30 Climbing the Ladder of Opportunity (Part 2)

If our leadership has ever made a strong case to expand our market share by positioning DCs as the portal of entry for SRDs, now is the time to do it. The obvious challenge for the chiropractic profession is to position itself to be the only physician-level leader in conservative spine care as America's "primary spine provider" (PSP).

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Dynamic Chiropractic – April 1, 2014, Vol. 32, Issue 07

Climbing the Ladder of Opportunity (Part 2)

By J.C. Smith, MA, DC

Editor's note: Part 1 of this article appeared in the March 15 issue and discussed Medicare's Program for Evaluating Payment Patterns Electronic Report (PEPPER), which recently placed spinal fusion surgeries on its target list.

PEPPER for Chiropractors

What does the PEPPER paradigm mean for the chiropractic profession? One hell of a lot, that's for sure, if we play our cards right to climb this ladder of opportunity. But our ascension requires that we become a voice in this process.

If our leadership has ever made a strong case to expand our market share by positioning DCs as the portal of entry for SRDs, now is the time to do it. The obvious challenge for the chiropractic profession is to position itself to be the only physician-level leader in conservative spine care as America's "primary spine provider" (PSP).

This is an easy case to make in light of the revelations about the dubious management of back pain by medical PCPs who have been shown to be "inept" in their training on musculoskeletal disorders,26 more likely to ignore recent guidelines27 and more likely to suggest spine surgery than surgeons themselves.28

ladder of opportunity - Copyright – Stock Photo / Register Mark Moreover, patients don't realize that 50 percent of all medical schools do not even teach one class in musculoskeletal disorders.29 Indeed, researchers have found that medical primary care physicians are actually the least educated to diagnose and treat musculoskeletal chronic pain problems,30 and only 2 percent of medical PCPs refer to DCs.31

The "national scandal" in spine care is fueled not only by their incompetence and misrepresentation of qualifications, but also is another example of medical fraud causing inefficiency.

The paradox of this ineptness of medical PCPs is that patients with chronic low back pain are more likely to see a family physician (65 percent) for their pain compared with orthopedists (56 percent), physical therapists (51 percent) and chiropractors (47 percent).32

Obviously the clinical effectiveness by DCs has proven our benefit as primary spine care providers. For example, a Washington state worker's comp study found that for patients whose first provider was a chiropractor, only 1.5 percent ultimately underwent surgery, in contrast to 42.7 percent of workers who went through the typical medical system.33

Indeed, satisfied patients have always been the mainstay of chiropractic care throughout the medical war against chiropractors. In a congressionally mandated pilot project conducted from April 2005 to March 2007, testing the feasibility of expanding chiropractic services in the Medicare program, 87 percent of patients in the study gave their chiropractor a score of 8 or higher, with 56 percent rating their chiropractor a perfect 10.34

The growing number of comparative research studies35 cannot be clearer in showing chiropractic stands at the top of cost-effective spinal treatments. As Anthony Rosner, PhD, testified in 2003 before the Institute of Medicine: "Today, we can argue that chiropractic care, at least for back pain, appears to have vaulted from last to first place as a treatment option."36 This is the message we must take to CMS and Capitol Hill if we are to ascend to the top of our ladder of opportunity.

The Hard Climb Up the Medicare Ladder

Let me give you a short history lesson of chiropractic in Medicare to show the difficult climb up this ladder by our predecessors. Although the CMS crackdown on this national scandal of unnecessary spine surgeries and hospitalizations will eventually play out to our benefit, the climb to inclusion and equality up the Medicare ladder has been a treacherous one; with missteps along the ascent, to say the least, and occasionally having the ladder pulled from beneath our feet, to say the worst.

The AMA bitterly opposed JFK's legislation in 1960 for Medicare / Medicaid in a PR campaign dubbed Operation Coffee Cup, led by actor Ronald Reagan, but once signed into law by LBJ in 1965, the AMA quickly took control in its typical tyrannical fashion.

Although chiropractors were included in the original language of the bill,37 after clandestine political skullduggery by the AMA's Committee on Quackery, chiropractors found themselves excluded in the enactment.38 Before Medicare was even enacted, we were one step in the hole.

