Jul/Aug 2010 Journal

Volume XXIV, Issue 2 SUMMER 2010

Texas Chiropractic Association

Texas Journal of Chiropractic

LAWSUIT UPDATE


Texas Journal of ChiropracticVolume XXIV, Issue 2 Summer EDITION 2010

Texas Journal of ChiropracticThe Official Publication of

The Texas Chiropractic Association

1122 Colorado, Suite 307Austin, TX 78701

Phone: 512 477 9292Fax: 512 477 9296

E-mail: [email protected]

Executive OfficersPresident: Ed Fritsch D.C.

President Elect: Jorge Garcia D.C. Secretary: Jack Albracht D.C.

TCA StaffExecutive Director: Patte Kent

Communications Director: Chris Dalrymple D.C.

Legislative Director: Chip Kent

Board of DirectorsDistrict 1!! Dan Petrowsky D.C.District 2!! Jon Blackwell D.C.District 3!! Jason Clemmons D.C.District 4!! Mark Bronson D.C.District 5!! Dr. John Quinlan!D.C.District 6!! Cody Chandler D.C.District 7!! David King D.C.District 8!! Robert Hoffman D.C.District 9!! James Welch D.C.District 10! Shane Parker D.C.District 11! Ed Kieke D.C.District 12! Yvonne Landavazo D.C.

PoliciesAnnual subscription to the Texas Journal of Chiropractic is included in TCA membership dues. Contact the TCA for subscription rates for non members.

The print Texas Journal of Chiropractic is published up to four times per year by the Texas Chiropractic Association under the supervis ion of the TCA Publ icat ion Committee.

Opinions expressed are those of the contributors and do not necessarily reflect the policy of the Texas Chiropractic Association or the Texas Journal of Chiropractic.

Inside

“Ready to Lose Your Livelihood?Don"t Take Our Word for itWhy Diagnosis?“Organized Medicine” and Your TurfTMA v TBCE, Effect on the Cash PracticeHow Large a Threat?It"s About Time, a Texas History110 Years of ConflictWhy is “Organized Medicine” Anti-Chiropractic?95% of Medical Physicians Hit With MalpracticeAuditors to Profit from “Improper Payments”New Rules Allow for Independent Insurance AppealsF4CP Becomes 501 (C)(3)For-profit Insurers Threaten Access to CarePharmacy"s Consumer Info Receives Failing MarkLegal Arguments over Health Reform Move ForwardUS House Passes Major Chiropractic VA BillMedicare Signature RequirementsStroke NOT a Risk or Side Effect Says Conn. BoardWC Stats, Quotes and HistoryPrescription AbuseQuick, Dumb Profitable?AMA v Health Care

Publication of an advertisement does not imply approval or endorsement by the Texas Chiropractic Association.

The association shall have the absolute right at any time to reject any advertising for any reason.

For advertising rates contact the TCA Office. All advertising material must be in graphics ready format and submitted as a .jpg, .jpeg, .gif, .swf, or .png file type.

Copyright 2010 All Rights Reserved: Texas Chiropractic Association

“Ready to Lose Your Livelihood?”Since the beginning of this year the Texas Chiropractic Association (TCA) has been reporting to you the news regarding the TMA v TBCE lawsuit. Here, in the shortest space possible, is what this explosive issue means to you:

In 2003 Texas Mutual Insurance argued in a workers compensation fee dispute that needle EMG was outside the scope of of chiropractic practice.

T h e T D I , t h e Administrative Law Judge, and even the district court ALL said that since the TBCE had determined that needle EMG was within the scope of chiropractic practice, when properly trained, it was not up to the courts to overturn a governmenta l agency based upon a fee dispute.

In January 2006 the A m e r i c a n M e d i c a l A s s o c i a t i o n ( A M A ) a n n o u n c e d t h e establishment of a “Scope of Practice Partnership” i n c l u d i n g t h e Te x a s Medical Association (TMA) as a founding member.

In August 2006 the Texas Board of Chiropract ic Examiners was sued by the TMA contending that the TBCE"s rules allowed f o r t h e “ p r a c t i c e o f medicine.”

The TCA joined as a member to the lawsuit to use its resources to help protect the chiropractic p r o f e s s i o n . T h e alternative was relying solely upon the State of Texas to de fend the profession. DO YOU WISH TO HELP NOW?!

T h e Te x a s B o a r d o f M e d i c a l E x a m i n e r s (TBME) also joined the lawsuit. The net result is the state of Texas is both s u i n g a g a i n s t A N D defending the chiropractic profession, and the TMA and the TCA are both attacking and defending t h e p r o f e s s i o n o f chiropractic. If you “cancel out the common factors mathematically” you are left with TMA v. TCA to defend the scope of chiropractic practice--Thats 44,000 MDs and DOs against fewer than 2000 TCA members and a total of less than 5000 DCs. 22:1 or 9:1 odds. DO YOU WISH TO HELP NOW?!

The TMA expanded its lawsuit to decide whether or not the right to diagnose was an infringement upon “the practice of medicine.” They contend that ONLY

T B M E l i c e n s e s m a y render a diagnosis. DO YOU WISH TO HELP NOW?!

S a i d t h e J u d g e i n November 2009 , the question to be answered i s “ t h e s c o p e o f practice--diagnosis of w h a t a n d f o r w h a t purpose.” The judge r e s e r v e d j u d g m e n t regarding diagnosis and scope of ch i ropract ic practice and trial has been set for August 16, 2010. TCA has requested a trial by jury. DO YOU WISH TO HELP NOW?!

Without a diagnosis you may have to get an M.D. or D.O. diagnosis in order t o l ega l l y t r ea t you r patients. DO YOU WISH TO HELP NOW?!

Withou t a d iagnos is , insurance companies are under no obligation to pay for your services. The Federal Government just decreed that in 4 years all Americans shal l have

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health insurance. That health insurance shall cover the scope of practice al lowed by state law. TMA is suing to remove diagnosis from that scope of practice. DO YOU WISH TO HELP NOW?!

Texas is but the first state to meet this “organized medicine” initiative. The outcome of this litigation will effect other states.

Don't Take Our Word For It…The information that we are providing to you is not merely the opinion of the TCA. Let!s just look at what the attorney!s have to say about this:

“Hot on the heels of the A m e r i c a n M e d i c a l Association's adoption of R e s o l u t i o n 8 1 4 1 . . . t h e chiropractic community is a g a i n o n t h e d e f e n s e following news that the Texas Medical Association (TMA) has filed suit against the Texas Board of Chiropractic Examiners (TBCE). The lawsuit accuses the TBCE of permitting...medical practices the TMA considers….outside of chiropract ic scope of practice.”

-Dynamic Chiropractic, Texas Arm of the AMA Strikes

Out at Chiropractic; October 2006

“Perhaps the most perplexing component of the suit is TMA's claim that Texas law

prohibits chiropractors from diagnosing their patients. "

-Dynamic Chiropractic, Texas Arm of the AMA Strikes

Out at Chiropractic, October 2006

"If the TMA prevails, the TMA!s position would make it impossible for a DC to treat patients without an order from a Medical Doctor."

-Jennifer Riggs, Attorney

" . . . t h e c o u r t r e s e r v e s j u d g m e n t r e g a r d i n g 'diagnosis' as it relates to scope of practice. The issue is not the word, but the scope of practice--diagnosis of what and for what purpose."

-Judge Stephen Yelenosky

"The TMA...claims...that the Texas Constitution prohibits anyone other than medical doctors from “diagnosing” medical conditions."

-Jennifer Riggs, Attorney

“The TMA and the Texas Med ica l Boa rd con tend [specific board rules] exceed the scope of practice as set ou t i n the Ch i rop rac t i c Pract ice Act , un lawfu l ly authorize chiropractors to practice medicine, violate the Medical Practice Act and violate the Texas Constitution, art. XVI, § 31." " The TMA and the Texas Medical Board are still challenging the diagnosis holding of the district court. """The TMA and the Texas Medical Board contend the pract ice of medic ine by unl icensed persons ( i .e. chiropractors) is an immediate danger to the public and

entitles a court to enjoin #such unauthorized activities.!”

-John D. Pringle, Attorney

This amounts to war. You need to put everything that you have into winning this war at the outset.

-Michelle Quattlebaum, Attorney

" T h e T e x a s M e d i c a l Assoc ia t ion - -a found ing member o f an AMA- led nationwide consortium called t h e S c o p e o f P r a c t i c e Partnership (SOPP)--sued the Texas Board of Chiropractic Examiners to remove the ability of chiropractors to d i a g n o s e … T h e T M A i s challenging the ability of the chiropractors to diagnose and they're doing it based on State constitutional grounds...."

-Keith Pendleton, Attorney

“You may have the right in your State (currently) to diagnose....DCs have been diagnosing in Texas for d e c a d e s … . s t a t u t e s i n Te x a s . . . p r o v i d e t h a t right....Texas chiropractors have been reimbursed for y e a r s b y i n s u r a n c e t o diagnose, [now] statutes like these are being challenged as unconstitutional….they are being challenged by one of the founding members of a national consortium that is systematically challenging s c o p e o f p r a c t i c e nationwide..."

