On May 19, 1998, the governor signed into law the Automobile Cost Reduction Act.
On Sept. 8, 1998, the New Jersey Department of Banking and Insurance published the proposed rules. Their impact was like an earthquake striking chiropractic and all health care communities.
The rules were engineered to establish managed-care-type treatment protocols. The treatment protocols are designed as "care paths" presented in the form of a flow chart, radically limiting or, in some cases, eliminating chiropractic. Visits, time parameters, type of treatment and test are all cut.
The regulations contain six care paths, all dealing with back injuries. Three of the six care paths, cervical, thoracic and lumbar herniated disc/radiculopathy symptoms, completely eliminate chiropractic care.
Despite an intense objection by New Jersey chiropractors, the care paths were published on Dec. 21, 1998. These care paths will affect all insurance policies renewed after March 22, 1999.
The treatment protocols for back injuries were developed by the accounting firm of Price-Waterhouse-Coopers. None of the accountants could qualify as a chiropractic expert witness at any legal hearing. Some of the draconian provisions include: 1) Auto accident victims are permitted up to 12 chiropractic treatments during the first month of treatment. 2) All patients must go through a review after four week of treatment. 3) All diagnostic testing must be pre-approved after the first 10 days post-accident. 4) All patients must have a mandatory "independent" medical examination between 12-14 weeks after the accident. 5) After 12 weeks, all treatment will be under the supervision of a case manager appointed by the insurance industry.
Initially, the chiropractic community was the sole profession that struck back by filing a lawsuit (Chiropractic America vs. Jaynee LaVecchia, et al.) in the U.S. District Court, New Jersey. Ms. LaVecchia was named as a defendant, as she is the commissioner of of the department of banking and insurance.
Chiropractic America, a national organization, claims that the care paths "are nothing but junk science and opinions" rendered by legally incompetent and unqualified individuals. The complaint charged that the accountants have no expertise on the standard of care in New Jersey for treatment of any type of back injury; that the accountants did not consult a single chiropractor when drafting the protocols, despite the legislative mandate to the contrary.
Chiropractic America alleges that the care paths are "flawed and dangerous to the health and well being to the future accident victims." After several months, the Monmouth Ocean County Chiropractic Society joined the suit.
Instead of answering the complaint, the New Jersey Department of Banking and Insurance and all named defendants filed a motion to dismiss the complaint. They alleged that the complaint was filed in the wrong venue, since Chiropractic America was asserting state law claims to be decided by a New Jersey state court. Realizing a decision by a federal court judge would be the only avenue to halt the care paths in their tracks before it became effective in March 1999. Chiropractic America pushed forward, claiming that the care paths violated the due process rights of doctors and patients.
On February 5, 1999, after extensive briefing and oral argument, U.S. District Court Judge Jerome Simandle granted the New Jersey Department of Banking Insurance's motion to dismiss. Judge Simandle stated that since four other lawsuits are pending in the New Jersey state appellate division (including one filed by Chiropractic America), an adequate remedy exists in the state court for these law claims. Unfortunately, the New Jersey appellate division will not hear this matter before March 22, 1999, the date the care paths are effective.
These new care paths will set the standard of care for chiropractic treatment for auto accident victims. Once in effect, these care paths may eventually set a state standard by infiltrating into regular health insurance plans, creating minimal, or no insurance coverage for chiropractic care in New Jersey. The care-path formula is being studied in other states.
"I think it was pretty clear that the legislature did not want medical protocols set up by insurance companies," noted New Jersey state Senator John Adler (D).
This law is the latest serious anti-chiropractic activity making practice more difficult for chiropractors in New Jersey. This is not surprising, since chiropractic is strongly divided in New Jersey. This lack of unity has wrought a lack of clout with the state legislature, the insurance commissioner's office and the governor.
New Jersey chiropractic is one of the least organized in the U.S., resulting in minimal unity among its practitioners. The result is that chiropractic's natural enemies can easily manipulate the availability of chiropractic for New Jersey consumers.
Perhaps P.I. managed care promoted by Governor Christine Todd Whitman will inspire and force the chiropractic community to disregard their historical in-fighting and move toward a unified legislative response. Otherwise, New Jersey will step backward, leading other states to follow.
For further information, contact attorney Kimberly Gozsa, a member of the National Association of Chiropractic Attorneys, at (609) 693-6200.
Shawn Steel created a new field of law by defending chiropractors and acupuncturists, and representing their patients in personal-injury matters. He has law offices in San Francisco, Los Angeles and Orange County, Calif.; has taught ethics and jurisprudence classes at Cleveland Chiropractic College since 1991; and is a prolific lecturer and writer with more than 40 articles and book chapters to his credit.