A Constitutional Challenge to DCs Diagnosing –
What This Means for Health Care

This section is compiled by Frank M. Painter, D.C.
Send all comments or additions to:    Frankp@chiro.org

FROM:   ProviderLaw.Com

By Keith Pendleton, JD

President of ProviderLAW

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I.   The Lawsuit in Texas

In January, 2006, the American Medical Association (AMA) announced an industry consortium known as the “Scope of Practice Partnership” (SOPP).

The consortium was originally formed by the AMA, along with 6 national medical specialty societies and 6 state medical associations, including the Texas Medical Association (TMA).

As part of its formation, the original members of SOPP agreed that they needed to begin reigning in the scope of practices of various professions, the chiropractic profession included.

Specifically, SOPP members agreed that it was “necessary to concentrate the resources of organized medicine to oppose scope of practice expansions by allied health professionals that threaten the health and safety of the public ... through a wide-range of efforts, including ... judicial advocacy....” (emphasis added).

“Organized medicine?”     Are we talking about a nationwide campaign here?

“Threaten the health and safety of the public?”     Is this really what this is about?

As part of the announcement, organized medicine resolved to challenge the scope of practice of various health care professions in a comprehensive, nationwide, consistent manner, including through use of the courts.

On September 14, 2006, nine months after its formation, SOPP struck.

The Texas Medical Association (TMA) – one of the driving forces behind SOPP – filed suit against the Texas Board of Chiropractic Examiners (TBCE).

In its initial filings, the TMA decided to do more than just challenge two particular procedures being performed by chiropractors in the State of Texas – Needle EMG and Manipulation Under Anesthesia (MUA).

More than that, the TMA resolved to go after the ability of chiropractors to “diagnose” ... and not just based on the wording of the Chiropractic Act in Texas either, but on State Constitutional grounds as well.

In other words, the lawsuit didn’t just seek to prevent the expansion of the scope of practice of chiropractic in Texas. It sought to vastly restrict what chiropractors have been doing in Texas for decades ... and something which the Texas Occupations Code itself seems to support (as discussed below).

The significance of the case to Texas DCs is undisputed. More than that, if successful, the lawsuit could have major ramifications for SOPP – and DCs – operating nationwide. The constitutional challenge to the ability to diagnose, coupled with the backdrop against which this case arose, make this case monumental in its significance.

It’s now 2010. Since filing the lawsuit, the TMA has successfully achieved its aims (so far) on the first two issues. At trial, they successfully removed the ability of chiropractors in Texas to perform Needle EMG and MUA.

The third issue – the ability of DCs to diagnose – is set for trial this coming August 16, 2010.

Here are two quotes that will shed more light on exactly what the TMA is seeking to achieve when it comes to DCs and the ability to diagnose.

“This suit seeks a declaration that specific provisions of the Scope of Practice Rule ... are invalid because they authorize chiropractors to practice medicine by making a ‘diagnosis’ concerning the biomechanical condition of the spine or musculoskeletal system when Tex. Occ. Code § 201.002(b) limits the practice of chiropractic to the use of objective or subjective means to ‘analyze, examine, or evaluate’ conditions.” Plaintiffs’ Fifth Amended Original Petition, filed March 26, 2010.

“[But even if] the Scope of Practice rule as it pertains to ‘diagnosis’ of medical conditions is permitted by Tex. Occ. Code § 201.022, [sic] then [this suit seeks a declaration] whether the statute and rule are constitutional under Texas Constitution Article 16 § 31.”

TMA’s Response to TCA’s Motion to Strike Fourth Amended Petition, March 26, 2010.

Again, if successful, the lawsuit could have major ramifications for SOPP – and DCs – operating nationwide. The constitutional challenge to the ability to diagnose, coupled with the backdrop against which this case arose, make this case monumental in its significance.

II. 3 Major Facts When it comes to the TMA’s lawsuit, there are at least 3 major facts that should be kept in mind. There are other major points that can be made, but here are 3 of them.

