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The CAM Docket: Texas MDs v. DCs

In April, the Texas District Court of Appeals (Third District) affirmed a lower court ruling that chiropractors are prohibited from performing manipulation under anesthesia and needle electromyography[EMG]. The lower court also ruled that the Texas Board of Chiropractic Examiners exceeded its authority in defining the chiropractic scope of practice to include “diagnosis.” This part of the ruling was overturned by the Court of Appeals, but with some interesting language in the opinion which could turn their one win into a Pyrrhic victory for Texas chiropractors.  In a separate ruling, not on appeal, a lower court held that vestibular testing is outside the scope of chiropractic practice.

First, some background. Back in 1949, the Texas Legislature defined the scope of chiropractic practice as, among other things, “the practice of adjusting the vertebrae to correct any subluxation or misalignment thereof . . .” Over the ensuing years, the legislature amended the chiropractic practice act with an eye toward modernization, resulting in the current scope of practice being “nonsurgical, nonincisive procedures, including, but not limited to, adjustment and manipulation, in order to improve the subluxation complex or the biomechanics of the musculoskeletal system.” Now that’s progress!

Playing by the rules

Texas chiropractors are regulated by the Texas Board of Chiropractic Examiners [TBCE]. Normally, a regulatory body like the TBCE issues rules through a formalized procedure which gives stakeholders a voice in the rulemaking process. Once a rule is enacted, those adversely affected by it can challenge the rule in an administrative proceeding or in court. However, the TBCE for years avoided this process by relying instead on informal “statements” or “memoranda.” The effect of this was to prevent anyone from challenging the TBCE’s interpretation of chiropractic scope of practice.

In 2005, the Texas Legislature forced the TBCE’s hand by requiring it to adopt rules clarifying what is, and what is not, within the scope of chiropractic practice. In doing so, the TBCE would be limited by the Legislature’s definition of chiropractic but there was wiggle room to interpret the practice act as it saw fit. Requiring the TBCE to go through the normal rulemaking procedures would give any opponents of TBCE’s scope-of-practice delineations the chance to test the rules in court. Thus, the TBCE came to issue rules broadly defining chiropractic scope of practice, including authorizing chiropractors to perform needle electromyography, manipulation under anesthesia and vestibular-ocular-nystagmus testing. The rules also appeared to allow chiropractors expansive authority to “diagnose.”

A little too expansive, according to the Texas Medical Association [TMA] and the Texas Medical Board [TMB]. Because they now had specific rules they could challenge in court, the TMA and TMB (which I will collectively refer to, as the appellate court did, as the “physician parties” or “physicians”) sued the TBCE, along with its Executive Director and the Texas Chiropractic Association (referred to collectively as the “chiropractic parties” or the “chiropractors”). The physicians alleged that the TBCE’s rules were too broad and therefore went beyond the authority granted TBCE by the Texas Legislature. They also argued the rules were unconstitutional, a challenge yet to be ruled upon by the trial court and therefore not a subject of the appellate court’s opinion.

Vestibular testing

In a separate ruling, a Texas district (trial) court struck down the TBCE rule allowing vestibular-ocular-nystagmus testing as beyond chiropractic scope of practice. That decision was not part of this appellate opinion, but we’ll briefly look at it. According to the TMA website, its successful challenge was based on the contention that state law did not allow chiropractors to perform vestibular testing, because:

The vestibular system is a component of the inner ear and communicates with the central nervous system. Tests of vestibular function are diagnostic tests designed to evaluate the function and structure of the inner ear and/or brain, and they include hearing evaluations because the hearing and balance functions of the inner ear are closely related.    . . . The vestibular apparatus is not part of the musculoskeletal system because the muscles that connect the eyes to the skull do not ‘move the body’ or ‘maintain its form.’ . . . Chiropractors are not authorized to diagnose medical conditions, including defects in the vestibular apparatus, because the Chiropractic Act does not include the diagnosis of diseases within the definition of chiropractic. Even if chiropractors can use the word ‘diagnosis’ in a rule, any such diagnosis must be limited to the biomechanical condition of the spine and musculoskeletal system.

The court agreed.

Manipulation under anesthesia

Manipulation under anesthesia (“MUA”or “S[pinal]MUA”) is, according to Quackwatch, a

procedure in which a chiropractor performs manipulation while an anesthesiologist keeps the patient asleep. MUA has little appropriate use and is potentially dangerous. Because the normal protective reflexes are abolished, the manipulated joint can be overstretched.

Here is how the health insurance company Aetna describes chiropractic use of MUA,

Within the realm of chiropractic, SMUA is generally performed daily for 1 to 5 consecutive days on an outpatient basis, and is followed by a post-SMUA rehabilitation regimen, which entails 1 week of daily manipulation to maintain joint mobility and avoid re-adhesion of fibrotic tissue. Anesthesia is usually induced by intravenous Pentothal (sodium thiopental), and manipulation of the affected joints takes about 7 to 10 minutes.