In 1972, President Richard Nixon gave chiropractors one step up on the Medicare ladder with limited inclusion, but by 1994 the chiropractic profession found itself withering on the Medicare vine when Sec. Donna Shalala pulled the ladder out from beneath our feet by allowing Medicare+Choice managed groups to exclude chiropractors by allowing PTs to render our service. She also mandated that patients needed MD referrals to see DCs.39

In fact, when Medicare managed care groups went to medical gatekeepers to enforce a "medically necessary" rule, utilization of the chiropractic service dropped by 85 percent.40

The American Chiropractic Association (ACA) filed suit against HHS in November 1998, and after much legal haggling as a direct result of the ACA's lawsuit, the HHS, headed by Sec. Tommy Thompson, issued a new policy directive on Jan. 15, 2002, by the Center for Beneficiary Choices that suddenly gave DCs four steps up the Medicare ladder:41

  • The (Medicare) statute specifically references manual manipulation of the spine to correct a subluxation as a physician service.
  • Thus, Medicare+Choice organizations must use physicians, which include chiropractors, to perform this service.
  • They may not use non-physician physical therapists for manual manipulation of the spine to correct a subluxation, and that manipulation must be provided by Medicare managed care plans.

However, in October 2004, chiropractors took a fall down the rungs when the U.S. District Court ruled that since MDs and DOs had universal (plenary) licenses, they were qualified to deliver the service and act as gatekeepers for the medical necessity of the chiropractic service. Two steps back down the Medicare ladder for DCs.

The ACA again appealed and on Dec. 13, 2005, the U.S. Court of Appeals for the District of Columbia ruled the District Court had no jurisdiction to render the decision approving the use of MDs and DOs to render the chiropractic service. One step back up the ladder for DCs.

However, chiropractic took an unexpected step back up the Medicare ladder when the appeals panel also questioned the District Court's opinion on the issue of which health care providers are qualified to provide chiropractic services, not just which providers are licensed to provide such services.

The Court of Appeals emphasized the importance of "scope of competence" and "qualified to furnish," rather than the outmoded model of a plenary license being all the qualification required to deliver a skilled service.42

Indeed, if that were the case, a medical general practitioner would be qualified to render brain surgery simply due to their medical license.

Attorney George McAndrews put it bluntly during the Trigon case: "When patients are forced to take their health problems from a chiropractor to a medical physician [or PT] who isn't skilled in that area ... that is a funneling of business from the most-skilled to the least-skilled providers."43

Then-ACA President Richard Brassard, DC, announced: "We are happy that the issue is now whether or not a practitioner is 'qualified,' not whether or not a practitioner is simply licensed. The ACA's position has been and remains that only chiropractors are qualified by education and training to correct subluxations. Because of the Appeals Court's decision, chiropractors can continue to fight to safeguard their right to be the sole providers of this service, and to ensure Medicare patients' rights to access doctors of chiropractic."44

This point remains paramount today in regards to who is best qualified to render "conservative care" for patients with acute LBP in Medicare.

Although back pain can have various causes that are helped by various professionals, such as disc derangement, radiculopathy and muscle trigger points, the single-largest source is due to joint pain. Two studies by Murphy and Hurwitz found joint dysfunction was the cause of neck pain in 69 percent of cases and the cause of low back pain (lumbar and sacroiliac) in 50 percent of patients.45-46

Considering there are more than 300 joints in the entire spinal column,47 it should not come as a surprise why spinal manipulative therapy (SMT) is considered the leading treatment in the majority of cases.

The question as to whether or not SMT and chiropractic care is the best type of conservative care for the pandemic of low back pain was also explained in testimony by John McMillan Mennell, MD, who enlightened the court as to the value of spinal manipulation during his testimony at the Wilk trial:

"Eight out of ten patients [who] come out of any doctor's office complain of a musculoskeletal system problem, regardless of what system the pain is coming from ... I will say 100 percent of those complaints [are] due to joint dysfunction in the musculoskeletal [system] ... If you don't manipulate to relieve the symptoms from this condition of joint dysfunction, then you are depriving the patient of the one thing that is likely to relieve them of their suffering."48

In this light, spinal manipulative therapy to correct joint dysfunction must be considered the leading treatment for neck and low back pain. Certainly a case can easily be made that DCs stand heads above MDs, DOs and PTs in regards to rendering SMT by virtue of our training and practice.