1. The Vital and Inseparable Link Between Evaluation, Diagnosis, and Care Some might ask – what is so important about diagnosis? Why does it matter whether the ability to diagnose is taken away from DCs? Here’s a quote from Jeff Cronk DC which does more than just explain the importance of diagnosis. For me, it demonstrates the vital and inseparable link that must exist between evaluation, diagnosis, and care, and the absurdity of saying – “you are licensed to perform the first and the last without a prescription from a medical doctor, but not the second.”

“If you are treating the spine, your primary and most powerful objective diagnostic procedure can be ‘functional radiology.’ At its core, functional radiology is what helps you, the provider, accurately and thoroughly understand and diagnose your patients' conditions -- where they currently are -- so you can more effectively get them to where they want to go. Even a GPS needs to know exactly where a person is to get that person to the desired location. Without a GPS, think of how much time we as travelers spend 'lost.' Become every patient's GPS. Accurately and thoroughly diagnosing your patient's condition is the foundation for your course of care. More than that, it is the basis for your CONFIDENCE, which is one of the main things patients are looking for in the first place. Patients deserve nothing less than clinical excellence when it comes to their diagnosis and care. We intend to see that they receive this.”

“Incorporate Functional Radiology Into Your Spine Care Practice," Jeff Cronk, DC, CICE, National Injury Diagnostics, April 23, 2010 (emphasis in the original text).

Diagnosis is at the heart of your care.

Understanding the patient’s condition is at the heart of diagnosis.

“Understanding” leads to “diagnosis” which leads to “care.”

Does it really make sense to split these up and say, “Chiropractors, under the law you can understand and treat without a prescription from a medical doctor, but you can’t diagnose?”

Frankly, the last thing we need in a system already mired in red tape and professional rivalries is for a court to split up evaluation, diagnosis, and care.

2. In Texas, a DC is a “Healing Art Practitioner” and a“Healing Art” Includes “Diagnosis” – Why is This So Important?

Maybe I’m missing something here.

Texas statutes make it clear that in Texas, a chiropractor is a “Healing Art Practitioner.” The statutes then define a “Healing Art” as “any system, treatment, operation, diagnosis, prescription, or practice to ascertain, cure, relieve, adjust, or correct a human disease, injury, or unhealthy or abnormal physical or mental condition.” Texas Occupations Code, Section 104.002 (emphasis added).

A chiropractor in Texas is a Healing Art Practitioner. Healing Art includes diagnosis. Again, am I missing something?

On top of all of that, for years Texas insurance laws (e.g., worker’s compensation) have recognized and paid chiropractors for the act of diagnosing their patients’ care. On top of all of that, you have the vital link between evaluation, diagnosis, and care. This is not an action about containment. It’s about vast restriction by a national coalition.

This is a highly significant case.

3. The Unrefuted and Verifiable Results of a 7-Year Study in Illinois – DCs as Primary Care Providers

Not all chiropractors want to be primary care providers. That’s ok. Not all medical doctors want to be primary care providers either.

But what I’m about to share with you, for me, illustrates just how important it is in any system, not just health care, that new and emerging solutions are identified, explored and tested. I may be wrong about this, but I believe that when the counterpart to this in the human body stops happening, it’s actually the moment when death begins.

For me, the real tragedy that will take place if DCs in Texas lose their ability to diagnose can be found in the following paragraphs.

Starting in 1999, and stemming over a 7-year period of time, a major Illinois HMO participated in a bold study where chiropractors would serve as primary care physicians in its network.

Over the next 7 years, a huge amount of data would be gathered as part of the study.

The results of the study, published in the Journal of Manipulative and Physiological Therapeutics (JMPT) in 2007 are almost mind-boggling. These results are not only verifiable, they remain unrefuted to this day. Here is an exact quote (emphasis added):

“RESULTS: CLINICAL AND COST UTILIZATION BASED ON 70,274 MEMBER-MONTHS OVER A 7-YEAR PERIOD DEMONSTRATED DECREASES OF 60.2% IN-HOSPITAL ADMISSIONS, 59.0% LESS HOSPITAL DAYS, 62.0% LESS OUTPATIENT SURGERIES AND PROCEDURES, AND 85% LESS PHARMACEUTICAL COSTS WHEN COMPARED WITH CONVENTIONAL MEDICINE IPA PERFORMANCE FOR THE SAME HEALTH MAINTENANCE ORGANIZATION PRODUCT IN THE SAME GEOGRAPHY AND TIME FRAME.”

