On January 18, 2017 the SDRC and two chiropractic U.S. Department of Transportation (DOT) Certified Medical Examiners (CME) in New York filed an Article 78 against the NYS Commissioner of Education, the NYS Board of Regents, the Executive Secretary of the NYS Board for Chiropractic and the Deputy Commissioner of Education, NYS Office of the Professions over an ostensible change in Department policy that, petitioners claim, “illegally revoked and overturned decades of state policy allowing doctors of chiropractic to perform DOT exams.” Petitioners claim that the Education Department and Board for Chiropractic changed a state policy in an arbitrary and capricious manner without legal authority; without following proper rulemaking procedures and regulations; in flagrant violation of petitioners’ constitutional rights to due process of law, and without any statutory basis in law to make such a determination.
David A. Thorpe, DC, DACBOH, CME, spokesperson and president of the SDSRC alleges in its petition that “chiropractors have been performing DOT physical exams legally in New York since the early 1990's without challenge or issue.” In fact, he claims, in response to an inquiry made to the Federation of Chiropractic Licensing Boards (FCLB) on behalf of the Federal Motor Carrier Safety Administration (FMCSA) in 2005, “the State Board approved chiropractors’ ability to perform a DOT physical in New York." As a consequence, New York DCs who had taken the requisite training dictated by the FMCSA regulations had been listed on the FMCSA’s National Registry of Certified Medical Examiners since 2014.
Indeed, chiropractors can be found among the list of health care professionals in Federal regulations that have the ability to perform DOT examinations of commercial motor vehicle drivers, provided, in an important caveat, they are permitted by applicable state laws, rules and regulations to do so. Title 49, Part 390—Federal Motor Carrier Safety Regulations; General, Subpart D—National Registry of Certified Medical Examiners, stipulates:
§ 390.103 – “Eligibility requirements for medical examiner certification” directs as follows:
- To receive medical examiner certification from FMCSA a person must:
- Be licensed, certified, or registered in accordance with applicable State laws and regulations to perform physical examinations. The applicant must be an advanced practice nurse, doctor of chiropractic, doctor of medicine, doctor of osteopathy, physician assistant, or other medical professional authorized by applicable State laws and regulations to perform physical examinations.
- Complete a training program that meets the requirements of § 390.105.
- Pass the medical examiner certification test provided by FMCSA and administered by a testing organization that meets the requirements of § 390.107 and that has electronically forwarded to FMCSA the applicant's completed test and application information no more than three years after completion of the training program required by paragraph (a)(2) of this section. An applicant must not take the test more than once every 30 days.
Additionally, Thorpe indicates, “Title 17 of NYS Department of Transportation regulations indicate at part 820.1(a) that “The Commissioner of Transportation [in New York] adopts part 390 of title 49 of the Code of Federal Regulations (CFR) with the same force and effect as though herein fully set forth at length for those motor carriers operating commercial motor vehicles in commerce.” Thorpe contends, this means that New York has implicitly adopted the FMCSA regulations, including those provisions that indicate that chiropractors have the ability of performing DOT examinations of commercial drivers in New York. Ironically, the SDSRC President alleges, qualified DCs performed nearly 30,000 DOT physical examinations of commercial drivers in New York without issue – and all of the examinations were accepted by the FMCSA and the NYS Department of Transportation through June of 2016.
In April 2014, however, according to SDSRC’s petition, the FMCSA sent a letter to the Executive Secretary of the NYS Board for Chiropractic informing the Board that a NY DC had applied to be listed on the FMCSA National Registry. As a consequence, the FMCSA asked:
“Does the scope of practice for a chiropractor permit him/her to conduct the testing and physical examination of body systems required on the enclosed Medical Examination Report, determine whether the driver is physically qualified to drive a CMV [commercial motor vehicle] in interstate commerce, and complete the Medical Examiner’s Certificate?”
Less than a month later, the Executive Secretary of the State Board allegedly responded, in relevant part:
“We are unable to fully answer your question as we are unable to determine specifically what is required of a certified medical examiner . . . Much of the assessment on the commercial driving application also appears to be self-assessment and verification. If all that is required of the health care practitioner is verification of an applicant’s self-assessment, this would appear to be a review of health history and may not be restricted. If, however, your requirement is that the evaluating professional must be able to diagnose and/or treat all of the areas that are subject of your assessment, then it would appear that the NY chiropractic scope is prohibitive.”