-Keith Pendleton, Attorney


Continued next page

"...physicians, with the help of AMA model legislation, plan to push lawmakers to establish state scope-of-practice review panels to evaluate plans by n o n - p h y s i c i a n h e a l t h professionals..."

-American Medical Association

Why Diagnosis?Without the ability to render a diagnosis you may be forced to seek the diagnosis of a medical physician or other " c o u r t a u t h o r i z e d " diagnostician before you may be allowed to treat, and certainly before you may file a claim for reimbursement.

“Organized Medicine” and Your TurfT h e A m e r i c a n M e d i c a l Association, headquartered in Chicago, refers to itself as “organized medicine.” This Chicago based “organized unit” has publicly stated that they fear "allied professionals will be practicing medicine and d iagnosing medica l conditions.”

They have publicly stated that they desire "requiring non-physicians to identify their credentials clearly -- for instance by wearing badges or limiting use of the term doctor."

This “organized medicine” has publicly stated that they plan

t o " p u s h l a w m a k e r s t o establish state scope-of-practice review panels..."

While “organized medicine” has always claimed that their concern is "a safety issue" it is clearly a "turf war" that motivates these "physicians", and they desire to limit the turf on which YOU may graze.

TMA v. TBCE Effect on "Cash Practice"By: Edward Fritsch, D.C.

Some TCA members have asked whether an adverse outcome on diagnosis in the TMA litigation would have any effect on a “cash only” chiropractic practice.

The TCA cannot give its members legal advice, and encourages you to consult your legal counsel wi th respect to specific questions

about your practice, but the general position of TCA is that there are potential risks even in a “cash only” practice.

Although TCA firmly believes that the terms “analyze, examine or evaluate” in the Texas Chiropractic Act are synonyms for “diagnosis,” the TCA is concerned that, in the event of an adverse outcome, i n s u r a n c e c a r r i e r s a n d Medicare and Medicaid will not be the only ones insisting that there be an identified diagnosis prior to treatment.

The Texas Medical Board c o n s i d e r s t h e a c t o f d i a g n o s i n g t o b e t h e unauthorized pract ice of medicine, unless the word “diagnose” is in the practice act. The Texas Medical Board can refer cases for criminal and civil action, in addition to issuing its own cease and desist orders. Attorneys in malpractice cases would likely take the same position to bolster their cases. Even the


A COURT WILL DECIDE WHAT, WHEN, AND HOW YOU ARE PERMITTED TO DIAGNOSE!

The Texas Medical Association wants to limit the scope of practice of Chiropractic and tell you what it is you may know.

The TCA is prepared for war. Litigation and legislative "war chests" are being

funded by the chiropractors of Texas.

DONATE TO THE LITIGATION FUND at www.chirotexas.org

The Texas Medical Association sued the TBCE over a chiropractor’s right to diagnose.

The TCA joined the suit to protect the profession.

In November 2009 a Judge determined that MUA and Needle EMG were outside chiropractic scope of practice and reserved judgment regarding diagnosis and the chiropractic "scope of

practice--diagnosis of what and for what purpose."

A court of law is now set to determine what you have the capability of "knowing" not only what you have the capability of "practicing.”

The Texas Medical Association argues that the Texas Constitution prohibits anyone other than medical doctors from “diagnosing” medical conditions.

The TCA website at www.chirotexas.org has news, information, and court documents on the TCA members menu.

Texas Board of Chiropractic Examiners will be under p r e s s u r e t o r e s o l v e complaints to that effect a g a i n s t D o c t o r s o f Chiropractic.

These are some of the reasons that TCA urges every Doctor of Chiropractic to support its efforts in the litigation.

How Large a Threat?This threat by the TMA is the greatest strategic threat to this profession since the 1940s.

The Wilks case was an " o f f e n s i v e " b y t h e chiropractors. Therefore....The TMA v TBCE lawsuit has the potential of being the greatest strategic offensive on this profession in 60 years.To combat this strategic offensive of the TMA, the funds required will be "on par" with the funds necessary to p r o s e c u t e t h e W i l k s case...and THAT lawsuit was funded by an entire profession nationwide.

It!s About TimeBy Chris Dalrymple D.C., F.I.C.C.

Some have asked about the history of the conflict between the medical profession and the chiropractic profession. Here is an summary based upon the recorded history:

1900 - 1930s

•The art and science of Chiropractic is "born" in 1895.•Chiropractic c o m e s t o

Texas sometime between 1903 and 1905.

• From 1906 to the 1930s the TMA led a push to have chiropractic doctors arrested for practicing medicine without a license. They called upon their membership they complain a g a i n s t c h i r o p r a c t i c doctors whom were then fined, arrested, and or jailed.

1940 - 1950s

• The TMA begins to lose regularly in the court house in the 1930s and 1940s. They then move their strategic assaults to the statehouse.

• Chiropractic licensure was debated, passed, declared unconstitutional, failed, and passed again in the

late 1940s and declared constitutional.

1950 - 1970s

• In the 1950s through the 1970s "political warfare" ensued as the TMA sought to keep the chiropractic profession "squashed" and out of the developing health insurance industry.

• T C A s u c c e e d s i n achieving the insurance equality law in the 1970s.

1980 - 1990s

• I n t h e 1 9 8 0 s , the Wilk v A M A lawsuit pits the chiropractic profession against the A M A f o r a n t i t r u s t violations. The AMA/TMA's documented strategy was ostracize, discriminate, and eliminate an entire profession. This case was completed in the 1980s when the Supreme Court refused to hear the AMA!s appeal.

• In the 1990s, through the 2 0 0 0 s , t h e T M A i n "political warfare" tried to l i m i t c h i r o p r a c t i c professional involvement at every possible level--hosp i ta l s , i nsu rance , workers compensation, school physicals, and more.

2000s


• In January, 2006, the AMA announced an industry consortium known as the “ S c o p e o f P r a c t i c e Par tnersh ip” (SOPP) , which included as one of its founding members the Texas Medical Association.

• On May 11, 2006 the TBCE adopted rule 75.17 regarding the scope of p rac t i ce fo r l i censed doctors of chiropractic in Texas.

• On August 2, 2006, The Board was then sued by t h e Te x a s M e d i c a l Association contending that the board's rule 75.17 allowed DC's to practice medicine.

• The Texas Medical Board later joined the suit on behalf of the TMA and The Te x a s C h i r o p r a c t i c Associat ion joined on behalf of the TBCE.

• On November 23, 2009, the trial court held a hearing for “summary judgment."

• On November 24, 2009, Judge Stephen Yelenosky handed down his ruling that the Board!s rules regarding Needle EMG a n d M U A a r e invalid...."However, the court reserves judgment regarding 'diagnosis' as it relates to scope of practice." Says the judge, "....The issue is not the word, but the scope of practice--diagnosis of w h a t a n d f o r w h a t purpose."

110 Years of ConflictWith this strategic attack by "organized medicine,” led by the AMA, we have come full circle--from courthouse to statehouse and now back to courthouse again.

The chiropractic profession has managed to defeat the s t r a t e g i c a d v a n c e s o f "organized medicine"--We have lost battles certainly. We have failed to advance our strategic aims; but we have not bowed to their strategic advances.

• They could not prevent the chiropractic profession from practicing by declaring it the u n l a w f u l p r a c t i c e o f medicine.

• They could not prevent chiropractic colleges from becoming recognized.

• T h e y c o u l d n o t k e e p chiropractic out of the health insurance policies.

• T h e y c o u l d n o t k e e p chiropractic out of workers compensation.

• The have not been able to "el iminate" chiropract ic through legal means, or social means, or illegal means.

Since 1906 the TMA and "organized medicine" [their term for themselves] appears to have attempted to create a

monopoly, all in the name of "public safety."

Due to the unified support of the entire profession, their strategic objectives have been thwarted.

• They've attempted to prevent chiropractic from becoming a profession;

• They've attempted to have chiropractic arrested for "practicing medicine";

• They've attempted to keep from having our profession reimbursed;

• They've regularly attempted to have our profession EXCLUDED professionally, socially, and legally.

Why is "Organized Medicine" Anti-Chiropractic?By: Chris G. Dalrymple D.C., F.I.C.C.

Why is “organized medicine” anti-chiropractic?" That is a good question. Research is affirming the efficacy of chiropractic care for a number of conditions." In studies, Chiropract ic is rout inely demonstrated to be a patient-preferred treatment delivery system." Many symptoms r e s p o n d p o s i t i v e l y t o chiropractic care and even seemingly unrelated health complaints may be improved as health and wellness is restored." Chiropractic doctors


and medical doctors are working more closely and chiropractic schools have, for years, worked with medical schools here in Texas.