DCs as America's Primary Spine Providers

If we are to ascend to the top of the Medicare ladder of opportunity during this "national scandal" in spine care, we must assert to CMS, the bellwether for all payors, that DCs are the best practitioners offering the best service for the majority of back pain cases. This must become the goal for both the ACA and the Foundation for Chiropractic Progress (F4CP) during the upcoming year.

Obviously there is the need to train DCs in the clinical PEPPER protocols and best practices to assume this role. Just as all conservative treatments are not equivalent, certainly not all chiropractic methods have the same effectiveness for acute low back pain in adults. If general-practitioner DCs want to assume the role of PSPs, it behooves them to realize the best practices for acute LBP.

We must address the same issue as the Court of Appeals; that is, "whether or not a practitioner is 'qualified,' not whether or not a practitioner is simply licensed."

For example, a 2001 comparative study published in JMPT49 rated on a scale of 1-10 the effectiveness of procedure ratings for acute low back pain for 10 procedures. Ranking them in descending order for low back pain revealed the following:

  1. HVLA, no drop table (side posture): 9.5
  2. HVLA, prone, with drop-table assist: 8.7
  3. Distraction technique: 8.7
  4. Mobilization: 8.0
  5. HVLA, prone, without drop-table assist: 6.4
  6. Pelvic blocking procedures: 6.3
  7. Lower extremity adjusting: 3.7
  8. Instrument adjusting: 3.7
  9. Non-thrust / reflex / low force: 3.5
  10. Upper cervical: 3.3

Certainly not all DCs utilize the top treatments for LBP, nor do all DCs care to treat SRDs in favor of other specialties such as upper cervical, pediatrics, etc. Nor is SMT alone the only treatment required to control pain and stabilize the spine, as Dr. Murphy notes in his book. Nonetheless, if a chiropractor wants to qualify as a PSP for LBP, the use of the top adjusting methods, along with differential diagnosis including the biopsychosocial model, for SRD treatments is a good place to begin.

Today the evidence is on our side. If our profession is vigilant on keeping chiropractic care at the forefront of "conservative care," as the comparative studies agree, this will be great leverage to channel prospective patients with acute LBP into our offices before PT, drugs, shots and spine surgeries.

Beginning in the days when we were called "rabid dogs and killers who practice an unscientific cult" by the AMA propagandists,50 after a steep and perilous climb we can now see the light of truth at the top of this Medicare ladder of opportunity. As Lou Sportelli, DC, noted: "If the doctors of chiropractic only cornered the market on one condition, back pain, there would not be enough now to handle the volume."51