On further reflection, however, it appears that the State Education Department concluded that chiropractors did not have the legal authority to perform a DOT examination under the scope of New York’s current chiropractic enabling statute. A September 2015 letter the Board for Chiropractic sent to New York DCs listed on the FMCSA registry warned:
“This letter is being sent to you because you are listed as a Certified Medical Examiner under the federal registry to perform DOT exams. After lengthy discussions with the New York State Education Department, the New York State Board for Chiropractic has been informed that under our present scope of practice, Doctors of Chiropractic in New York are NOT allowed to perform DOT examinations. (Emphasis added.)
“The basis for this decision is based solely on scope and not competency. The decision focuses around the exam itself. It has been interpreted, by the state, that any examination performed by a chiropractor in New York is predicated on finding and correcting subluxations. Although chiropractors in New York are trained to perform a complete physical examination, our ability to examine and diagnose in New York is limited to detecting and correcting subluxations. As there are many areas to a DOT exam, it is felt that the DOT exam does beyond the scope of chiropractic in New York. Further, even if you have been credentialed through programs that teach the DOT exam process, this does not change the defined scope of practice in New York (Emphasis added.).
“Chiropractors who are currently performing DOT examinations in New York ARE PRACTICING OUT OF SCOPE AND ARE AT RISK. As a rule, malpractice carriers generally do not cover procedures that are performed outside of your scope. Changing the scope in New York would need to be done legislatively.
New York State Board for Chiropractic
Making matters worse, on or about June 1, 2016 the FMCSA notified New York DCs on the National Registry that the agency was going to delist them as a consequence of the State Board notification.
RE: NEW YORK CHIROPRACTOR REMOVAL FROM THE NATIONAL REGISTRY
To Whom It May Concern:
The Federal Motor Carrier Safety Administration (FMCSA) was recently notified by the New York State Education Department, State Board for Chiropractic that under their present scope of practice, Doctors of Chiropractic in New York are not authorized to perform DOT physical examinations required to determine and certify the physical qualifications of commercial motor vehicle (CMV) drivers. The State Board for Chiropractic has notified Chiropractors listed on the National Registry of Certified Medical Examiners (National Registry) that the DOT examination for CMV operators is beyond the scope of chiropractic practice as defined under New York State law.
On June 1, 2016, FMCSA notified all chiropractors licensed in New York that they are removed from the National Registry, effective immediately. Medical Examiner certificates issued by New York State licensed chiropractors through June 1, 2016, while they were listed on the National Registry, will remain valid until their expiration date.
The irony here, of course, is that the FMCSA was honoring the DOT examinations performed by NY DCs prior to June 1, 2016 in spite of the fact that the federal agency had been notified by the State Education Department, State Board for Chiropractic that DCs in NY were not authorized to perform the DOT exams. Plaintiff SDSRC and its DC cohort contend that qualified DCs in New York were “irreparably harmed” by the State Board for Chiropractic’s “willful violation of State law, including its violation of the state’s Administrative Procedure Act” and that the Board’s actions were illegal and without authority.
In their Verified Petition, the SDSRC plaintiffs seek:
SDSRC’s Thorpe claims that, “if successful, the effects [of the SDSRC action against the State Education Department] could be more far reaching than simply being able to perform a DOT exam in New York. It may have an effect on our ability to provide other competitive services within the State and modernize our scope and expand our role in health care in New York.”
But should SDSRC be granted the requested injunction, Thorpe warned, “we will still need to follow through with our challenge.” SED would likely appeal and “the merits of our arguments will have to be defended,” Thorpe added. Indeed, as of this writing the NYS Attorney General has not entered an answer to the SDSRC petition.
Thorpe asked field doctors to “donate to the cause. Any amount is appreciated,” Thorpe said hopefully. If successful, “the benefits to the individual DC and the professional will be manifold and a small donation of $100 can go a long way in securing our future in New York State.
DCs interested in donating to the SDSRC campaign can visit the SDSRC website www.safe-drc.org. In addition, the SDSRC has assembled a petition to be presented to the Governor’s office seeking the Governor’s support of the SDSRC effort. The petition can be accessed at the SDSRC website. And to cap its legal fundraising effort, the SDSRC is planning on conducting a sweepstakes that will provide donors with a chance to win a dream vacation in sunny southern Florida. Sweepstakes details are accessible at the SDSRC website as well.
In closing, Thorpe said “It is time for DCs in New York to become more aware of efforts like these to expand the practice rights and privileges of chiropractors everywhere in New York state. It is time for all DCs in New York to participate and support these efforts moving forward. Any help you can give is deeply appreciated.”