The number of patients who chose to visit a chiropractic doctor doubled between 1982 and 2002, and it is estimated t h a t t e n - p e r c e n t o f a l l Americans have seen a chiropractor in the past year." For those in teres ted in numbers, that is nearly 31 MILLION Americans, and this doesn!t include the population from other countries of the world who provide chiropractic care, the latest of which is the government of Ghana, Africa, which is announcing that it is for including chiropractic education in their medical schools in order to promote a “ h e a l t h a n d w e l l n e s s revolution.”

Ye t the se l f -p roc la imed “organized medicine” in the United States of America r o u t i n e l y d e b a s e s t h e ch i rop rac t i c p ro fess ion , actively seeking the exclusion of chiropractic doctors and others." They frequently deny our scientific research as “less than valid,” or overlook it altogether."

The frequent hypocrisy of it all, however, is that of their presumption" 1) that theirs is the “only” means of “real” health care, 2) that they are the “only” providers of health care, 3) that their opinion is always in the public!s welfare, and 4) that as the majority, they ALWAYS rule." I use the

word "rule" intentionally for they appear not to seek to prevail, they seek to “rule”--to become a law or principle describing or prescribing what is possible or allowable.

“Organized medicine” would presume to control and define what is permissible." They would establish the practice of ALL practitioners in their own image, but, as we have seen with the TMA v TBCE lawsuit, they would prohibit them from practicing it." This is not new, it has been in evidence since the turn of the LAST century.

From the ear l iest days, “organized medicine” has been anti-chiropractic, but it is no secret that many individual medical practitioners are not fans of chiropractic, and often t imes not fans of other complementary pract ices either."

Some medical practitioners won!t accept referrals from a chiropractor, some hospitals refuse requests made by a chiropractic doctor for medical services, and my favorite examples f rom my own exper ience-- the medica l doctor who visibly recoiled w h e n i n t r o d u c e d t o a chiropractor, and the medical d o c t o r w h o r e c e i v e s chiropractic care, improves from it, and then continues to tell his patients not to see chi ropract ic doctors." By pretending to be an altruistic authority always acting in the public !s interest and yet reflexively responding in self-centered and self-serving

ways, they dilute their ability to claim such a public-spirited platform.

The reasons “organized medicine” and hypocritical practitioners often give for not working and playing well with o t h e r s g e n e r a l l y l i e somewhere between being worried that either such care is unsafe, and their fear that t h e i r o w n p r a c t i c e o r profession will be harmed in some way.

I t i s t i m e f o r m e d i c a l practitioners in general, and “ o r g a n i z e d m e d i c i n e ” specifically, to learn more about chiropractic care rather than stand in the way of progress." Chiropractic care can of ten prov ide safe, effective and fast-working treatment." Here are but a very few examples:"

Evidence-based research is d e m o n s t r a t i n g t h a t chiropractic care is safe, clinically effective and cost-efficient." Mercer Health and Benefits in San Francisco funded a study to review existing literature on the efficacy of chiropractic." Their conclusion is that chiropractic works as well as, or better than currently conventional modalities for treating many forms of low back and neck


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pain." Numerous other studies also support the effectiveness for spine and neck issues in particular."

A 2002 study of patients with nonspecific neck pain found that pain was reduced and function was improved for 68.3% after seven weeks of chiropractic care, while the success rate for those in the care of general practitioners w a s o n l y 3 6 % ." T h e chiropractic patients also missed work less frequently a n d n e e d e d l e s s p a i n medication."

There are a multitude of lesser studies that indicate t h e s a f e t y , c l i n i c a l effectiveness, and cost-efficiency.

It has become popular a m o n g s t t h e a n t i -chiropractic community to fear that, in a vulnerable patient, t w i s t i n g o r s t r e t c h i n g vulnerable arteries during a manipulation could cause rupture. Recently studies were performed to investigate t h i s f e a r a n d i t w a s determined that it would take nine-times the force of a typical manipulation to cause damage to these arteries and mobilize plaque." It was determined that normal head a n d n e c k m o v e m e n t presented a greater risk, in fact there is a term for one of these common movements--the beauty parlor stroke."

There are other studies, of course, but perhaps the most realistic demonstration that

chiropractic is safe is the cost of malpractice insurance--the actuarial studies done by these insurance companies demonstrate that the safety of chiropractic is such that ch i roprac t ic malprac t ice insurance costs only about one-tenth what an MD has to pay--an average of $1300 versus $10,000 to $20,000 for general physicians.

So, why is the medical c o m m u n i t y a n t i -

ch i rop rac t i c?" Individual

safety cannot be t h e i s s u e , chiropractic safety is widely demonstrable."

Public safety cannot be the issue , because the public is de fended by s ta te and federally mandated laws to insure such safety issues."

Clinical efficacy cannot be an issue, for scientific studies have abounded for decades regarding chiropractic clinical efficacy."

What could be the cause? I propose that the main reason is fear."

F e a r i s d e fi n e d a s “ a distressing emotion aroused by impending danger, evil, pain, etc., whether the threat is real or imagined.”" The word is derived from ancient words referring to danger, peril, ambush, harm, distress, deception, risk, trial."

It is clear that “organized medicine” is afraid." I t demonstrates prejudic ia l behavior, it frequently acts in a bigoted and closed-minded manner, it is a culture seeking to close itself to outsiders." Like the central character of

the situation comedy “All in the Family” they seem to play the part of the

close-minded bigot who wants to rule over others

who come near to his sphere of influence.

But if fear is the symptom of a distressing emotion, what is its cause?" In the beginning of the last century a part of that cause was fear of loss of social standing." The majority of practitioners fearing the stigma that their peers could p o u r u p o n t h e m f o r associating with “a lesser mortal.”" In the last half-century a part of that fear was caused by loss of professional standing as the American M e d i c a l A s s o c i a t i o n conducted an illegal boycott of the chiropractic profession and threatened i ts own members with expulsion and financial harm if they even associated with non-medical" p rac t i t i oners ." Curren t l y, however, it would seem that


we have to assign greed as the cause.

The word “greed” is derived from ancient words referring to vorac ious , covetous , hunger, eagerness." In the Greek l anguage i t was philagyros literally meaning “money-loving.”"

While “organized medicine” spouts that it is altruistic in its motives, it certainly appears that philagyros is the cause of t h e f e a r o f “ o r g a n i z e d medicine.”" But let us be fair. Philagyros is not limited to “organized medicine.”

“ O r g a n i z e d fi n a n c e ” , “ o r g a n i z e d i n s u r a n c e ” , “organized politics”, many other “organized entities” and even ourselves if we are honest, seem to be afflicted with philagyros."

The German word for this affliction is perhaps the most descr ip t i ve- -Habsücht ig ." From words meaning “to h a v e ” a n d “ s i c k n e s s , disease”, it is clear that the fear of the loss of their passion--financial security--motivates the fear that causes “organized medicine” to be anti-chiropractic." “Organized medicine” used to be strongly anti-acupuncture until, in Texas, acupuncture became a sub-board of medicine and were “brought into the family.”"

It must be fear and greed that m o t i v a t e s " o r g a n i z e d medicine" to demand that others practice more like they do, while at the same time

work ing to prevent that practice."

It must be fear and greed that m o t i v a t e s " o r g a n i z e d m e d i c i n e " t o d e m a n d evidence and then turn a blind eye to that evidence as never enough."

It must be fear and greed that m o t i v a t e s " o r g a n i z e d medicine" to continually seek what is best in the interest of "organized medicine" rather than what is truly best for the public.

It is this "sickness" for the " love of money" that is c a u s i n g " o r g a n i z e d everything" to become "anti-something."" It is the fear generated by such sickness that motivates" irrational actions such as being "anti" an entire profession.

95% of Medical Physicians Hit with Malpractice A new repo r t f r om the American Medical Association (AMA) reports that “among physicians surveyed by the AMA, there was an average of 95 medical liability claims filed for every 100 physicians, almost one per physician.""The number of claims per 100 physicians was more than five times greater for general surgeons and obstetricians/gynecologists than it was for p e d i a t r i c i a n s a n d psychiatrists."

The report also notes that 50% of OB/GYNs are sued before they reach the age of 40. 90% of general surgeons over the age of 55 have been sued, as have nearly 61% of physicians.

The AMA reports that the physician prevails 90% of the time in the cases that go to trial, and that 65% of claims are dropped or dismissed.

Says the AMA THE “Average defense costs per claim range from a low of over $22,000 a m o n g c l a i m s t h a t a r e dropped or dismissed to a high of over $100,000 for cases that go to trial. This leads to increased costs for physicians and patients.""

CMS Allows Auditors to Profit from “Improper Payments”The Centers for Medicare & Medicaid Services is working to expand its recovery audit contractor program to all of Medicare and to the Medicaid program by the end of the year.


Third-party auditors are hired by CMS to comb through M e d i c a r e c l a i m s f r o m hospitals, physicians and others to identify improper payments.

Executives for these auditing forms are said to welcome the additional workload and would be ready to work with CMS on expanding the program. Auditors are paid based on the dollar amount of any improper payments they uncover.

The application of recovery audit contracting across other federal agencies has strong potential.

Congress has directed CMS to have permanent RACs in place by 2010 to review Medicare claims from all 50 states.