  1. "US Spine Care System in a State of Continuing Decline?" The BACKLetter, 2012;28(10):1.
  2. PEPPER User's Guide, Twelfth Edition: Short-Term Acute Care Program for Evaluating Payment Patterns Electronic Report. Prepared by TMF Health Quality Institute, 2013.
  3. Elliott Fisher, MD, on the CBS Evening News: "Attacking Rising Health Costs," June 9, 2006.
  4. Program for Evaluating Payment Patterns Electronic Report (PEPPER) SCORECARD. Whitepaper prepared by Moore Stephens Lovelace, CPAs & Advisors, October 2013.
  5. "Looming Gaps in the Evidence on Spinal Stenosis." The BACKLetter, January 2014;29(1):1-10.
  6. Harrison L. "Fusion on the Rise for Spinal Stenosis.." Medscape Medical News, Feb. 15, 2012.
  7. Bigos, et al. Clinical Practice Guideline, Number 14: Acute Low Back Problems in Adults. U.S. Dept. of Health and Human Services, Public Health Service, Agency for Health Care Policy and Research. AHCPR Publication No. 95-0642, December 1994.
  8. BlueCross BlueShield of North Carolina Corporate Medical Policy: Lumbar Spine Fusion Surgery. Last reviewed May 2013.
  9. Murphy DR. Clinical Reasoning in Spine Pain, Volume 1: Primary Management of Low Back Disorders Using the CRISP Protocols. Donald Murphy 2013:8.
  10. Boden SD, Davis DO, Dina TS, et al. Abnormal magnetic-resonance scans of the lumbar spine in asymptomatic subjects: a prospective investigation. J Bone Joint Surg (Am), 1990;72:403-408.
  11. Todd Schuck T. The Future of Spine Surgery: Pervasive Scrutiny & Shifting Trends Create Uncertainty for Inpatient Spine Procedures." Senior director - business development, Specialty Healthcare Advisers. Jan. 13, 2014.
  12. Ibid.
  13. "Spinal Fusion Is New PEPPER Target, With Focus on Medical Necessity of Procedures, Volume 21, Number 5 • February 6, 2012 Copyright © 2012 by Atlantic Information Services, Inc.
  14. Ostrow N. "U.S. Nonprofit Hospital CEO Annual Pay Averages $600,000." Bloomberg News, Oct. 14, 2013.
  15. Spinal Fusion, Op Cit.
  16. Washington Post Business, Oct. 28, 2013.
  17. Gamble M. "7 Notable Developments in Hospital Fraud & Abuse Enforcement." Becker's Hospital Review, Aug. 12, 2013.
  18. "Whistleblower: Halifax Health Sent Patients to Unnecessary Surgeries Like 'Sending Lambs.'" WFTV.com, Oct. 28, 2013.
  19. The BACKPage (editorial). The BackLetter, November 2012;27(11).
  20. Carreyrou J, McGinty T. "Top Spine Surgeons Reap Royalties, Medicare Bounty." The Wall Street Journal, Dec. 20, 2010.
  21. Bigos, Op Cit.
  22. Ibid.
  23. Ibid.
  24. Freeman MD, Mayer JM. NASS contemporary concepts in spine care: spinal manipulation therapy for acute low back pain. The Spine Journal, October 2010;10(10):918-940.
  25. "Spinal Fusion." North American Spine Society Public Education Series.
  26. Joy EA, Van Hala S. Musculoskeletal curricula in medical education - filling in the missing pieces. The Physician And Sports Medicine, November 2004;32(11).
  27. Bishop PB, et al. The C.H.I.R.O. (Chiropractic Hospital-Based Interventions Research Outcomes): a randomized controlled trial on the effectiveness of clinical practice guidelines in the medical and chiropractic management of patients with acute mechanical low back pain. Spine Journal, December 2010;10(12):1055-1064.
  28. Bederman SS, Mahomed NN, Kreder HJ, et al. In the eye of the beholder: preferences of patients, family physicians, and surgeons for lumbar spinal surgery. Spine, 2010;135(1):108-115.
  29. Weiner SS, Weiser SR, Carragee EJ, Nordin M. Managing nonspecific low back pain: do nonclinical patient characteristics matter? Spine, 2011;36:1987-1994.
  30. Woolf AD, Pfleger B. "Burden of Major Musculoskeletal Conditions," Bulletin of the World Health Organization, 2003;81(9):646-656.
  31. Matzkin E, Smith MD, Freccero DC, Richardson AB, Adequacy of education in musculoskeletal medicine. J Bone Joint Surg (Am), 2005;87-A:310-314.
  32. Haldeman S, Dagenais S. A supermarket approach to the evidence-informed management of chronic low back pain. Spine Journal, 2008;8(1):1-7.
  33. Keeney BJ, Fulton-Kehoe D, Turner JA, Wickizer TM, Chan KC, Franklin GM. Early predictors of lumbar spine surgery after occupational back injury: results from a prospective study of workers in Washington State. Spine, May 2013;38(11):953-964.
  34. Stason WB, Ritter G, Shepard DS, C Tompkins, et al. Report to Congress on the Evaluation of the Demonstration of Coverage of Chiropractic Services Under Medicare. June 16, 2009.
