ADOI executive staff, including Acting Director Gerrie Marks, have agreed to meet with ACS representatives on April 18, 2013 to consider all of our complaints regarding non-enforcement of the Arizona chiropractic insurance equality law. ADOI is showing more interest in hearing about our complaints and making efforts to resolve them than at any time in the past five years and we are most appreciative. ACS was asked to prepare a list of complaints in advance of the meeting and we have done our homework. We will be pressing hard to get resolution on the following list of grievances:
ALLEGED VIOLATIONS OF ARS 20-461(A)17 AND B
Alan M. Immerman, D.C.
April 8, 2013
Introduction: The Chiropractic Insurance Equality Law
20-461. Unfair Claim Settlement Practices Act
A person shall not commit or perform with such a frequency to indicate as a general business practice any of the following:
A. As an insurer subject to section 20-826, 20-1342, 20-1402 or 20-1404, or as an insurer of the same type as those subject to section 20-826, 20-1342, 20-1402 or 20- 1404 that issues policies, contracts, plans, coverages or evidences of coverage for delivery in this state, failing to pay charges for reasonable and necessary services provided by any physician licensed pursuant to title 32, chapter 8, 13 or 17, if the services are within the lawful scope of practice of the physician and the insurance coverage includes diagnosis and treatment of the condition or complaint, regardless of the nomenclature used to describe the condition, complaint or service.
B. Nothing in subsection A, paragraph 17 of this section shall be construed to prohibit the
application of deductibles, coinsurance, preferred provider organization requirements, cost containment measures or quality assurance measures if they are equally applied to all types of physicians referred to in this section, and if any limitation or condition placed upon payment to or upon services, diagnosis or treatment by any physician covered by this section is equally applied to all physicians referred to in subsection A, paragraph 16 of this section, without discrimination to the usual and customary procedures of any type of physician. A determination under this section of discrimination to the usual and customary procedures of any type of physician shall not be based on whether an insurer applies medical necessity review to a particular type of service or treatment.
Complaint One: Failure to equally apply cost containment measures, in this case precertification, to MDs, DOs and DCs.
BCBSAZ, CIGNA, and many AETNA plans, through their agent American Specialty Health Networks (ASHN), all require precertification for chiropractic care after the fifth visit. This number can be increased only for in-network doctors if they meet certain criteria after a period of time. There is no precertification requirement for the usual and customary (U&C) treatment procedures of MDs or DOs. Furthermore, the BCBSAZ benefit booklet for all PPO plans falsely states there is no precertification requirement for chiropractic. This is a serious misrepresentation of the facts. For documentation, see attached ASHN document "Precertification and 6.5 visit benchmark" and "BCBSAZ Benefit Plan Booklet for Preferred Plans," p. 27.
The U&C treatment procedures of MDs and DOs for the typical spinal conditions treated by DCs include advice, education, prescriptions for drugs, prescriptions for physical therapy, injections and surgery. Each dose of a drug is a treatment. Full enforcement of the law would require these insurer using ASHN precertification for DC treatment to either abandon their precertification requirement for DCs or to institute a precertification requirement for MD and DO treatment. This would mean precertification for MD and DO office visits after the fifth visit, precertification for prescribed physical therapy after the fifth visit, precertification after the fifth dose of medicine, and precertification for injections and surgery.
Complaint Two: Failure to pay charges for all reasonable and necessary chiropractic treatment for covered conditions.
ASHN uses a variety of mechanisms to force DCs to treat an average of 6.5 treatments per patient episode of care. This amount of care is not "reasonable and necessary" care to treat the average condition treated in a chiropractic office. This average number of treatments is not supported by any treatment guideline that has been accepted or endorsed by any state or national chiropractic association or chiropractic college. It is, in fact, contrary to all guidelines generally accepted by the chiropractic profession. It has been invented by a few ASHN doctors to justify cutting off chiropractic care prematurely. It is not even consistent with the recommended amount of treatment in a book published by the lead ASHN DC in the mid-1990s which recommended 3-4 times more care. For documentation, see attached ASHN document "Precertification and 6.5 visit benchmark."