Several concerns raised by p h y s i c i a n s d u r i n g t h e demonstration have been addressed by CMS. “For example, every audit firm is now required to hire a physician medical director, w h i c h . . . g i v e s d o c t o r s additional assurance that reviews of claims based on

medical necessity are handled properly."

New Federal Rule Allows for Independent Insurance AppealsPatients whose claims are denied by their health plans will be able to appeal those d e n i a l s t o a n e x t e r n a l r e v i e w e r u n d e r n e w regulations announced by the Department of Health and Human Services (HHS).

T h e l a w r e q u i r e s t h a t consumers have access to independent third party review of claims.

The regulations take effect for all plan years beginning on or after September 23, 2010.

The new regulations also p r o h i b i t i n s u r a n c e companies from rewarding their employees financially based on the number of claims the employees deny.

Enrollees in plans that are "grandfathered" under the P a t i e n t P r o t e c t i o n a n d

Affordable Care Act -- those plans that were in existence on March 23, 2010, and have not undergone substantial changes -- will not be covered by the new rules..."

IRS Recognizes F4CP Foundation 501(c)(3)T h e F o u n d a t i o n f o r Chiropractic Education, the public charity branch of the Foundation for Chiropractic Progress (F4CP) has received recognition from the IRS as a 501(c) (3).

T h i s F o u n d a t i o n w i l l supplement and expand on t h e F 4 C P ' s m i s s i o n t o educate the public regarding chiropractic care.

For-Profit Insurers Threaten Access to CareA new study reports that " p o l i c y m a k e r s . . . s h o u l d reassess the role of profit-d r i v e n i n s u r e r s i n t h e provision of safety-net care."

"Contracting with a private insurance company to provide c a r e f o r p e o p l e w i t h g o v e r n m e n t - s u b s i d i z e d insurance has resulted in some of those patients having a limited selection of primary care physicians..." the report notes.

The authors conclude: "We fear that such 'rationing by inconvenience' shuts patients out of care to the detriment of their health but to the benefit of [ for-profit- insurance !s] bottom-line."


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Pharmacy!s Consumer Info Receives Failing MarkA news study has found that "the content, formatting, and w o r d c o u n t o f l e a fl e t s pharmacies hand out with medicines are inconsistent and should be subject to FDA guidance.

Among written instructions given out with prescriptions of lisinopril (Prinivil, Zestril) and m e t f o r m i n ( F o r t a m e t , G lucophage , G lume tza , Riomet), about half failed to include directions on use and ra i sed ques t i ons abou t comprehensibility..."

"The FDA regulates label information and guides that accompany drugs with safety concerns but not the content and format of consumer medication information (CMI) documents. The agency does, however, have a set of eight standards for CMI leaflets:

! State drug name and indication

! List contraindications! Include directions about

use! Note precautions and

potential harms! List symptoms of possible

adverse reactions! I n c l u d e g e n e r a l

information and encourage patients to ask questions

! Be scientifically accurate! Be comprehensible and

legible"

This study found that "about 6% of pharmacies didn't provide any written leaflets with these medications.

Leaflets used in this study ranged from 33 to 2,482 words. Only 10% were written at or below an eighth-grade reading level.

Legal Arguments Over Health Reform Move Forward

A U.S. judge has ruled that the state of Virginia could continue with its challenge to t h e r e c e n t l y e n a c t e d healthcare law. Judge Henry Hudson refused to dismiss the state's lawsuit.

"The congressional enactment under review -- the Minimum Essential Coverage Provision -- literally forges new ground a n d e x t e n d s ( t h e U . S . Constitution's) Commerce Clause powers beyond its current high watermark," Hudson said.

The Obama administration holds that the government “always has the ability to levy t a x e s a n d t h a t t h e Constitution places the federal government's powers over the states."

Legal analysts say there is a good possibility the matter will reach the U.S. Supreme Court, but most say there is only a slim chance the states would prevail.

US House Passes Chiropractic to be in VA On May 25, 2010, the U.S. House of Representatives passed H .R . 1017 , t he “Chiropractic Care Available to All Veterans Act,” putting America!s veterans one step closer to gaining access to chiropractic care at all major Department of Veterans Affairs (VA) medical centers. The bill was approved 365:6.

The act requires the VA to have doctors of chiropractic on staff at no fewer than 75 major VA medical centers before the end of 2011 and for all major VA medical centers t o h a v e a d o c t o r o f chiropractic on staff before the end of 2013. There are nearly 160 VA treatment facilities nationwide. Currently, the VA provides chiropractic care at 32 treatment facilities across the country.


The American Chiropractic Association reports that "prior to congressional intervention over the past decade, no doctors of chiropractic served on the s ta ff o f any VA t r e a t m e n t f a c i l i t y. T h e availability of chiropractic care for eligible veterans was limited to VA “referrals” to doctors of chiropractic serving in private practice outside of the VA system. Such referrals were so rare that chiropractic care was essentially non-e x i s t e n t w i t h i n t h e VA system."

I n t h e U . S . S e n a t e , a companion bill (S1204) has been introduced by Sen. Patty Murray (D-WA), who is a member of the Senate VA Committee. This legislation would also expand access to chiropractic care within the VA system.Contact your Senator to tell them of your support for this bill.

Medicare Signature RequirementsT h e C M S r e p o r t s t h a t M e d i c a r e r e q u i r e s t h a t services provided to a patient are authenticated in the patient health record.

Hand written or electronic signatures are acceptable.

A handwritten signature is a mark or sign by an individual on a document to signify

k n o w l e d g e , a p p r o v a l , acceptance or obligation.

Stamp signatures are not acceptable.

You must be familiar with your L o c a l C o v e r a g e Determination (LCD) policy on authenticating records as these po l ic ies wi l l take p r e c e d e n c e o v e r t h e guidelines below.

If your LCD does not have s p e c i fi c s i g n a t u r e requirements regarding the legibility and presence of a signature, your contractor will following the guidelines below to determine the identity and credentials of the signator.

Guidelines for Determining the Identity and Credentials of a Provider

If, in the course of a patient heal th record rev iew, a signature is found to be illegible, Medicare contractors will look for a signature log or at testat ion statement to determine the identity of the provider.

A s i g n a t u r e l o g includes a l i s t

o f the typed or

printed name(s) of t h e a u t h o r ( s ) o f t h e

associated initials or illegible signature(s).

The signature log can be included on the page where the initials or signature are present, or may be in a separate document.

Although a reviewer may encourage providers to list the i r c redent ia ls in the signature log, a claim should be not denied if the log is m i s s i n g a p r o v i d e r ! s credentials.

All signature logs should be considered regardless of the date the log was created.

Providers can include an attestation statement in the documentation they submit.

Only the author of the medical record can attest to the record in question.

Attestations will be accepted by reviewers regardless of the date of the attestation, except in those cases where the regulations or policy indicate that a signature must be in place prior to a given event or a given date. For example, if a policy states the physician must sign the plan of care before therapy begins, an attestation can be used to clarify the identity associated with an illegible signature but cannot be used to “backdate” the plan of care.

CMS recommends that, rather than backdating a patient heal th record, providers should use the signature


a u t h e n t i c a t i o n p r o c e s s explained below.

In some situations, a provider may be contacted by a contractor and asked to s u b m i t a n a t t e s t a t i o n statement or signature log. P rov i de r s w i l l have 20 calendar days from the date of the contractor!s call, or the date that the request letter is received by the post office, to provide the information.

To be valid for Medicare medical review purposes, the attestation statement must be signed and dated and contain suffic ient in format ion to identify the beneficiary. An example is included below:

“I, _____[print full name of the physician/practitioner]___, hereby attest that the medical record entry for _____[date of service]___ accurately reflects signatures/notations that I made in my capacity as _ _ _ _ _ [ i n s e r t p r o v i d e r credentials, e.g., M.D.]___ when I treated/diagnosed the a b o v e l i s t e d M e d i c a r e beneficiary. I do hearby attest that this information is true, accurate and complete to the best of my knowledge and I u n d e r s t a n d t h a t a n y falsification, omission, or concealment of material fact m a y s u b j e c t m e t o admin is t ra t i ve , c i v i l , o r criminal liability.”

Stroke is NOT a Risk or Side Effect Says Connecticut BoardOn June 11, the Connecticut State Board of Chiropractic Examiners cited the most comprehensive scient ific study to date on the subject, by J. David Cassidy, DC, PhD, DrMedSc, et al. The Cassidy study is considered the definitive research on the subject.

The abstract and complete paper can be found a t P u b M e d C e n t r a l , www.ncbi.nlm.nih.gov/pmc/articles/PMC2271108/"and concludes:

"VBA stroke is a very rare event in the population. The increased risks of VBA stroke associated with chiropractic and PCP visits is likely due to patients with headache and n e c k p a i n f r o m V B A d issect ion seek ing care before their stroke. We found no evidence of excess risk of V B A s t r o k e a s s o c i a t e d chiropractic care compared to primary care."

