On the same day the prohibition went into effect, the Vermont Chiropractic Association (VCA), et al.,1 filed a temporary restraining order and preliminary injunction motion in Vermont's Washington County Superior Court. The plaintiffs have petitioned the court to declare the emergency rule (ER-34) illegal, void and/or invalid, and permanently enjoin the state from enforcing or effectuating the rule.
"The problem with the Joint Fiscal Committee process was that there was no opportunity for testimony," explained Anthony Otis, the attorney for the VCA, who has worked for 25 years in legislative and governmental relations. "I thought we had the votes going in, but I don't know what happened behind closed doors."
The plaintiffs' argument to the court is that the emergency rule is "illegal and/or unconstitutional," that the decision is "irrational, conclusory, arbitrary, and capricious," and that the plaintiffs "will suffer immediate and irreparable harm without an injunction."
Why was ER 34 invoked, and why did it target chiropractic? It began when Governor Dean directed the Vermont Department of Prevention, Assistance, Transition and Health Access (PATH) to reduce its budget for fiscal year 2003. On September 5, 2002, according to the plaintiffs' motion, M. Jane Kitchell, secretary of the Agency of Human Services, stated that PATH was "...'directed' to eliminate chiropractic services, denture benefits and elective inpatient coverage." Cutting the three programs would save the state an estimated $595,662 between October 1, 2002, and June 30, 2003; by eliminating the chiropractic benefit, the state would save $43,000. Secretary Kitchell declared that without the $43,000 reduction in spending, "there exists an imminent peril to public health, safety or welfare."
PATH's reductions were part of an overall $39 million reduction in state expenditures.
The plaintiffs argue that ER 34:
- usurps and violates the authority of the Vermont General Assembly, which has the responsibility to appropriate funding for Medicaid and the Vermont Health Access Plan (VHAP). Vermont Act No. 142, Section 148(i) states: "PATH is not authorized to amend the rule for Medicaid and VHAP programs to eliminate coverage for chiropractic services for adults";
- violates the 2002 Appropriations Act, which states, in part, " ... [PATH] is not authorized to amend the rule for Medicaid and VHAP programs to eliminate coverage for chiropractic services for adults"; and
- violates the state's mandate for coverage of chiropractic services under 8 V.S.A. (4088a), which states: "A health insurance plan shall provide coverage for clinical necessary health care services provided by a chiropractic physician licensed in this state for treatment within the scope of practice described in chapter 10 of Title 26..."
The emergency rule is only valid for 120 days, at which point the legislature must come back to make the cuts permanent or semi-permanent.
The irony in the budget cuts is that those patients who cannot afford to pay out-of-pocket for their chiropractic care will, out of economic necessity, go to an MD, osteopath or PT for their ailments, which will cost the state more in Medicaid funding than chiropractic care. The reimbursement for a DC is a mere $14.56 for all examination, diagnostic, counseling and therapeutic services during an office visit. The same services provided by MDs, osteopaths or physical therapists cost the state between $21.70 and $53.30, exclusive of diagnostic tests.
"The Medicaid people and the governor should thank us for doing adjustments at this reimbursement rate," said plaintiff Shawn McDermott,DC. "We do it as a community service."
Attorney Otis noted the state has a "rainy-day" fund for emergencies, and hasn't yet dipped into that reserve. Mr. Otis deemed it "ludicrous" for the state to suggest that the Medicare savings ($43,000) for cutting chiropractic would break the state's $900 million budget.
"I think the lawsuit will send a distinct message to the politicians who did this," Mr. Otis observed. "We aren't going to take it lying down."
Mr. Otis explained that the governor, a medical doctor, has not only approved taking chiropractic out of Medicaid, but has ignored the VCA's request to be treated fairly in reimbursement rates under CPT coding. In fact, all providers except chiropractors just received a 1.5-percent increase in CPT coding reimbursement.
The good news, Mr. Otis points out, is that all of the gubernatorial candidates in Vermont do not support the Medicaid cuts. (Editor's note: Gov. Dean, in office since 1991, did not seek re-election in November 2002. Dubbed a "Bill-Clinton-type Democrat," and "responsive only to the needs of elite vested interests," he is campaigning for the 2004 presidential election. Republican State Treasurer James Douglas won the governorship, and takes office January 9, 2003. The Barre-Montpelier Times Argus deemed his victory a "remarkable accomplishment," considering that Vermont is "still the most liberal state in the nation.")
While the plaintiffs await judicial intervention, Mr. Otis plans to approach those legislators who were original sponsors to the Chiropractic Equality Law of 1999, and ask them to introduce a bill to restore the Medicaid benefits, and to insist that chiropractors have payment parity with other providers. "It's ridiculous," Mr. Otis exclaimed. "The PTs get more than we do."
- VCA, Shawn McDermott,DC, Dee Kalae v. State of Vermont, Gov. Howard Dean,MD, M. Jane Kitchel, Secretary of the Agency of Human Services, Eileen Elliot, PATH commissioner. The attorney for the plaintiffs is Joshua Diamond.
Steve Kelly, managing editor