Clinical Utilization and Cost Outcomes from an Integrative Medicine Independent Physician Association: An Additional 3-year Update” Richard L. Sarnat, MD, James Winterstein, DC, Jerrilyn A. Cambron, DC, PhD,
Journal of Manipulative and Physiological Therapeutics, 30(4), May, 2007, at pp. 263–269, republished by Frank M. Painter, D.C. .

The results of this study surprised even those who conducted it.

In 2004, Dynamic Chiropractic interviewed the individuals responsible for the study, Dr. Richard L. Sarnat, MD and James Winterstein, DC, following the publication of their initial research.

Here is what Dr. Sarnat, a medical provider, had to say. I want you to take your time reading it, and really reflect on the significance of what you’re about to read:

"The study really shows the enormous power and benefit of two things: 1) the utilization of chiropractic in a primary care setting; and 2) the magnitude of outcomes, both clinical and cost, that can be achieved when all members of the health sciences work together as a team for the betterment of the patient, putting aside all professional rivalries. Hopefully, these results are so dramatic that they will 'wake up' the health care system (or lack thereof) to the immediate need for true integration among all qualified health care providers.

"I have always believed that the overutilization of pharmaceuticals and surgery, and the underutilization of more natural healing techniques, such as chiropractic, has been the cause of great suffering. Yet, I had no idea that the magnitude of both clinical improvements and cost effectiveness would approach 50% in both cases. Previous studies have shown these types of savings when chiropractic has been used as a first-line treatment for NMS ailments, instead of conventional medical care. But to see this level of effectiveness across the board for literally all types of clinical presentations within a primary care setting is surprising to me, and good news for the rest of the world."

Source: “Chiropractors as Primary Care Providers” an update to 2004 study shows continued low utilization costs and high patient satisfaction rates,b y Meghan Vivo, Associate Editor, Dynamic Chiropractic, Vol. 25, Issue 12, June 4, 2007.

If the TMA lawsuit is to turn into a constitutional battle, it won’t just be about the ability of DCs to diagnose.

It’ll be about the ability of the system to innovate and rejuvenate.

Conclusion

Like millions of other citizens of this country, I’m a chiropractic patient. I’ve been a chiropractic patient since I was in elementary school. It’s what helped me to get through high school and college sports. Today, it’s what enables me, every time the pain in my back becomes unbearable (which oddly seems to happen every time mowing season starts up) to keep playing with our five boys. It’s what makes me want to sit through a Dan Murphy seminar and commit to what I could be doing for their immune systems. When I hear about SOPP and the TMA lawsuit, I have to be honest with you – as a patient, as a parent of five, it makes me think about the ills of our health care system. It makes me think about the health of any system where new solutions are unable to rise to the surface.

But allow me, if I may, to quote Dr. Louis Sportelli on this point. When asked about SOPP years ago (actually, one month before the TMA filed its lawsuit), here is what Dr. Sportelli had to say:

"Today however, the consuming public is keenly aware of the AMA and their tactics. The public recognizes that this trade association receives millions of dollars from drug companies. The AMA has serious credibility issues with their 'patient safety' disguise. Thus the AMA's quest to suppress other health care professions will fail.

"The public has spoken and demanded complementary and alternative approaches because of the often failed efforts of traditional allopathic approaches. These AMA efforts will fail like their efforts to contain and eliminate chiropractic.”

“Coalition Opposing the AMA SOPP Sets Next Steps at August 15 Meeting,” by JohnWeeks, The Integrator Blog, August 30, 2006

As a patient and a parent, this is certainly how it comes across to me.

What the public wants... what the health care system needs..., what Texas statutes state..., what the Illinois study shows..., what the experience of millions of Americans is...

... may the courts in Texas now find.

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