In issuing its final judgment on the matter, the board wrote: “After a careful and thorough review of all the testimony and d o c u m e n t a r y e v i d e n c e admitted at the hearing, the Board concludes that there is s u f fi c i e n t e v i d e n c e t o establish that a stroke or a cervical arterial dissection is

NOT a risk or side effect of a j o i n t m o b i l i z a t i o n , manipulation or adjustment of the cervical spine.”

Workers Comp Stats and QuotesExcerpts from: TEXAS WORKERS! COMPENSATION UPDATE; June 25, 2010

Various parties have weighed i n rega rd ing the Texas Worke r ' s Compensa t ion System. " Some quotes of interest include:

"The payment per claim for prescription drugs used to treat injured workers in Texas was 30% higher than in most of the 15 other states included in a benchmark study by the Wo r k e r s C o m p e n s a t i o n Research Institute (WCRI). WCRI found the average p a y m e n t p e r c l a i m f o r prescription drugs in the Texas workers# compensation system was $536, amounting to 30% more than the median. The institute said the main r e a s o n f o r t h e h i g h e r prescription costs in Texas was higher uti l ization of prescr ip t ion drugs, wi th workers rece iv ing more prescriptions for more pills per claim."

"The study, "Prescription Benchmarks for Texas," found the average number of pills per claim with prescriptions was 41% higher in Texas than the 16-state median. At the same t ime, the average


number of prescriptions per workers# compensation claim was 34% higher, WCRI said.

The study reported that while i n j u r e d Te x a s w o r k e r s received the same types of medications as workers in the other states, physicians in Te x a s m o r e f r e q u e n t l y prescribed muscle relaxants and ant i - in fec t ives . For example, WCRI reported, Car isoprodo l (a musc le relaxant) was prescribed to 8 % o f i n j u r e d workers in Texas (and for 12% in n e i g h b o r i n g Louisiana). This is in contrast with 2% to 4% of claims in most other states, except in a few s t a t e s w h e r e p h y s i c i a n dispensing was a s i g n i fi c a n t c o s t driver."

"The study said the average price per p i l l p a i d t o p h a r m a c i e s i n Texas was similar to the median of the 16 study states. However, physicians in Texas used brand name medications for 20% of all prescriptions, compared with 15% in the median state."

" . . .a recent cont roversy regarding the Medical Quality Review Program and the agency#s decision to stop nine healthcare provider investiga-tions. The controversy arose in May 2010 when former DWC staff alleged that the

a g e n c y i n a p p r o p r i a t e l y d i s m i s s e d t h e n i n e en fo rcement cases and investigations."

"One witness testified that he has seen an increase in denials of medical care that is within the medical treatment g u i d e l i n e , t h e O f fi c i a l D i s a b i l i t y G u i d e l i n e s Treatment in Workers! Comp. He urged the agency to look into this issue."

"A labor representative testified that more large employers are moving to become non-subscribers, that there are a reduced number of supplementa l income b e n e fi t r e c i p i e n t s , a n d w o r k e r s # c o m p e n s a t i o n networks have only sought out low cost providers."

"Most of the testimony from industry representatives and the bus iness and lega l community centered on the

recommendations to remove SOAH from the medical dispute process and the weakening of the Medical Advisor #s authority within DWC."

Susan Rudd Bailey, M.D., the president of the Texas Medical Association (TMA), "reported that TMA continues to suggest that the DWC identify and work to improve geographic areas where access to care, treating doctors, subspecialty

c a r e , a n d Designated Doctors remain a challenge. S h e n o t e d t h a t TMA is committed to assisting in the promotion of strong a n d e x p a n d e d p h y s i c i a n participation in the Te x a s w o r k e r s ' c o m p e n s a t i o n system."

"The Texas Alliance for Patient Access ( T A P A ) h a s r e p o r t e d t h a t b e c a u s e o f

malpractice lawsuit reforms passed by the Texas Legis lature, doctors are flocking to Texas in record number, returning to the emergency rooms and again taking complex cases. Unlike most states, Texas is adding high-risk and primary care doctors faster than the rate of population growth, which is an incredible accomplishment when one considers that Texas has one of the fastest growing populations in the nat ion and is the most


populous of the fast growth states.” said TAPA. Because of tort reform, more Texas patients can now get the timely and specialized care they need closer to home. It is not known at this time what impact the influx of doctors into Texas is having on access to health care for injured employees."

TMA states "While we believe the MQRP process should be refined and improved, we believe the medical advisor should continue to manage and oversee the MQRP process. TMA believes that only a trained and licensed physician can truly provide medical quality oversight that measures up to peer review s tandards . TMA sa id i t strongly recommends that a cabinet level posit ion of medical director, rather than lay staff, should oversee the medical quality review of w o r k e r s ' c o m p e n s a t i o n medical care."

"TMA suggested that the D W C s t a f f c o u l d m a k e recommendations as to the audit-based review priorities of the MQRP, but noted the medical advisor should have final decision-making authority over what issues ultimately are chosen for review. TMA also reported that it believes that criteria for selection of MQRP members need to be improved w i th the fina l determinations as to who is and who is not selected to serve as an MQRP member remaining with the medical advisor. TMA also noted they

believe the medical advisor should review all the MQRP findings and make the final decision to recommend or not recommend re fe r ra l f o r enforcement. We feel that the medical advisor is a key position in the success of the d iv is ion and the MQRP process of the oversight of medical quality and peer rev iew, sa id TMA. Th is p o s i t i o n s h o u l d b e strengthened in order to uphold quality standards that are recognized and uniform, and processes that are fair and ensure due process."

"It is estimated that 33 percent of Texas employers are non-subscribers who have the option to put in place effective s a f e t y , m e d i c a l , a n d rehabilitative programs for their employees. A 2008 s u r v e y b y t h e Te x a s Department of Insurance f o u n d t h a t t h e o v e r a l l percentage of non-subscribing employers is at its lowest point (33 percent) since 1993 when the rate was 44 percent. The number of employees covered by nonsubscribers, however, is at 25 percent compared to 20 percent in 1993."

"The staff of the Texas Sunset Advisory Commission noted in their report on the Division of Workers# Compensation that only 10 percent of non-subscribing employers make required reports to the DWC, including information on workplace injuries."

"The Texas Association of Business (TAB) submitted comments to the Texas Sunset Advisory Commission (Sunset Commission) and weighed in on the ongoing Sunset Review of the Division of Workers# Compensation (DWC). TAB is a broad-based business group representing 3 , 0 0 0 l a r g e a n d s m a l l businesses, as well as over 2 0 0 l o c a l c h a m b e r s o f commerce. TAB is committed to strengthening our economy so businesses of all sizes can create more, good-paying jobs for more Texans." Cathy Dewitt, vice president for governmental affairs with TAB, reported....employers have seen positive effects brought about by the 2005 reforms." Medical costs per claim are significantly lower and the use of networks has allowed employers to receive premium discounts, said Dewitt. At the same time, injured workers have received increases in income benefits and return-to-work rates are improving. Dewitt reported that one of the few negative outcomes that has resulted due to the 2005 reforms is t h a t , a c c o r d i n g t o t h e Worke rs ' Compensa t ion Research Institute (WCRI), medical cost containment expenses per claim in Texas are the highest among the 14 study states included in a recent study by WCRI, and 45 percent higher than in the typical median state. The r e g u l a t i o n s t h a t w e r e necessary in reforming the system in 2005 has come with a large price tag, said Dewitt."


"Health care reform wil l change much of the medical services delivery system as we know it, but its impact on workers# compensation, while l ikely significant, wil l be indirect and accidental—as well as both positive and negative. Worries that the feds will take over workers# c o m p a r e u n f o u n d e d . Congress has plenty on its plate without thinking about an infinitesimal industry that represents less than 2 percent of U.S. medical spending."

" H o s p i t a l a n d f a c i l i t y expenses account for about a t h i r d o f wo rke rs # comp medical spending—roughly $10-to-$12 billion annually. That number is likely to go up.....Expect Medicare to reduce reimbursement to hospitals....If and when these reductions go into effect, hospitals may well look more closely at other payers as they seek to make up for lost revenue. And workers# comp is a very soft target—while it makes up about 2 percent of hospital revenues, it provides about 16 percent of margin."

"Pharmacy didn # t escape reform but certainly wasn#t dramatically impacted. While Congress (so far) failed to give CMS the power to negotiate drug pricing with pharmaceutical companies, those companies went ahead and raised brand drug prices in 2009 by more than nine percent . Workers # comp payers will see an increase in drug prices over the short

term, and if CMS does gain the power to negotiate in the future, watch out for potential c o s t - s h i f t i n g a s manufacturers seek to make u p f o r l o s t m a r g i n b y increasing prices to non-governmental buyers."

