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Memorandum
To: ACA Members, House of Delegates, Board of
Governors and Other Interested Parties
From: Garrett Cuneo
Re: ACA EVP Weekly Report
Date: September 29, 2003
This week's report includes the following items:
1. Trigon Files Its Response With U.S. Circuit Court of Appeals
2. California Recall And Race Still In Doubt
3. White House Weighs In On Medicare Fight
4. Iowa Doctors Know The Value Of Grassroots
5. Beach Boys Highlight Evening Of Fun At HOD
6. Greenawalt Sponsors Major Bush/Cheney Fundraiser; PAC Participates
7. Lt. Col. Losack Presents At HOD
8. ACA To Be Represented At The Cleveland Conference
1. TRIGON FILES ITS RESPONSE WITH U.S. CIRCUIT COURT OF APPEALS
Trigon has filed its response brief in connection with the ongoing ACA appeal in the Trigon lawsuit before the U.S. Court of Appeals for the Fourth Circuit. Attorneys for the ACA, the VCA and the chiropractic plaintiffs are reviewing the Trigon response and have 14 days to file a final reply before the case moves for oral argument before a three-judge panel of the Court of Appeals. As expected, Trigon continues to argue that, as a matter of law, the managed care committee, composed of representatives from the various medical trade associations in Virginia, could not conspire with Trigon against the chiropractic profession in Virginia.
They point to case law dealing with peer review committees operating in a hospital setting for the determination of clinical privileges. They maintain that this case law is controlling in the situation which a managed care review committee, consisting of direct competitors of the chiropractic profession, determines payment, referral and other reimbursement issues directly affecting chiropractors. We believe reliance on this case law is misplaced and that hospital credentials review is quite different from the type of reimbursement and referral decisions made by Trigon's managed care committee.
We believe the evidence will show that the direct competitors of chiropractors in Virginia had the power to approve reimbursement and referral guidelines directly affecting the practices of doctors of chiropractic and those competitors exercised that power to the detriment of chiropractors and their patients. The ACA also seeks to obtain additional discovery prior to January 1, 1996 that was denied by the trial judge.
Make no mistake about it, this litigation is at a critical juncture. As Mr. McAndrews has previously stated, the decision of the trial judge likening the activities of Trigon's managed care committee to that of a hospital peer review board "stands antitrust law on its head." If the actions of competitive groups to directly restrict payment and referral of patients to a competitive provider group are not subject to antitrust scrutiny, then the nation has no antitrust law protection. We have stated from the outset that the Trigon case would have profound impact beyond Virginia. We now face the second largest Blue Cross/Blue Shield plan in the nation, i.e. Anthem, operating in eight different states. We now also are arguing an issue central to the antitrust laws affecting insurance plans and managed care organizations in all states.
The decision of the 4th Circuit Court of Appeals will profoundly affect the legal landscape in terms of how insurance plans and managed care organizations deal with doctors of chiropractic. Trigon represents the best chance to move the profession forward that we have seen since the Wilk case. That case used the antitrust laws to knock down ethical barriers of discrimination. Hopefully, Trigon will use those same laws to knock down the barriers of economic discrimination.
2. CALIFORNIA RECALL AND RACE STILL IN DOUBT
The last two weeks have been a roller coaster ride for those who have watched or been involved in the effort to recall California Governor Gray Davis and in the race of those who wish to succeed him. It began with a ruling by a three-judge appeals panel that ruled to delay the election until March of next year due to the claim that in six or seven counties in California the voting machines could be problematic. Many speculated that such a ruling would benefit the incumbent governor. Polls had shown that, although a majority still favored his recall, the amount had shrunk to 53 percent, and some hoped that further delay would help his numbers. In any case, the court decision was reviewed by the entire appeals panel and was overturned. The recall and election will be held on October 7.
The race to replace Davis is as close as ever before. Last week five of the major candidates, including Arnold Schwarzenegger, participated in a freewheeling debate. Articles in the Washington Post referred to it as a food fight. One columnist speculated that the real winner in the debate was the incumbent governor who didn't participate. Nevertheless, following the debate two conservative leaders gave their support to Schwarzenegger. Congressman Darrell Issa, who was principle contributor to the recall effort, and William Simmon, who ran against Davis last year and was an early candidate in this year's effort, not only came out in support of Schwarzenegger but also urged conservative candidate Tom McClintock to quit the race. McClintock was getting 12 percent to 14 percent in the polls -- votes that could go to Arnold. So far McClintock has shown no interest in backing out. Stay tuned.
Late Breaking News: Today's CNN/USA Gallup Poll paints a different picture: 63% of probable voters would vote to recall Davis. To replace Davis, 43% would vote for Schwarzenegger, 25% for Bustamante and 18% for McClintock. A California Chamber of Commerce Poll had a slightly different result: 34% for Schwarzenegger; 31% for Bustamante and 17% for McClintock. Go figure!
3. WHITE HOUSE WEIGHS IN ON MEDICARE FIGHT
As predicted, this week the White House, more specifically the president, has gotten involved in loosening the logjam that exists in the Senate/House conference committee trying to resolve the differences in the Medicare Drug Reform Act, which includes our demonstration project. Senator Frist has set October 17 as the date that the issue needs to be tied up.