Except in narrowly defined circumstances, Aetna considers MUA investigational and experimental, which translates as “we won’t pay for it.” Of course, in cases where the patient’s health insurer won’t pay, the patient pays the full freight, without discounts normally negotiated by the insurer or mandated by Medicare.

I don’t know how much a full course of chiropractic MUA would set a patient back, but add up the cost of the MUA itself, an anesthesiologist, an outpatient procedure facility equipped and licensed to handle administration of anesthesiology, multiply that by 5, then add 5 more days of in-office chiropractic manipulation, and I can imagine we’re getting into thousands of dollars.

Neither the trial nor the appellate court had much trouble deciding that MUA was outside the scope of chiropractic practice as defined by the Legislature. This is because the Legislature had specifically defined (by incorporating Medicare coding as a guide) MUA as a “surgical” procedure. Because chiropractors are statutorily forbidden from performing surgery, the rule permitting MUA fell.

Needle EMG

Needle electromyography measures the electrical activity of muscles. (This should not be confused with surface electromyography, a bogus diagnostic procedure sometimes used by chiropractors to detect “subluxations.”) A needle electrode attached by wires to a recording machine is inserted into a muscle to record the electrical activity. Needle electromyography is used to determine the cause of weakness, paralysis or muscle twitching and to diagnose diseases that damage muscle tissue or nerves, such as ALS or myasthenia gravis.

The trial court found, and the appellate court agreed, that insertion of certain types of needles used in the EMG met the definition of an “incision.” As chiropractors are prevented by state law from performing “incisive” procedures, the rule permitting their use of needle EMG was declared invalid.

To diagnose, or not to diagnose

The physicians also challenged TBCE rules allowing chiropractors to “diagnose,” a privilege is not specifically included in their practice act, which limits chiropractors to “us[ing] objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body” and “perform[ing] nonsurgical, nonincisive procedures . . . to improve the subluxation complex or the biomechanics of the musculoskeletal system.” One has to wonder how performing surgical or incisive procedures, should chiropractors be allowed them, could “improve the subluxation complex,” as the “subluxation complex” is a figment of the chiropractic imagination. The very thought raises the horrible specter of a chiropractor chopping away in an effort to redact a “subluxation” of, say, the second cervical vertebra.

The physicians won on this issue in the trial court, but lost on appeal. As I suggested earlier, this may be a hollow victory for Texas chiropractors.

TBCE rules challenged by the physician parties included:

Rule 75.17(d) Analysis, Diagnosis, and Other Opinions

(1) In the practice of chiropractic, licensees may render an analysis, diagnosis, or other opinion regarding the findings of examinations and evaluations. Such opinions could include, but are not limited to, the following,

(A) An analysis, diagnosis or other opinion regarding the biomechanical condition of the spine or musculoskeletal system including, but not limited to, the following . . . .

The rule then goes on to list pretty much everything one could possibly think of in the way of looking into “the biomechnical condition of the spine or musculoskeletal system,” including:

(i) the health and integrity of the structures of the system;

(ii) the coordination, balance, efficiency, strength, conditioning and functional health and integrity of the system;

(iii) the existence of structural pathology, functional pathology or other abnormality of the system;

(iv) the nature, severity, complicating factors and effects of said structural pathology, functional pathology, or other abnormality of the system;

(v) the etiology of said structural pathology, functional pathology or other abnormality of the system; and

(vi) the effect of said structural pathology, functional pathology or other abnormality of the system on the health of an individual patient or population of patients.

These references to “structural pathology, functional pathology or other abnormality of the system” are apparently designed to encompass the latest iteration of the “subluxation,” known variously as the spinal lesion, joint dysfunction, manipulable lesion, and many other names. This formulation holds that the chiropractor can feel or otherwise detect something significant in the spine and then proceed to correct this significant something, although they’ve never been quite able to explain how what they say they feel or otherwise detect has anything to do with the patient’s problem. Nor have they been able to explain how what they do to this significant something, such as an “adjustment,” makes any difference to the patient’s health. At least that is what I have gathered from explanations of what they do posted in commentary on SBM. If I’m wrong about this, I’m sure I’ll hear about it.

Diagnose, but with limits

Two factors saved this rule from exceeding the scope of chiropractic practice in the appellate court’s view. First, the TBCE has interpreted the word “diagnosis” as synonymous with “analyze,” “examine,” and “evaluate,” which are within the statutory scope of chiropractic practice. Apparently the court thought this put some sort of limitation on their authority to “diagnose.” In other words, the court appears to be saying that “diagnosis” may have a meaning beyond “analyze,” “examine” or “evaluate” to a physician, but whatever that expanded meaning might entail, as long as chiropractors interpret “diagnosis” in this limited fashion, they are within their rights. This may be a distinction without a difference, but it is one the court makes.