" To d a y, h e a l t h c a r e i s delivered episode by episode—diagnos is , ca re p lan , treatment, assessment, and repeat steps two-to-four until the situation is resolved. This episodic model of care will (over time) change to one based on functional outcome management—care focused on returning the patient to functionality and maintaining that functionality. This will be in large part driven by the growing influence of chronic care and need to develop a better care model to address chronic care—one that will heavily emphasize patient education and monitoring. It will also require a different location of care, the medical home—NOT a primary-care gatekeeper model but rather a model wherein the physician is tasked with and responsible for coordinating care and educating the patient. Experts believe this model will be a big part of the solution in workers# comp, as the medical home may we l l be t he dominant model for delivery of care throughout the health system in years to come. Studies indicate the home decreases medical errors and improves the quality of care delivered. In addition, with more individuals covered under insurance, the need for

workers# comp payers to treat underlying health problems a long wi th occupat ional injuries will decrease. That means it is more likely an i n j u r e d w o r k e r w i l l b e undergoing treatment for their diabetes or hypertension, conditions that today often have to be addressed by the c o m p p a y e r a s t h e y complicate surgery and other t he rap ies . As a resu l t , workers# comp payers won#t h a v e t o p a y f o r t h o s e treatments, and the patient population is likely to be healthier overall."

"TDI reviewed data from injury years 1991 – 2006 and prescription data from 2005 and 2006 to prepare the Pharmaceutical Descriptive Analysis. The study noted that in 2005, prescription drug cos ts accounted for 13 percent of medical benefit costs in the Texas workers# compensation system. The data analyzed by TDI staff revealed that prescription drug costs for 2006 accounted for 14 percent of medical benefit costs in the Texas system. TDI#s study noted that the cost impact of prescription drugs for prescription year 2006 on the Texas workers# compensation system for dates of injuries from 1991 to 2006 was $131,674,459 and that there was a 2% increase – $2,136,072 – in the share of medical benefits payments associated with prescription drugs in 2006. It is important to note that for dates of injury 1991 to 2000, the number of injured employees in the


study is 13%. However, the 13% of injured employees in the study constitutes 46% of t h e t o t a l p a y m e n t s f o r prescriptions in 2006."

Texas WC HistoryExcerpts from: TEXAS WORKERS! COMPENSATION UPDATE; June 25, 2010

" T h e fi r s t w o r k e r s ' compensation laws were enacted in Texas in 1913 and held fast to the principle that employers should be allowed to choose whether to offer w o r k e r s ' c o m p e n s a t i o n benefits to their employees. At the time, the courts generally h e l d t h a t m a n d a t o r y , government-administered w o r k e r s ' c o m p e n s a t i o n programs denied the property rights of employers without due process of law.”

“The judicial climate changed in 1917 when the U.S. Supreme Court ruled that it w a s l a w f u l t o r e q u i r e employers to choose whether or not to participate in a state's workers' compensation program."

"Texas revised its workers' compensation laws in 1917, b u t r e t a i n e d v o l u n t a r y employer participation in the system. Today, Texas is the o n l y s t a t e t h a t a l l o w s employers to choose whether or not to provide workers' compensat ion , a l though p u b l i c e m p l o y e r s a n d employers that enter into a

bu i ld ing or const ruct ion contract with a governmental entity must provide workers' compensation. The 1917 Texas law created the Texas Industrial Accident Board to a d m i n i s t e r w o r k e r s ' compensation laws in the state and provided the basic framework for the state's w o r k e r s ' c o m p e n s a t i o n system until the late 1980s."

"In 1987, amid growing public c o m p l a i n t s a b o u t h i g h insurance costs for employers and low benefit rates for injured workers, the Texas Legislature appointed a Joint Select Committee on Workers' Compensation Insurance to make recommendations for change. The Joint Select Committee study concluded that work-related fatalities and injuries in Texas seemed to be higher than the rest of the nation. Also, the committee found that benefit rates and payment durations were low compared to other states, especially for seriously injured workers. Other key findings included that medical costs were on the rise and that attorneys were extensively involved in lost time claims by injured workers, even when the claims went undisputed."

"Addressing these concerns, the Texas Legislature adopted t h e T e x a s W o r k e r ' s Compensation Act (Senate Bill 1), also referred to as the Act, on Dec. 13, 1989. The A c t w a s i m m e d i a t e l y challenged in court but it was upheld eventually by the Texas Supreme Court."

"The Workers' Compensation Act ensures that injured workers are compensated fairly and appropriately for workplace injuries. Under the Act, Texas remains the only state that still allows private employers to choose whether or not to maintain workers' compensation insurance. Employers who choose not to maintain coverage must notify t h e D i v i s i o n a n d t h e i r employees that they do not intend to maintain workers' compensation insurance. The Act created more insurance o p t i o n s f o r e m p l o y e r s , including self-insurance for large employers who meet established criteria and are certified by the Division."

" T h e Te x a s W o r k e r s ' Compensation Commission (TWCC) was created under the Act to administer the w o r k e r s ' c o m p e n s a t i o n system, replacing the Texas Industrial Accident Board. TWCC adminis tered the system until 2005, when it was abolished and replaced by the Texas Department of I n s u r a n c e , D i v i s i o n o f Worke rs ' Compensa t ion (Division)."

" T h e 1 9 8 9 W o r k e r s ' Compensation Act established a new benefits system, raised basic benefit levels and set tight deadlines for employers and carr iers to improve b e n e fi t d e l i v e r y . A n a d m i n i s t r a t i v e d i s p u t e resolution process under the Act attempted to resolve claim disputes informally whenever


possible. It provides for an i n t e r n a l a d m i n i s t r a t i v e p r o c e s s t h a t i n c l u d e s hearings and reviews by a three-judge appeals panel to settle disputes that cannot be resolved informally."

"To confront concerns about h i g h c o s t s a n d t h e involvement of attorneys in even routine claims, the Act called for the development of medical fee and treatment guidelines to control medical costs and limits attorneys fees to time and actual expenses, up to a maximum of 25 percent of an injured worker's total recovery.The Act strengthened the Division's ability to monitor system participants and to a s s e s s a d m i n i s t r a t i v e penalties for noncompliance with the Act or Division rules. It provided that the Division also investigates fraud and m a y w o r k w i t h l o c a l p r o s e c u t o r s a n d l a w enforcement o ffic ia ls to p r o s e c u t e w o r k e r s ' compensation fraud."

"Finally, the Act consolidated a n d e x p a n d e d s t a t e -admin is te red workp lace health and safety programs and the created workplace health and safety assistance and incentive programs for employers."

"During the 1990s, numerous measures were passed by the Legislature to make the w o r k e r s ' c o m p e n s a t i o n system run more efficiently. A growing concern toward the end of the decade was high

medical costs in the system. The length of time that injured workers stayed off the job was scrutinized as well, with several studies emerging comparing Texas unfavorably to other states for return to work outcomes."

" I n 2 0 0 4 , t w o i n t e r i m committees of the Texas Legislature were charged by state leaders to study the w o r k e r s ' c o m p e n s a t i o n system. The Senate Select I n t e r i m C o m m i t t e e o n Workers' Compensation was directed to examine the benefits of existing, regional health care networks to treat injured workers and to assess the potential impact of full-scale networks in the system. The committee also was directed to examine measures under-taken and proposed to regulate medical costs for treating worker injuries. The S e n a t e S e l e c t I n t e r i m Committee concluded that health care networks should become part of the workers' compensation system and that treatment guidelines should be developed to direct the types of care given to injured workers."

"The House Business and Industry Committee prepared an interim study on the w o r k e r s ' c o m p e n s a t i o n system that also endorsed health care networks to treat injured workers."

"In addition to the legislative interim studies, the former TWCC underwent review by the Texas Sunset Advisory

Commission in 2004. The S u n s e t C o m m i s s i o n recommended the abolition of TWCC, the addition of health care networks for injured workers, and the creation of an Office of Injured Employee Counsel (OIEC). Numerous o the r r ecommenda t i ons included improvement of return-to-work outcomes and measures to control medical costs."

"The Texas Leg i s la tu re enacted House Bill (HB) 7 in 2 0 0 5 t o r e f o r m t h e administration of the workers' compensation system and implement major changes in the delivery of benefits to i n j u r e d w o r k e r s . H B 7 provided that the newly-created Division of Workers' Compensation at the Texas Department of Insurance would be overseen by a Commissioner of Workers' Compensation appointed by t h e G o v e r n o r . T h i s represented a significant change in the stewardship of the workers' compensation system from the former Worke r ' s Compensa t ion Commission composed of six m e m b e r s r e p r e s e n t i n g employers and employees."

"HB 7 also established a new state agency, the Office of Injured Employee Counsel (OIEC), to be administered by a Public Counsel appointed by the Governor. The Public Counsel represents injured w o r k e r s i n r u l e m a k i n g proceedings and coordinates ombudsman assistance for i n j u r e d w o r k e r s i n


a d m i n i s t r a t i v e d i s p u t e proceedings."

"Health care networks, similar to those found in group health insurance, first came to the Texas workers' compensation system under HB 7. As the n e t w o r k s w e r e b e i n g developed to begin operations in 2006, the Commissioner of Workers' Compensation also directed the implementation of many other reforms approved by the legislature in HB 7."

