law, rather than state statute, to charge Trigon, the BCBS Association and medical doctors with intentionally injuring the practices of doctors of chiropractic.

Count VIII – Violation of the Insurance Equality Laws of the Commonwealth of Virginia: Because Trigon is paying doctors of chiropractic 40 percent less than it is paying medical doctors for the exact same services and is imposing a cap on chiropractic services, it is violating state insurance laws.

We are seeking a restraining order against Trigon companies and the BCBS Association, three times the amount of the actual damages doctors of chiropractic have suffered, plaintiffs’ costs and attorneys’ fees, the revocation of the BCBS trademark and punitive damages against Trigon.

Trigon Lawsuit Information

On Friday, August 18, 2000, the Virginia Chiropractic Association, in conjunction with the American Chiropractic Association, filed a lawsuit against Trigon Healthcare in the U.S. District court in Roanoke.

This lawsuit is on behalf of all chiropractors in the State of Virginia, and ultimately will affect all chiropractors in the country.

The success of this lawsuit depends on the financial backing of the chiropractor and their willingness to support this suit.

If you were to go back and look at your monthly E.O.B.’s from Trigon, you would see that you are forced to write off hundreds, if not thousands, every month.

We ask each practicing chiropractor to commit a minimum of $100.00 per month to protect your future. For the new practitioner, $100.00 might be too much; however please do the best you can.

Please call VCA headquarters at 540-932-3100 to ask how you can make your contribution. Or, download our online form.

This will be a long, drawn out, costly battle, but the fight must be taken up. Please do your part to support your profession.

Excerpts from The Virginia Voice

The Virginia Voice, VCA’s award-winning quarterly newsletter, provides members with the latest news and information to help them keep up to date with the ever-changing health care environment in the state, expanding benefits of VCA membership, and much, much more. For example, from the March 2004 issue:

“HIPAA Security – Technically Challenging and Expensive”

HIPAA security is the last of the three major sections of the Administrative Simplification section of the entire HIPAA law. The first two, Privacy and Transactions, have already gone past their implementation dates. The rule requires practices to implement a comprehensive security program to protect electronic protected health information (EPHI) that they use and maintain within their practice by April 21, 2005. Your practice should learn and understand these rules whether you file electronically or not. These rules are considered “Best Practices” in the health care community and will be expected of all practices, regardless of your size.

The security section of HIPAA will either require you to …

Click here to read more (March Newsletter (PDF) - Members Only)

“Change in Applicable Codes for Medicare Therapy Modifier”

On December 8, 2003 President Bush signed the Medicare Prescription Drug Modernization Act of 2003 into law. Section 624 of this law places a two-year moratorium on the therapy limits for claims processed from December 8, 2003 through December 31, 2005.

As a result of the moratorium, the therapy limit of $1590 for 2003 and $1640 for 2004 will not be applied as of December 8, 2003. However, …

Click here to read more (March Newsletter (PDF) - Members Only)

“How to Determine a Chiropractic Practice Value”

The value of a chiropractic practice lies in its patient base and its transferability to another doctor. Goodwill as an on-going concern includes such intangible components as:
• patients of record,
• referral sources of patients,
• other business records,
• selection, training and assembly of the staff…

Click here to read more (June Newsletter (PDF) - Members Only)

“Important Programs for You and Your Staff”

The VCA continues its efforts to improve the quality and selection of affordable educational programming in Virginia for both Doctors of Chiropractic and their office staff…

Click here to read more (June Newsletter (PDF) - Members Only)

“A Closer Look at Laws That Affect You”

Even though proposed legislation eliminating the panel of three in Workers’ Compensation did not pass, we can better educate our patients as to how to properly handle the scare tactics imposed on them by the employer/Comp. carrier. The following is the Workers’ Compensation law with annotations regarding the panel of three, when it must be provided, and failure of the employer to provide the panel of three.

Click here to read more (March Newsletter (PDF) - Members Only)

To read more, go to the members-only page and enter your user name and password. Don’t know what they are? Call the VCA office at 540-932-3100. Not a VCA member yet? Click here to join now.

VCA Insurance Committee Creates Incident Report Form

VCA’s Insurance Committee has created a form for members to use to report incidents that have taken place with their group health insurance patients. These incident reports are being collected by the VCA to assist members with the problems and to formulate data for possible future litigation or legislative action.

Health Insurance Incident Report PDF (for VCA Members only)

Assignment of Benefits Form

A good Assignment of Benefits form is critical to your practice health. Attached is one form that the VCA is providing for the convenience of its members.

Assignment of Benefits Form PDF (for VCA Members only)

ERISA Practitioner Education Materials Now Available On-line

The American Chiropractic Association’s (ACA) ERISA (Employee Retirement Income Security Act) Task Force recently completed reviewing recent U.S. Supreme Court and lower court rulings, and U.S. Department of Labor decisions and developing new ACA ERISA practitioner education materials. These materials are now available on the ACA website at: http://www.acatoday.com/insurance/education/erisa.shtml.

The ERISA practitioner education materials have two goals: (1) educate the practitioner on favorable ERISA regulations and (2) provide information on how to file an appeal in the case of an adverse decision (e.g., denied claim, denied benefits). This quote from ERISA: Introduction to New Regulations is one example of the important information available through the education materials.

ERISA regulations only cover plans provided by private employers; therefore, non-private employer-provided plans are not covered under ERISA regulations. ERISA regulations apply to private employer plans that are self- and fully-insured plans.

The Task Force also developed a second more in-depth ACA members-only document – ERISA: 2003 Rulings and Impact on Chiropractic – that includes (1) instructions on how to file an appeal in the case of a denied claim or benefits and (2) an appeal Authorization Form. This is also available via the web link provided above. Both documents include an important list of states that may be affected by the 2003 ERISA Pre-emption Rulings.

During an ACA ERISA TeleSeminar, held in October 2003, the U.S. Department of Labor representative indicated in her opinion, that groups such as state and national associations are more likely to file an appeal due to the reasons noted above. This provides insight into the types of practitioners and groups expected to access the ERISA appeal process. The ACA encourages practitioners interested in filing an individual appeal to consult the ERISA 2003 Rulings and Impact on Chiropractic for information on the appeal process.

In phase 2, ACA’s ERISA Task Force will address state association education materials, model state legislation, and materials to support state associations in promoting chiropractic to ERISA employers.