Now is the time to contact your member of Congress and urge that he or she contact Congresswoman Nancy Johnson to urge that the House conference support the Senate's decision to include the chiropractic demonstration project in the final version. Remember, Senator Frist sits on the conference committee and Congressman Bill Thomas does as well. Both will make every effort to keep the demonstration project out of the final version. We can't let that happen. I have provided a link for further information:
http://www.acatoday.com/government/medicare/alert_050503.shtml.
4. IOWA DOCTORS KNOW THE VALUE OF GRASSROOTS
Dr. Dow Bates, delegate from Iowa, led a contingency of doctors and their spouses who attended the 26th Annual Harkin Steak Fry in Indianola, Iowa, which featured the majority of democratic candidates for president, Senator Harkin and former president Bill Clinton. Those doctors participating included ACA Alternate Delegate Dr. Steven Krause, Iowa Chiropractic Society President Dr. Ken Storjohann and six other ICS officers and members of their Board of Directors, FCER's DeAnna Beck and FCER Trustee Dr. Ron Evans. Our doctors mingled with many prominent democratic leaders locally and nationally. A nice, simple way to keep chiropractic on their radar screen.
5. BEACH BOYS HIGHLIGHT EVENING OF FUN AT HOD
For those of you who are children of 60s and 70s, you will have to be impressed with the news that Al Jardine and the Beach Boys performed at a special delegate dinner sponsored by the ACA Auxiliary that was held during the recent House of Delegates meeting in Albuquerque, NM. More than 200 doctors, SACA students and their guests heard the group perform all of its greatest hits, including Barbara Ann, which has never sounded so good at a chiropractic function. The evening also saw skits performed by SACA students, the Texas delegation and the "Brotherhood." (The Sopranos have nothing to worry about.)
Money raised at this event helped support NCLAF and the Auxiliary Scholarship Program. Special thanks to the Auxiliary for putting on a top rate evening and to the following sponsors: Breakthrough Coaching, Footlevelers, Lloyd Tables, Texas Chiropractic College, Dynamic Chiropractic, Scrip, Inc. and McAndrews, Held & Malloy.
6. GREENAWALT SPONSORS MAJOR BUSH/CHENEY FUNDRAISER; PAC PARTICIPATES
The front page of the Roanoke Times over three days headlined the appearance of Vice President Dick Cheney at a fundraiser held at the home of Kent Greenawalt. One of the stories talked specifically about Kent, his accomplishments and what he has contributed to the profession and to the community. Over 200 people attended the Bush-Cheney event along with many members of the Republican congressional delegation. Dr George McClelland, ACA chairman, and his wife, Susan, attended on behalf of the ACA-PAC. There were a number of other doctors in attendance, including Vickie Palmer, Mark Sanna, Pat Gentempo, Fabrizio Mancini, Larry Markson, and Joe Doyle from Chiropractic Economics. Roanoke has never seen such activity and the association of Kent with chiropractic was a real plus.
7. LT. COL. LOSACK PRESENTS AT HOD
Many of you have probably read the story in Dynamic Chiropractic and in the CCA Journal regarding the efforts of Dr. Losack to bring chiropractic to the front in Iraq. I frankly recall skimming the article but not giving it a lot of thought. At HOD, Dr. Losack reported on his experience, and listening to his presentation gave me greater appreciation of his accomplishments. Dr. Losack was a practicing doctor of chiropractic who served in the Marine reserves as a Lt. Col. Intelligence Officer. Soon after the Iraqi conflict began, his reserve unit was called up. He closed his office and transferred his patients to other doctors. He loaded his belongings and his adjustment table and set off for Iraq. He was stationed at a "ready room" where in the evening he set up his adjustment table and treated patients. Helicopter pilots would come in the evening for treatment. Soon medical doctors were referring patients to him. Word got back to the bureaucrats in Washington D.C. Instead of embracing the success, the medical officers were criticized for allowing the adjustments to occur. Fortunately, the commanding officer had the guts to overrule Washington and Dr. Losack was allowed to continue.
Dr. Losack continued to treat members of the military as they moved into various parts of Iraq. At one point he had a picture taken of him adjusting a patient in front of one of Saddam Hussein's palaces. The picture got published and once again his superior officers received criticism from Washington. One major told him to stop. Losack agreed to no more pictures, but said he would continue to adjust patients. The major soon became a patient. For more details, here is a link to the story that appeared in Dynamic Chiropractic:
http://www.chiroweb.com/archives/21/11/12.html.
Dr. James Edwards, outgoing ACA chairman, gave him a special chairman's award for valor. It was an absolutely appropriate award. Dr. Losack wasn't only willing to give up his chiropractic practice for his country, but was willing to jeopardize his career to take care of our combat forces who needed chiropractic care.
8. ACA TO BE REPRESENTED AT THE CLEVELAND CONFERENCE
The ACA will be exhibiting and former ACA Chairman Dr. Mike Flynn will be speaking at the Cleveland Conferences, Los Angeles Expo 2003 to be held at the Sheraton Universal Hotel in University City, California, from October 9-11. Dr. Flynn will be sharing a stage with Dr. C.J. Mertz where they will both be commenting on "Communicating the Principle, Practice and Passion of Chiropractic." The weekend program also includes a number of other prominent speakers, including Mark Victor Hansen, Dr. Larry Markson, Dr. Dennis Perman, Dr. Bobb Hoffman and Dr. Mark Charrette. For further information, go to
http://www.cleveland.edu or call at 1-800-628-9592.
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