"On May 26, 2010, Texas Mutual Insurance Company#s (Texas Mutual) board of d i r e c t o r s a p p r o v e d t h e company#s plan to distribute $100 mil l ion in workers # compensat ion div idends. D i v i dends reward l oya l pol icyholders who share Texas Mutual#s commitment to workplace safety. Texas Mutual has declared $845 million in dividends during the past 12 years."

"...chairman of the Texas Mutual board of directors....In 1999, we were thrilled to pay our first dividend - $25 million. Today, that number has grown t o $ 1 0 0 m i l l i o n . O u r policyholders will use those f u n d s t o e x p a n d t h e i r bus inesses. . .This year #s d i v idend announcement comes as the economy continues to climb out of the worst slump since the Great Depression. Texas Mutual President Ron Wright said that the company #s 12th consecutive dividend payout is a sign of its ongoing financial stability."

Prescription AbuseExcerpts from: TEXAS WORKERS! COMPENSATION UPDATE; June 25, 2010

" O n J u n e 3 , 2 0 1 0 , Representatives Mary Bono Mack (CA-45) and Harold Rogers (KY-05) launched a bi-p a r t i s a n C o n g r e s s i o n a l Caucus on Prescription Drug Abuse. As the Co-Chairs of the Caucus, Bono Mack and R o g e r s a r e l o n g - t i m e advocates for multi-tiered solutions to the ever-growing epidemic that has wrought havoc on communities large and small throughout the United States."

"Prescription drug abuse is on the rise, threatening the lives of more and more of our young people every day," said Bono Mack. "Far too many A m e r i c a n s h a v e t h e m i s c o n c e p t i o n t h a t prescription drugs are 'safer# because they#re prescribed by a doctor, but the f a c t i s t h a t prescription drugs, when abused, can b e j u s t a s addictive and as deadly as street

drugs....Prescription drug abuse is overwhelming our l o c a l l a w e n f o r c e m e n t community, challenging our health practitioners and worst of all, is an easy predator on our young people..."

"Between 2002 and 2007, my home state of Massachusetts l os t 42 t imes as many residents to opioid-related overdoses than in the Iraq and Afghanistan wars and the Commonwealth is currently seeing 2 deaths per day."

"The P resc r i p t i on D rug C a u c u s w i l l h e l p r a i s e awareness of this terrible epidemic while developing effective policies to combat abuse....According to the National Institute on Drug Abuse, nearly 7 million people are utilizing prescription drugs for non-medical purposes. Nearly one-third of individuals who began abusing drugs in the past year reported their first drug was a prescription drug, and one out of every five new drug abusers is initiating use with potent narcotics, such as oxycodone,


hydrocodone and methadone. T h e D r u g E n f o r c e m e n t A d m i n i s t r a t i o n ( D E A ) indicates illegal prescription drug diversion is the fastest g r o w i n g d r u g t h r e a t nationwide. The Caucus will conduct periodic events to e d u c a t e M e m b e r s o f Congress, congressional staff, relevant government officials and the general public about the dangers of prescription drug abuse and policies a i m e d a t r e d u c i n g t h e diversion and misuse of these drugs."

"On December 23, 2009, Joe P a d u d a , a n a t i o n a l l y recognized expert, speaker, media source and author on managed care in group health a n d i n w o r k e r s # compensation, reported that the use of narcotics to treat w o r k e r s # c o m p e n s a t i o n injuries is a problem. 'This isn't just a drug cost issue; the extended use of narcotics is also associated with longer duration of disability and higher claims costs,' said Paduda.

"States with above average use of narcotics include California, Oklahoma, Texas, Louisiana, Alabama, South Carolina, Massachusetts , D e l a w a r e , a n d N e w Hampshire..."

"In December of 2009, NCCI reported that narcotic drugs account for nearly one quarter of all workers# compensation prescription drug costs. NCCI reported:

Narcotics use early in the life of c la ims is increasing; Narcotics use can persist for many years; and Heavy narcotics use for workers# compensation injuries is related to substance-abuse treatments."

Quick, Dumb, Profitable?By: Dr. Clem Martin D.C., Bonham, Texas

Not long ago, I attended a coding seminar taught by a prominent leader in one of our National organizations. As commonly occurs in such seminars, the instructor shared an anecdotal story of successful treatment of a young asthmatic patient in his practice.

Ever interested in how high p r o fi l e a n d p o l i t i c a l l y c o n n e c t e d c h i r o p r a c t i c physicians conduct their p r a c t i c e s , I p o s e d t h e question: “did you record an asthmat ic code as your diagnosis?”" My seating location was front center where my query was picked up on the audio system and could not be missed by anyone in the auditorium. The s p e a k e r h a s t i l y a n d emphatically responded, “I don!t treat asthma, I treat subluxations.”

I t i s s p e l l b i n d i n g h o w conveniently many otherwise brilliant chiropractors drape t h e m s e l v e s i n t h e sanctimonious ambiguity of

subluxation when queried on specificity."

Nearing completion of 50 years of clinical chiropractic practice and 73 years of p e r s o n a l r e l i a n c e o n chiropractic application for comprehensive healthcare, “I don!t treat asthma, I treat subluxat ions” expressed publicly by a leader in the profession is paralyzing.

A l i f e t i m e s t r u g g l e o f persecution, joy and love of this profession has not made the vertebral subluxation e t i o l o g y a p l a u s i b l e reconciliation for the spectrum of human disorders. Things such as Medicare Guidelines d e m a n d i n g l e v e l o f sub luxa t ion ra ther than diagnostic accuracy haunts th is p ro fess ion w i th no resolution in sight." These s a m e c o n s t r a i n t s n o w threaten sustainability of Chiropractic as a health care entity.

The question exists: “is this all there is?” Is nonspecific s u b l u x a t i o n a l l t h a t i s chiropractic? If treatment is nothing more than take an x-ray of the neck or back, mark a bone some direction or another and whack it 3 times per week for 6 months, what is the science" and art to" something so" ridiculously simple?" Why the need for an academic degree, a graduate d e g r e e a n d c o n t i n u i n g education to whack a Bone Out Of Place (BOOP)?" Why did my State Licensing Board quiz me about Yaws and


Elephantiasis, Measles and Pertussis?"

Scores of technique peddling messiahs have attempted to j u s t i f y t h e “ S ” w o r d (subluxat ion) with l inear concepts. Most had noble motives." Each was and remains a player in polarizing our profession. All sought a s i m p l e r e d u c t i o n i s t explanation of an incredibly complex multimodal system." Each and every technique appl icat ion has affected c o u n t l e s s i n s t a n c e s o f miraculous outcomes."

Our legacy is success where other treatment forms failed." Our focus on back/neck pain was a survival tactic in the dark era of 1960/70!s AMA inquisition. Resultantly, our patient population narrowed to m u s c u l o s k e l e t a l p a i n ." D i s o r d e r s o n c e s e r v e d successfully by the Primary Care chiropractor seem now submissive to malevolent allopathic failure and long term negative consequence."" We mus t asser t t o the scientific community that it is no t me re l y sub luxa t i on reduction, but consequent modulation in Central Nervous System function at the core of chiropractic methodology." Subluxation" may" be" one" of" a" short/long" term sign" or" symptom" pattern" yet" to" be"" cataloged." Remember, the s p i n e a n d s e g m e n t a l dysfunction, or subluxation, is not chiropractic !s private d o m a i n . W e h a v e squandered millions in legal

funds attempting to establish copyrights for "subluxation." To what avail?" Others are "doing it" too, or seeking to do so."

The functional outcome of the chiropractic application is as equal ly complex as the human sys tem, bu t no t impossible to rationalize in the s y s t e m s l o g i c o f contemporary neuroscience." Modulation of the human autonomic nervous system is the Chiropractic domain." Mechanical input (energy) in t he app rop r i a te vec to r, amplitude and velocity fire appropriate afferent receptor populations with great end o r g a n s p e c i fi c i t y ."" Chiropractors should be the world's best at it."

Why should we not treat the asthmatic child and call it what it is – Asthma? Why should we not treat Chron!s Disease, identity it, code it correctly and document the favorable consequence? Why should we not put cardio Amplifiers/ECG!s on our heart patients and allow them to witness the sympathetic/parasympathetic outcome as a result of the chiropractic intervention?" Why should we not repeat the influenza successes of the 1918-1919!s in this new century? Why" not aggressively assert our role as primary care providers/physicians? There is but one major hurdle besides state and federal bureaucratic law--Primary care is difficult and demanding.

While Medicare, CPT Coding and clinical guidelines and other bureaucratic measures discourage accumulation of clinical evidence that validates e fficacy o f Ch i rop rac t i c intervention in the scope of human disorders, it us up to the doctor to determine at what level he or she desires to practice." The individual gets to decide at what level they will function--primary care or secondary care--and regardless of bureaucratic h u r d l e s , w e m u s t a s k o u r s e l v e s , h a v e w e completely succumbed to the addictive simplicity of Quick – Dumb - Profitable?