  35. Chapman-Smith D. "Cost-Effectiveness Revisited." The Chiropractic Report, November 2009;23(6).
  36. Choudhry N, Milstein A. "Do Chiropractic Physician Services for Treatment of Low-Back and Neck Pain Improve the Value of Health Benefit Plans? An Evidence-Based Assessment of Incremental Impact on Population Health and Total Health Care Spending. Harvard Medical School, Boston, and Mercer Health and Benefits, San Francisco; 2009.
  37. United Kingdom Back Pain Exercise and Manipulation (UK BEAM) randomised trial: cost effectiveness of physical treatments for back pain in primary care. British Medical Journal, 2004;329:1381.
  38. Manga P, Angus D. "Enhanced Chiropractic Coverage Under OHIP as a Means of Reducing Health Outcomes and Achieving Equitable Access to Select Health Services. Ontario Chiropractic Association, 1998.
  39. Stano M, Smith M. Chiropractic and medical costs for low-back care. Med Care, 1996;34:191-204.
  40. Smith M, Stano M. Cost and recurrences of chiropractic and medical episodes of low-back care. J Manipulative Physiol Ther, 1997;20:5-12.
  41. Jarvis KB, Phillips RB, et al. Cost per case comparison of back injury of chiropractic versus medical management for conditions with identical diagnosis codes. J Occup Med, 1991;33:847-52.
  42. Ebrall PS. Mechanical low-back pain: a comparison of medical and chiropractic management within the Victorian Workcare scheme. Chiro J Aust, 1992;22:47-53.
  43. Johnson W, Baldwin M. "Why Is the Treatment of Work-Related Injuries So Costly? New Evidence From California, Inquiry, 1996;33:56-65.
  44. Jay TC , Jones SL, et al. A chiropractic service arrangement for musculoskeletal complaints in industry: a pilot study. Occup Med, 1998;48:389-95.
  45. Mosley CD, Cohen IG, et al. Cost-effectiveness of chiropractic care in a managed care setting. Am J Managed Care, 1996;11:280-2.
  46. Legorreta AP, Metz RD, Nelson CF, et al. Comparative analysis of individuals with and without chiropractic coverage, patient characteristics, utilization and costs. Arch Intern Med, 2004;164:1985-1992.
  47. Meade TW, Dyer S, et al. Low-back pain of mechanical origin: randomised comparison of chiropractic and hospital outpatient treatment. Br Med J, 1990;300:1431-37.
  48. Haldeman S, Carroll L, et al. The Bone and Joint Decade 2000-2010 Task Force on Neck Pain and its Associated Disorders: executive summary. Spine, 2008;33(4S):S5-S7
  49. Wolsko PM, Eisenberg DM, et al. Patterns and perceptions of care for treatment of back and neck pain. Results of a national survey. Spine, 2003;28(3):292-298.
  50. Whedon JM, Song Y, Davis MA. Trends in the use and cost of chiropractic spinal manipulation under Medicare Part B. Spine J, 2013 Jun 14;pii: S1529-9430(13)00521-4.
  51. Testimony before the Institute of Medicine: Committee on Use of CAM by the American Public on Feb. 27, 2003.
  52. Independent Practitioners Under Medicare (1968). Chapter I: Dimensions, Methodology, and Background of the Study.
  53. Sherman SR. Letter from H. Doyl Taylor, director, AMA Dept. of Investigation, 20 February 1968. Wilk. PX-332
  54. Devitt M. "Landmark Decision in ACA Lawsuit Against HHS," Dynamic Chiropractic, Jan. 15, 2006.
  55. Sportelli L. "A New Revelation - A Renewed Hope for Resolution." Dynamic Chiropractic, Jan. 15, 2006.
  56. Devitt M, Op Cit.
  57. Sportelli L, Op Cit.
  58. "Judge Rules on Trigon's Motion to Dismiss ACA Lawsuit." Dynamic Chiropractic, Aug. 6, 2001.
  59. Devitt M, Op Cit.
  60. Murphy DR, Hurwitz EL. Application of a diagnosis-based clinical decision guide in patients with neck pain. Chiropractic & Manual Therapies, 2011;19
  61. Ibid.
  62. Personal communication with G Cramer, dean of research, National University of Health Sciences. April 29, 2009.
  63. Transcript of the testimony of John McMillan Mennell, MD. Wilk v AMA transcript, pp. 2090-2093.
  64. Gatterman MI, Cooperstein R, Lantz C, et al. Rating specific chiropractic technique procedures for common low back conditions. JMPT, 2001 Sep;24(7):449-56.
  65. Minutes from the "Chiropractic Workshop," by the Michigan State Medical Society. Lansing, Mich., May 10, 1973. Exhibit 1283, Wilk.
  66. Sportelli L. "AHCPR: It Did Not Happen By Accident." Dynamic Chiropractic, Jan. 16, 1995.

Dr. J.C. Smith, 1978 graduate of Life Chiropractic College, is the author of The Medical War Against Chiropractors: The Untold Story From Persecution to Vindication. Contact Dr. Smith via his website, www.chiropractorsforfairjournalism.com.

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