Second, the court dismissed the physicians’ concerns that chiropractors defined terms in the rules so broadly that they could include virtually any disease or condition of any part of the body. Apparently unaware of the full extent of chiropractic claims of the near universal effect of spinal “structural” or “functional” pathology on the human body, the court found, over and over, that the physicians’ concerns should be allayed by the limitation to “biomechanical condition of the spine or musculoskeletal system.” To each argument of the physicians that the rules included an impermissible expansion of chiropractic scope of practice, the court replied, in effect: “No, no, chiropractors are limited to ‘biomechanical condition of the spine or musculoskeletal system.’” In other words, the court seemed to think this term meant the same thing to chiropractors as it means to physicians and other health care professionals.

This may prove problematic for Texas chiropractors attempting to extend their diagnoses beyond the “biomechanical condition of the spine or musculoskeletal system” – as these terms are used in medicine — by employing the chiropractic concept of the “biomedical condition of the spine or musculoskeletal system,” that is, to the subluxation or any of its current iterations.

In arguing that the rules permitted an overly broad scope of practice, the physicians pointed to the definition of the “subluxation complex” contained therein:

[A] neuromusculosketal condition that involves an aberrant relationship between two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in the biomechanical and/or neuro-physiological relations of the articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them.

Of course, this is gibberish and most chiropractors well know it is gibberish but refuse to do anything about it, such as, say, letting the state legislatures in on this open secret. That would mean the states would have to redefine chiropractic practice to exclude the “detection” and “correction” of the non-existent “subluxation.”

In any event, the physician’s concern was that in using words like “pathology” and “etiology” the rules employed terminology that referenced the disease process. Because the diagnosis of disease was legally beyond the scope of chiropractic practice, they argued, the rules were invalid. The court disagreed, saying that their argument

presumes that ‘disease’ would extend beyond the biomechanical condition of the spine or musculoskeletal system of the body. This construction, as previously suggested, ignores the plain language of the rule restricting any such diagnosis to the biomechanical condition of the spine or musculoskeletal system. . . .

[R]egardless of whether diagnosis, pathology, or etiology invoke concepts of disease as the Physician Parties suggest, the bottom line is that [the rule] limits chiropractors to diagnoses regarding ‘the biomechanical condition of the spine and musculoskeletal system’ as required by the statutory scope of chiropractic.

The physicians also worried that the rule allowed chiropractors to

diagnose any diseases (pathology) that relate to the biomechanical condition of the spine and musculoskeletal system (redefined [by chiropractors] to include nerves and other tissues), determine their origins (etiology) and provide a prognosis on the disease’s effect.

The court specifically rejected this interpretation as too broad, once again citing the limitation of chiropractic practice to the biomechanical condition of the spine and musculoskeletal system.

Did the Court of Appeals adjust the subluxation?

This apparent limitation becomes even more clear in the court’s discussion of the “subluxation complex,” for which it accepted the TBCE’s definition, repeated here:

[A] neuromusculosketal condition that involves an aberrant relationship between two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in the biomechanical and/or neuro-physiological reflections of the articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them.

[BTW, if anyone can tell me what this means, I would appreciate it. I once asked a friend who is a Ph.D neuroscientist specializing in the spine. He said it was “nonsense” but perhaps there are other views out there.]

The physicians argued that the rule’s subluxation definition would allow chiropractors to diagnose a broad range of “neurological conditions, pathological and neuro-physiological consequences that affect the spine and musculoskeletal system and ‘other body systems’ affected by subluxation.”

In what I view as an interesting limitation on the broad sweep of the chiropractic “subluxation,” the court disagreed that the inclusion of this definition of “subluxation” somehow expanded the scope of practice.

Although the definition of the ‘subluxation complex’ indicates that its existence may have functional or pathological consequences or that it may affect essentially every part of the body, the rule itself only allows chiropractors to render an analysis, diagnosis, or other opinion regarding a subluxation complex of the spine or musculoskeletal system.

To me, this says that a Texas chiropractor diagnosing the existence of a “subluxation” and then rendering an opinion that an “adjustment” of the “subluxation” may have consequences beyond the (once again) “biomechanical condition of the spine or musculoskeletal system” would be outside of his scope of practice. This would prohibit, in my view, a number of current chiropractic practices, such as opining that “adjustments” can be beneficial to asthma, allergies, painful periods, infant colic, bedwetting, otitis media, and any of the myriad other diseases and conditions chiropractors claim to treat. (Oh, wait, they don’t “treat” anything. They simply unleash the body’s self-healing ability.) It would also prohibit “maintenance” care, that is, regular “spinal checkups” and “adjustments” for general health, to the extent these claims extended beyond benefit to the “biomechanical condition of the spine or musculoskeletal system.”

The physicians and chiropractors have not announced whether they will appeal to the Texas Supreme Court. The physicians will have another shot when the district court decides whether the rules allowing chiropractic diagnosis are unconstitutional. Stay tuned.

Posted in: Chiropractic, Legal, Politics and Regulation

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