AMA v Health CareIn an editorial published in Dynamic Chiropractic and titled AMA's "Contain and Eliminate" Tactics Alive and Well , Dr. Louis Sportel l i comments on the history of Medicine's " anti-chiropractic campaign. "

"As a modern-day doctor of chiropractic, you may think this article is born of ancient paranoia. Perhaps you're convinced this is about AMA bashing and yesterday's news. But just look around and you will see clear and compelling evidence that the long-standing war between the AMA and everyone else who does not come under the AMA umbrella is far from over."

"The names have changed, the venue has changed, the


approach has changed and the legality has changed, but the intent has remained the s a m e : t o m a i n t a i n monopolistic control over the delivery of health care."

"It was not that long ago - 1963, to be exact - that the AMA formed its infamous "Committee on Quackery," w h o s e m i s s i o n w a s t o "contain and eliminate" the ch i rop rac t i c p ro fess ion . Please let those two words, c o n t a i n a n d e l i m i n a t e , resonate for a moment, because 47 years later, the AMA House of Delegates [has] introduced a resolution regarding scope of practice. Specifically, they are targeting the Public Protection and Affordable Care Act (PPACA), because it contains language deemed "troubling" based on AMA policy..."

"...H-405.969, Definition of a Physician: 'The AMA affirms t h a t a p h y s i c i a n i s a n individual who has received a 'Doctor of Medicine' or a ' D o c t o r o f O s t e o p a t h i c Med ic ine ' deg ree , " and H-160.936, Comprehensive Physical Examinations by Appropriate Practitioners, which declares that "the p e r f o r m a n c e o f comprehens ive phys ica l examinations to diagnose medical conditions [should be limited] to licensed MDs/DOs or those practitioners who are d i r e c t l y s u p e r v i s e d b y licensed MDs/DOs.'"

"It is a declaration of war on any health practitioner who is

n o t a n M D o r D O ! Unfortunately, other indicators abound that not only the AMA, but also individual state medical associations, are mobilizing their forces or are already on the offensive.""As many of you know, the [Texas Medical Association and the] Texas Medical Board of Examiners filed an action against the Texas Chiropractic Board of Examiners...the medical board suggested that "diagnosis" can only be performed by a doctor of m e d i c i n e o r d o c t o r o f osteopathy."

"...field practitioners in Texas are already in "no man's land," wondering how their practices will be affected. Glenn Parker, the executive director of the Texas Board of Chiropractic Examiners, has issued a "notice" that cannot be terribly comforting:

"DCs are not required to stop performing MUA or EMG at th is point , as the legal dec is ions are not fina l . However the Board urges each DC who performs these procedures to consult with his or her attorney concerning any possible legal implications o f p e r f o r m i n g t h e s e procedures while the case is on appeal."

" Imag ine your pa t ien ts ' reactions to this effort to reduce you to a technician; n o t t o m e n t i o n t h e r e i m b u r s e m e n t a n d malpractice implications. In Texas, the reality of losing this case could be the immediate

cessation of your ability to d i a g n o s e . . . E v e n m o r e troubling, while the Court granted only partial summary judgment on the diagnostic issue, that claim is still alive and will be decided at trial after a full presentation of evidence by attorneys on both sides of this issue."

"Meanwhile, in Connecticut there have been hearings before the state board of examiners over informed consent. Those hearings have escalated into a legislative initiative whereby "diagnosis" will be part of a bill to limit doctors of chiropractic from treating people in the manner they have been doing for decades."

"I hope you are beginning to see the pattern starting to build and realize that no state is immune from this activity. The Texas "success" for the m e d i c s m a y w e l l b e trumpeted as a rallying cry for more [organized medicine] activism...!"

"In the '50s, '60s and '70s, the AMA essentially ingrained itself and its image into the very culture of the country, to the extent that Congress, g o v e r n m e n t a g e n c i e s , corporations and the general pub l i c cons ide red AMA proclamations truthful and having the weight of law. Essentially, the AMA enjoyed a special position in society otherwise reserved only for elected officials or established governmental agencies."


"Older doctors of chiropractic can well remember those years prior to the AMA lawsuit: all medical doors were shut, re fe r ra l s were re fused , hospitals would not perform testing for DCs, and obtaining privileges was a pipe dream. Every MD-related health care association mysteriously had a very similar anti-chiropractic position. Moreover, insurance companies all had MDs as directors of their benefits reso lu t ion depar tments , government agencies from NIH to FDA had medical d o c t o r s a s d i r e c t o r s , universities had negative position policies regarding DCs and conveniently had MDs as important faculty, and state departments of health had MDs at the helm."

"The boycott that prevented MDs from accepting referrals from or making referrals to DCs was solidly in place, and thus the tentacles of power from the AMA touched every aspect of our lives in ways many DCs today cannot begin to imagine. Enter Wilk, et al. v t h e A M A , e t . a l . , t h e extraordinary Mr. George McAndrews, a lawyer whose father suffered the indignities of simply being a chiropractor, and his brother, Jerome F. McAndrews, DC. You have a winning combination to begin an anti-trust lawsuit that lasted 14 years."

"The AMA has learned a l e s s o n f r o m t h e W i l k lawsuit. It now understands that government action is p r o t e c t e d u n d e r t h e

Constitution, as is action in petitioning the government. It can lawfully petition local, state and federal legislators and attempt to influence any legislation without fear of committing actionable restraint of trade or illegal boycott. (However, the AMA does seem to be getting dangerously close with its resolut ion regarding the "definition of a physician," in that it appears to involve hospital action without the intervention of government). That kind of activity would bear much c loser lega l scrutiny, since it appears to involve action in restraint of trade by private parties..."

"So, what does this all mean t o y o u a s a d o c t o r o f chiropractic? It means the battle is clearly ongoing and eternal vigilance is still the order of the day. It is truly amazing that so many practicing DCs do not sense the urgency, even when AMA actions such as the one in Texas can impac t the i r professional future....Rest assured that we are just seeing the gearing up of what may soon become a 50-state effort if something doesn't derail the train. Stopping it as soon as possible is key."

"Texas doctors do not have any choice about whether this will affect them. Whether they b e l o n g t o t h e i r s t a t e association or not, practice in a large town or small village, practice solo or in a group practice; this kind of activity will ultimately affect every

single doctor of chiropractic and every future doctor of chiropractic who considers practicing in Texas."

"The Harkin amendment seems to have struck a negative chord with the AMA, which should automatically strike a positive chord for doctors of chiropractic. Even if you do not want to join a national organization, at least provide money for their political action committees to enable them to work the halls of the legislature. Consider that without strong political action, there would be no posi t ive amendments to consider in the first place."

"...this is not about philosophy, ar t , sc ience or pol i t ica l affiliation - this is about survival of the profession and regaining our proper place in the health care delivery system. This is about preventing the next incarnation of an oppressive a d v e r s a r y w h o h a s s y s t e m a t i c a l l y c a u s e d irreparable harm not only to the chiropractic profession, but more important ly to[mi l l ions]. This is about establishing a beachhead for every profession that is not aligned with the AMA and whose services are needed, yet maligned enough to cause patients to fear visiting an alternative non-MD for their care."

"The chiropractic profession has been a champion for all the other non-drug, non-surgical complementary and

25Texas Journal of Chiropractic

alternative approaches to health care by paving the way w i t h o u r s t e a d f a s t determination to change health care delivery and by our pure, tenacious grit that we would not succumb to the AMA's oppress ion even be fo re we knew o f the conspiracy. Following our knowledge of the malicious covert and overt actions, plots, schemes and scams of the AMA, the profession came together to fight the common enemy. Nothing has changed since then except the venue and the attitude of the doctor of chiropractic. We need to rek indle that spi r i t o f determinat ion and the powerful "we won't be stopped" mantra that was heard in every village across A m e r i c a a n d e n a b l e d c h i r o p r a c t o r s t o g a i n licensure, gain accreditation, gain inclusion in Medicare and so much else."

"Perhaps the only thing the A M A h a s t r u l y b e e n successful at is in keeping us from being a united force....we need to once again put aside our small battles that seem to occupy center stage and join forces in a spirit of can-do [that] cannot be stopped.

"Please support the legal battle in Texas and at least provide monetary support for a national association PAC if you do not want to get more involved. Your support will make this another battle the AMA will again come to regret."


The Texas Chiropractic Association

Has undertaken the defense of the chiropractic profession

In the Texas Medical Association v. The Texas Board of Chiropractic Examiners (TMA v. TBCE).

This defense will continue for several years to come as it winds its way through the court system.

Why undertake such an endeavor?Because the Texas Chiropractic Association cares enough

about the chiropractic profession to

TAKE A STAND FOR WHAT IS RIGHTWhile the issues of what our profession should or could

perform are debatable, it is not right that one industry seek a monopoly over all healing arts as “organized medicine” is

attempting.

The TCA calls for YOU to TAKE A STAND FOR WHAT

IS RIGHTHelp to support the stand against

“Organized Medicine”

Go to:www.chirotexas.org

Click on “DONATE” to contribute to the legal defense fund or mail your check to the TCA today!

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