Section 2706 (codified as 42 U.S.C. Sec. 300gg-5) of the Affordable Care Act (the “ACA”) prevents group health plans, and health insurance issuers offering group or individual health insurance coverage, from discriminating against any health care provider acting within the scope of his or her state license. Section 2706 is of concern to advocates of evidence-based medicine, however, because the statute’s vague language boosts (at least on paper) the purveyors of unscientific medical claims – in particular, practitioners of Complementary and Alternative Medicine (“CAM”). Section 2706 should be completely repealed. But short of full repeal, the three agencies charged with administering the ACA (the Departments of Health and Human Services (HHS), Labor and Treasury), and therefore Section 2706, should issue guidance preventing that practitioners of health fraud, unscientific and sectarian medical practices from gaining any undeserved legitimacy.
Section 2706 was inserted into the ACA, without a hearing, under the leadership of Sen. Tom Harkin (D-IA) after intense lobbying from practitioners of CAM – particularly chiropractors, naturopaths, homeopaths and acupuncturists. “It’s time that our health care system takes an integrative approach . . . whether conventional or alternative,” Sen. Harkin told Kaiser Health News. “Patients want good outcomes with good value, and complementary and alternative therapies can provide both.”
Rep. Andy Harris (R-MD), a medical doctor, is sponsoring a bill (H.R. 2817) to repeal Section 2706 outright. And last July, seven medical societies sent Rep. Harris a letter supporting his efforts. These societies expressed their concern that,
for certain covered services in a number of states, [Section 2607] will be interpreted to provide that all health professional groups be considered as if their education, skills and training were equal even if the state-based medical and healthcare professional licenses or certifications are very different.
Full repeal of Section 2706, however, is increasingly unlikely. Even though Republicans in the House have voted to repeal, defund or delay the ACA 50 times since the law’s passage in 2010, it is unlikely that H.R. 2817 will even reach the House floor. That is not the end of the story, however. Though repeal is unlikely, it may also be unnecessary. The starting point for interpreting a statute is the language of the statute itself. Here is what Section 2706 says:
SEC. 2706. NON-DISCRIMINATION IN HEALTH CARE.
(a) PROVIDERS. –A group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law. This section shall not require that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer. Nothing in this section shall be construed as preventing a group health plan, a health insurance issuer, or the Secretary [of HHS] from establishing varying reimbursement rates based on quality or performance measures.
Therefore, while Section 2706 broadly prohibits discrimination, it contains two important limitations. First, Section 2706 does not require insurance companies to contract with any provider agreeing to the insurer’s contract. Second, the section permits an insurer to consider “quality and performance measures” when determining the different rates it will pay different providers.
Unfortunately, however, the vague anti-discrimination language is, as the American Medical Association (which also supports H.R. 2817) noted, “open to wide interpretation, raises the specter of conflicts with state scope of practice policies, and could lead to policies that have harmful consequences for patients.” Compounding this problem is the fact that HHS, Labor, and Treasury have all refused to issue regulations interpreting this provision.
But why is this all important? What do chiropractors, naturopaths, homeopaths, acupuncturists, and other CAM providers want? What do CAM providers think should be covered under the ACA?
In short: they want to be considered primary care providers, and they want insurance to pay for it. Indeed, a recent article from the journal of Chiropractic and Osteopathy argues that chiropractic care should be considered “clinical preventive services,” which the ACA considers an “essential health benefit” that insurers must provide.
This is particularly distressing, however, given the complete lack of empirical foundation underpinning most, if not all, varieties of CAM. Consider chiropractic, for example, the discipline that has been the most vocal in its support of Section 2706.
Chiropractic was founded in 1895 by Daniel David Palmer, a grocer and magnetic healer from Davenport, Iowa. Palmer likened himself to Jesus, Mohammed, Joseph Smith, and Mary Baker Eddy, and believed in the doctrine of vitalism, the notion that “intelligent energy” conveys information among various body parts. Palmer reported to have discovered the principles of chiropractic after he allegedly cured a janitor, Harvey Lillard, of his deafness by manipulating his neck. (The fact that this makes no anatomical sense did not seem to bother Palmer.)
Palmer referred to his new therapy as “chiropractic,” which literally means “done by hand,” and erroneously believed that he had discovered the key to all disease. Palmer conceived of chiropractic as a “philosophy, art, and science” of healing. But rather than subjecting his ideas to any form of research, Palmer began (virtually overnight) treating patients, wrote a textbook, and opened a school to teach his principles to the first generation of chiropractors.
At the heart of chiropractic lie the following premises: (1) the body is possessed of an “innate intelligence” that permits it, under ordinary circumstances, to repair itself as needed; (2) this innate intelligence is transmitted through the nervous system; and (3) disease is caused by disruptions in the “nerve flow” resulting from “subluxation,” or misalignment, of the vertebrae. Disease, according to chiropractic, can therefore be treated by manual adjustments to the spine.
