The Acupuncture Society of New York (ASNY) and the American Society of Acupuncturists (ASA) issued the original Call to Action in late July of 2019 to provide public commentary regarding the use of acupuncture for chronic lower back pain. At the time, we took two (2) major positions: 1) We wanted Licensed Acupuncturists (L.Acs) listed specifically, rather than considered as "auxiliary personnel"; and 2) We asked that L.Acs not be required to be under the supervision of a physician, physician assistant, or nurse practitioner/clinical nurse specialist as this was not consistent with state licensing statutes that govern acupuncturists.
The decision memo cites the number of comments issued (644) and the organizations who commented which include those from the national trade association, as well as various state associations, including ASNY (all acupuncture associations are highlighted below.) While the department did not implement the changes as requested, they did modify "direct supervision" to "the appropriate level of supervision required by our regulations..." which IS a small victory.
As for next steps, the ASNY Advocacy Committee will continue to work with the American Society of Acupuncturists to determine the best course of action (which, if paying attention, has been suggested by CMS in their commentary.)
To join the ASNY Advocacy Committee, please contact
Kallie Guimond
for more information.
RESPONSES FROM CMS:
Second Comment Period: 7/15/2019 – 8/14/2019
During the 30-day public comment period following the release of the proposed NCD and decision memorandum, CMS received 644 comments. Of these 644 comments, 47 were omitted from publication on the CMS website due to excessive personal health information content, and 119 were form letters which contained nearly identical suggested changes to the proposed CMS study criteria. The vast majority of the comments received supported CMS coverage of acupuncture for chronic low back pain, and also supported additional research on acupuncture for chronic low back pain in the Medicare population.
Most of the comments supporting coverage of additional research for acupuncture suggested changes to the proposed study criteria, including referring to auxiliary personnel specifically as licensed acupuncturists, modifying the direct supervision requirement, and allowing certification other than NCCAOM. There were a few commenters that did not support CMS coverage of acupuncture, stating, for example, that this therapy is unsupported by research, can cause substantial harm to patients, does not outperform placebo effects and/or is inappropriate to receive public funding in order to further its scientific investigation.
The majority of comments were provided by licensed acupuncturists and other healthcare professionals, as well as commenters that did not specify their titles and/or organizations. There were 39 comments that represented 32 various groups, including professional associations and public benefit organizations. These groups included the American Physical Therapy Association (APTA),
Council of Acupuncture and Oriental Medicine Associations (CAOMA), American Alliance of Acupuncture (AAOA), North Carolina Society for Acupuncture and Asian Medicine, American Association of Nurse Anesthetists (AANA), National Center for Acupuncture Safety and Integrity (NCASI),
California Acupuncture and Traditional Medicine Association (CalATMA), Acupuncture Society of MA, American Specialty Health,
Minnesota Acupuncture Association (MAA),
Acupuncture Society of New York (ASNY)
, Acupuncture Society of Washington, DC (ASDC), Hawaii Acupuncture Association, Connecticut Society of Acupuncturists (CTSA), Acupuncture Association of Colorado, American Association of Neurological Surgeons (AANS), Congress of Neurological Surgeons (CNS), American Chiropractic Association (ACA), America’s Health Insurance Plans (AHIP), University Hospitals Connor Integrative Health Network, U.S. Pain Foundation, National Association of Specialty Health Organization (NASHO), Alliance for Balanced Pain Management (AfBPM), American Academy of Family Physicians (AAFP), American Academy of Physical Medicine & Rehabilitation (AAPM&R), Tivity Health, Northeast Ohio Opioid Consortium, Center for Inquiry (CFI), Medical Device Manufacturers Association (MDMA), Allina Health,
ASA, NCCAOM, and ANF.
Personnel Furnishing Acupuncture and Direct Supervision Comment:
Several commenters requested that CMS remove the term “auxiliary personnel” from the final decision, and instead refer to these providers specifically as “licensed acupuncturists.” Most of these commenters also suggested editing the “direct supervision” requirement to only allow physicians to provide supervision, stating that physician assistants, nurse practitioners/clinical nurse specialists would not be qualified to supervise licensed acupuncturists.
Response: Currently, acupuncturists are not recognized by CMS as Medicare providers, and are not eligible to bill for acupuncture services. It is possible, however, for acupuncturists to provide acupuncture as auxiliary Created on 01/22/2020. Page 24 of 41 personnel “incident to” a physician’s service in certain settings. The incident to regulations requires supervision by a physician or other practitioner.
For further details regarding “incident to” services, we recommend that interested parties consult 42 CFR §§ 410.26 and 410.27
.
We are not able to amend these regulations through the national coverage determination process, however, we will change the specifc reference to “direct supervision” and will substitute “the appropriate level of supervision required by our regulations at 42 CFR §§ 410.26 and 410.27.”
Comment: Several commenters suggested that acupuncture should only be perfomed by licensed acupuncturists and not be physicians, physician assitants, or nurse practitioners/clinical nurse specialists who would not have the specialized training a licensed acupuncturist would have.
Response: The coverage criteria defined in section I of this decision memo states that physician assistants, nurse practitioners/clinical nurse specialists, and auxiliary personnel must have a masters or doctoral level degree in acupuncture or Oriental Medicine from a school accredited by the ACAOM, and language has been added to specify a current, full, active, and unrestricted license to practice acupuncture in a State, Territory, or Commonwealth (i.e. Puerto Rico) of the United States, or District of Columbia. These requirements are consistent either with the requirements of the qualification standards of private payers (which vary as discussed further below) for licensed acupuncturists who treat patients (and also the standards for VA medical centers or the requirements used to identify providers who perform acupuncture paid by the VA in the community). As noted above, licensed acupuncturists cannot directly bill Medicare for services.
