by Anthony M. Palumbo DC, DIBE | 1/25/2017 8:44:29 AM
Could This Happen In NY?
Edited by Gerald Stevens DC, MS, MPH
There is a legal battle which began in 2006 between the Texas Chiropractic Association (TCA) and the Texas Medical Association. This legal battle has challenged the very basis of Chiropractic and what Chiropractors can do in that state.
The NYSCA is carefully monitoring events in Texas. What happens in one state could also affect other states. Our efforts towards scope modernization are extremely important to help us thrive and to protect Chiropractic in New York. Please read the history of this case below to stay informed on what is going on in Texas.
After the Texas Board of Chiropractic Examiners (TBCE) adopted administrative rules in 2006 appropriate for the practice of Chiropractic in Texas, the Texas Medical Association (TMA) filed suit against the TBCE. The lawsuit accused the TBCE of permitting Chiropractors to perform clinical needle electromyography (EMG) and spinal manipulation under anesthesia (MUA), medical practices the TMA considers surgical procedures that are outside of the Chiropractic scope of practice.
The suit against the TBCE also notes, “because the diagnosis of medical conditions is the practice of medicine, the term was carefully and intentionally omitted from the definition of Chiropractic. Section 75.17(d) of the Scope of Practice rule expressly authorizes Chiropractors to diagnose medical conditions and by doing so unlawfully expands the practice of Chiropractic into the practice of medicine”. The most perplexing component of the suit is TMA's claim that Texas law prohibits Chiropractors from diagnosing their patients.
Initial Court Response
Initially, after court hearings, the district court judge ruled that the TBCE rules should be struck down in regard to allowing DCs to diagnose subluxation complexes, and to diagnose conditions beyond the spine and musculoskeletal system for the purpose of referral. The Texas Chiropractic Association (TCA) and the TBCE then appealed. The Court of Appeals argument took place in Austin on Sept 14, 2011. On April 5, 2012, the Third Court of Appeals upheld the validity of the rules adopted by the TBCE in 2006. Namely:
- Permitting Chiropractors to render diagnoses "regarding the biomechanical condition of the spine and musculoskeletal system” and
- Permitting Chiropractors to diagnose subluxation complexes of the spine or musculoskeletal system and the functional or pathological consequences that affect essentially every part of the body.
On June 14, 2013, the Texas Supreme Court denied the petition of the TMA and the Texas Medical Board for additional review of their lawsuit against TBCE and the TCA.
Shortly after the first lawsuit was filed (“TMA-1”, over MUA, EMG and Diagnosis), the TMA filed suit over the TBCE Vestibular-Ocular-Nystagmus Testing (“VONT”) rule, nicknamed “TMA-2.” This case sat dormant while TMA-1 was fought, appealed and fought some more. In 2013, the TMA amended the VONT case, challenging the definition of musculoskeletal and subluxation because of the neural or nerve inclusion. The TMA also raised the issue of diagnosis again. On, August 2, 2016, in a final judgment, Travis County District Court Judge Rhonda Hurley determined that the TBCE’s rules permitting “the authorization for certain Chiropractors to perform “technological Instrumented Vestibular-Ocular-Nystagmus” testing [rule 78.13] exceeds the scope of Chiropractic…and is therefore void.
She also went on to rule that for a Chiropractor to make medical diagnosis and perform other medical procedures exceeds the Chiropractic scope of practice. The court specified that the definitions of “musculoskeletal system” to include “nerves”, “subluxation complex” as a “neuromusculoskeletal condition”, and use of the term “diagnosis” by TBCE in its rules all exceed the scope of chiropractic as defined by the Texas Occupations Code.
On, September. 22, 2016 the Travis County District Court sent a letter to the attorneys in the TMA vs. TBCE (VONT) case outlining this ruling.
What Happens Now?
The TBCE and TCA will request that the judge better define the factual and legal bases for her decision, and then the TBCE and TCA will appeal the decision to the Third Court of Appeals. The TCA admits that this result, while disappointing, was not unexpected. It is but the first step in what they know will be an expensive appeal process as this case winds its way through the Court of Appeals and to the Texas Supreme Court.
Both the TCA and the TMA have indicated that, whatever the outcome of this latest ruling, they have always intended to take this case to the Texas Supreme Court for a final decision. As it stands, the TCA is committed to appealing this decision and assuring that Doctors of Chiropractic possess the same ability to diagnose and treat patients that has always been part of the scope of practice in Texas.
Meanwhile, all Texas DCs were informed that the 2006 TBCE rule will remain in effect until the final decision at the Texas Supreme Court is issued. There should be no change in how DCs analyze, examine or evaluate their patients, nor the manner in which they improve the subluxation complex or treat the biomechanics of the musculoskeletal system. We will see what the future holds.
To support the TCA, please visit their website: www.chirotexas.org.
- Stephane Babcock (2006.10.26). Texas Arm of the AMA Strikes Out at Chiropractic. Retrieved from www.dynamicChiropractic.com
- James Edwards, DC (2013.08.01). Texas diagnosis ruling: the "fat lady" has finally sung. Retrieved from www.dynamicChiropractic.com
- Texas Chiropractic Association (2016.11.03). Court Sides With TMA on Chiropractic Scope of Practice Lawsuit. Retrieved from www.chirotexas.org
- Travis County, TX District Court (2016.10.19). Final Judgement: TMA vs. TBCE. Retrieved from www.texmed.org
- Texas Chiropractic Association (2016.09.27). TMA vs. TBCE (VONT) - A Negative Decision: But the Case is Far From Over! Retrieved from www.chirotexas.org