However, this vitalistic philosophy, which is exclusive to chiropractic, has never stood up to scientific scrutiny. Although there is some evidence that chiropractic manipulation can provide modest medical benefits for certain ailments (e.g. for chronic back pain), research evidence has failed to find chiropractic manipulation convincingly more effective than standard medical care. But here’s the more important point: there is no evidence (at all) that subluxations exist. In fact, it has been shown to be anatomically impossible for misaligned vertebrae to interfere with the autonomic nervous system. And no one has ever been able to demonstrate that subluxations cause disease by theoretically compromising neural integrity.
In “An epidemiological examination of the subluxation construct using Hill’s criteria of causation,” three chiropractors and a PhD in physical eduction analyzed the peer-reviewed chiropractic literature and asked whether the evidence shows that chiropractic subluxations cause interference with the nervous system and whether they cause disease. Their conclusion: the evidence failed to fulfill even a single one of Hill’s nine criteria of causation. According to the authors,
There is a significant lack of evidence in the literature to fulfill Hill’s criteria of causation as regards chiropractic subluxation. No supportive evidence is found for the chiropractic subluxation being associated with any disease process or of creating suboptimal health conditions requiring intervention. Regardless of popular appeal this leaves the subluxation construct in the realm of unsupported speculation. This lack of supportive evidence suggests the subluxation construct has no valid clinical applicability.
There are several explanations for the dearth of clinical evidence underpinning chiropractic. But one is fundamental: Even with the best of intentions, it is difficult to design a rigorous study to ascertain the effectiveness of chiropractic. Only one form of study can prove that a treatment is effective: the double-blind, placebo-controlled clinical trial. However, it isn’t easy to fit chiropractic into a study design of this type. CAM researchers, therefore, have often resorted to what are known as “pragmatic trials,” a type of clinical trial meant to mimic the “real world” in order to study how treatments work outside the confines of randomized trials.
Pragmatic trials are often said to measure “effectiveness,” while randomized trials measure “efficacy.” But consider the obstacles in terms of chiropractic. What could researchers use for placebo chiropractic treatment? How could researchers ensure that both participants and practitioners are kept in the dark regarding who was receiving real manipulation and who was receiving fake manipulation? Because of these problems, all studies of chiropractic manipulation fall short of optimum design, and are inherently vulnerable to placebo effects, confirmation bias, expectancy effects, and the like.
This is not to suggest that pragmatic trials have no place in clinical research. They do. In fact, pragmatic trials are very useful in determining the effectiveness of treatment that has already been shown to be efficacious in randomized clinical trials. Pragmatic trials can greatly benefit the existing clinical research because these trials will often include patients who don’t meet the strict inclusion and exclusion criteria of a good clinical trial, but who nonetheless are representative of the wider variety of patients the drug or treatment will reach if it is approved for use. But such trials simply cannot be used to justify “integrating” unscientific quackery with science-based medicine, no matter how popular the quackery may be with the general public.
Now, it is true that some chiropractors have adopted evidence-based spinal manipulation therapy into their practices, perhaps to give their practices an air of legitimacy. But the subluxation construct (which, again, is unique to chiropractic) is nonsense. And without subluxation theory, the entire rational for chiropractic collapses unto itself. Chiropractors, therefore, are left with no justifiable place in modern medical care, except as competitors of physical therapists, doctors of osteopathy, and others who provide treatment of certain muscoloskeletal conditions.
The story is similar with respect to nearly every other CAM therapy. And there is a reason for this. As Tim Minchin states: “Alternative medicine has either not been proved to work, or been proved not to work. You know what they call alternative medicine that’s been proved to work? Medicine.”
It’s time to stop giving alternative medicine a free ride.
We all want the same thing – to reach our most optimum health. But the question is how best to achieve that. If an alternative medicine works, then it’s medicine. If an alternative medicine doesn’t work, then it’s not an alternative. Our health decisions should be based on the best current evidence and collective expert opinion. And subluxations, or meridians, or astrology do not fall on the narrow path leading to better health.
CAM practitioners and proponents claim that Section 2706 will “end provider discrimination” against CAM by insurance companies. There are reasons to believe that Section 2706 may not be the panacea CAM proponents hope it will be. For one thing, being a covered provider doesn’t necessarily mean everything you provide is covered. But it is concerning that the Affordable Care Act elevates, at least in principle, unproven and unscientific medical claims. Section 2706 is unnecessary, and should be repealed. But absent full repeal, the agencies charged with implementing the ACA should ensure that the Act stays true to its mandate – to expand access to quality medical care – and promotes evidence-based medicine over quackery and superstition.
Featured Image Credit: Michael Dorausch on Flickr