Complaint Three: Charging a copayment, coinsurance and deductible that is higher for chiropractors than it is for primary care physicians
Insurers have two tiers for copayments, coinsurance and deductibles, one for primary care physicians (PCPs) and one for specialists. In order to determine whether or not there is illegal discrimination, ADOI must decide whether DCs most appropriately fall into the PCP or specialist category for purposes of cost sharing. Under the law, DCs are portal of entry health care providers. Patients can walk in off the street and see DCs with no need for a referral. Rules developed by the Arizona Chiropractic Board which have the power of law prohibit DCs from advertising themselves as specialists. In order to become a specialist, a doctor must take 3-7 years of training after medical school, something no DC has done. Specialist reimbursement rates are far higher than what is paid to chiropractors. When the average patient has a bout of severe back pain, they typically consult their family doctor, not a specialist. For all of these reasons, it is most reasonable to categorize DCs as PCPs for purposes of setting copayments, coinsurance and deductibles.
On June 16, 2010, the Arizona Attorney General issued an opinion letter on this subject, see attached. It finished with the following statement regarding insurance company designations of chiropractors as either PCPs or specialists: "We emphasize, however,that insurers must develop the criteria for these designations 'Without discrimination to the usual and customary procedures of any type of physician.' A.R.S. §20-461(B)." No insurer since the date of this Opinion Letter has ever developed any criteria for these designations and certainly not any that do not discriminate against the usual and customary procedures of chiropractors. We believe ADOI should mandate that all insurers do so immediately. See attached "AG Opinion June 16, 2010."
Complaint Four: Marketing and selling chiropractic coverage, but not actually delivering it, i.e., an "illusory benefit"
Insurers that use ASHN to handle chiropractic claims market and sell chiropractic coverage, but they do not actually deliver any chiropractic coverage. The maximum payable per visit is $44 and the copayment is $40. This means the insurer only pays $4 of the $44 visit, a mere 9% of the total amount of the visit cost. This is not insurance coverage of the visit. This is an illusory benefit, wholly inconsistent with the marketing materials which claim chiropractic is being sold and purchased. The fact is that chiropractic care is being marketed and then sold, but not actually delivered. When you add in the fact than an average of only 6.5 visits is allowed, the total paid by the insurer is 6.5 times $4 which equals $26 per patient episode of care. Again, this is inconsistent with policyholder expectations when they purchase the insurance. For documentation, see attached "EOB with 4 dollar payments."
Complaint Five: Applying a limitation or condition upon payment to or upon services, diagnosis or treatment by DCs but not by MDs or DOs
BCBSAZ policies have a specific exclusion that applies only to chiropractic care and therefore a violation of the law. It states chiropractic will not be covered "after a member has met functional goals when no objectively measurable improvement is reasonably anticipated."
No such exclusions apply to services rendered by MDs or DOs to the same patients with the same diagnoses. For example, a chronic low back pain patient who has met all functional goals and who can expect no objectively measureable improvement can continue to receive reimbursable treatment from MDs and DOs but not from DCs. Such treatment consists of typical chronic pain medical management including daily pain medications, epidural injections, surgeries, physical therapy and rehabilitation. Chiropractors also have a panoply of techniques to manage chronic pain on an ongoing long term basis, but BCBSAZ excludes chiropractic treatment of such pain because, just as with MD and DO treatment, there often is no change in functional goals or overall improvement in the condition. This disparity in insurance coverage between DCs on the one hand and MDs and DCs on the other is a clear violation of the law. For documentation, see attached "BCBSAZ Benefit Plan Booklet for Preferred Plans," p. 27.
Complaint Six: Failing to Pay Charges for Reasonable and Necessary Chiropractic Services
The law requires insurers to "pay charges" for charges care. There must be some threshold amount of fees below which the insurer has failed to actually "pay charges" for chiropractic care. If the insurer paid, for example, one penny for one visit of chiropractic care, that would obviously constitute failure to "pay charges" as required by law.
The dollar amount of the ASHN fee schedule is so unreasonably low, $6 for a traction procedure for example, as to fail to constitute actual payment for charges for care. It is, therefore, a violation of the law. The insurers pay MDs, DOs and PTs far more than they pay DCs for the exact same service, thus constituting illegal discrimination under the law. For documentation, see attached "ASH Fee Schedule."
We reserve the right to amend and/or supplement this list in the future.
ACS will send out an email bulletin immediately following the meeting with ADOI to let you know what happened. ADOI has the power to end insurance discrimination in Arizona along with the underlying law necessary for enforcement. With a new administration at ADOI, hopes are riding high for a final solution to the chiropractic profession's problems with insurance companies. You can be sure that your ACS representatives will be fighting hard for you at the meeting on the 18th. Stay tuned for the results.