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

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

The Chiro.Org Blog


SOURCE:   ProviderLaw.Com

By Keith Pendleton, JD

President of ProviderLAW (www.providerlaw.com) and Founder of start-up company Tipology (www.healthcare.tipology.net).
The original article can be found on Tipology’s web site >


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 “ :Source 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 Update to 2004 study shows continued low utilization costs and high patient satisfaction rates,” by 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.

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

  • Amazing that this is still going on!

  • It is scary that they are after the DCs ability to diagnose as it is hard to treat if you can’t diagnose.

  • Dr. Young

    Leave it up to Texas to try and mess up health care, just like they were doing with text books for schools.

  • A very stirring article. Until reading it I believed Chiropractic was making better headway. This is obviously based on market-share and control rather than clinical outcomes and cost! Thanks for shedding appropriate light on a critically important issue for Chiropractors.

  • Patients STILL receive All the benefits of chiropractic care REGARDLESS of ANY diagnosis.

    Chiropractors are licensed as an EXCEPTION to the Medical Practices Act. Our profession has encroached on so many other professions, it’s no wonder that those professions are striking back.

    Our profession had better prepare for this and allow our schools to teach from their own perspectives and NOT merely from the standard CCE template.

  • nene

    Marietta Chiropractor posts:

    >>”Chiropractors are licensed as an EXCEPTION to the Medical Practices Act.”<<

    Can you please elaborate? I have no idea as to what you are claiming here.

  • nene

    Marietta Chiropractor posts:

    >>”Patients STILL receive All the benefits of chiropractic care REGARDLESS of ANY diagnosis.”<<

    "ALL the benefits of chiropractic care……."

    Can you please provide what you consider "Chiropractic care".

  • Backman95

    As a third generation 34 year in practice DC whose grandfather went to jail for “practicing medicine without a license”, who followed the Wilkes suit closely, and who has seen the disdainful state of political health care approaching the market place in the same manner as those who stole trillions from Ameicans in the name of wall street greed and avarice while the nation sat back with a “how do I get my share” attitude it comes as no surprise that we are at this point in the history of the chiroparctic profession.

    As a chiropractic forensic med-legal specialist I have observed the poor quality of chiropractic record keeping, the poor quality of chiropractic decision making regarding patient case management, and the poor quality of inter- and intra-professional consultation work to our disfavor. Thus, we have in fact shot ourselves in the foot, and left a trail of evidence with which any of our detractors can beat the crap out of us! The one thing we can still be thankful for is that Main Street knows the value of what we do. The challenge is how far Main Street will support us once our own screw ups result in Main Street having to pay 100% out of their pocket for our services 100% of the time. Politicians seem to think that the public of Main Street votes on the basis of their wallets, and I can not help but agree. Thus we are faced with a big challenge. While this may seem negative and pessimististic this is what it is and the sooner we all realize it, the sooner we can rise up from our own mistakes and fix them for the benefit of those on Main Street.

  • For years now certain members of our profession has been stepping on toes and trying to get involved in anything that can make a buck. What happened to treating musculoskeletal conditions via manual methods? Is it any wonder this is happening? You don’t see podiatrists performing cervical manipulations, yet chiropractors make orthotics in their offices. Some of the claims made by DCs regarding viceral conditions border on the absurd and have no credible studies to back them up. Such claims are based in either ignorance or greed. In my opinion this would not be happening if we policed ourselves better. A minority of DCs absolutlely have strayed from our scope of practice and the majority chiropractors who are good at what we do, are now in the crosshairs because of it.

  • Dr. Miner,

    The recent backlash against chiropractic seems to have been driven by the small group of DCs who want to attain licensure for prescribing (or unprescribing) drugs. It’s also clear that the PT profession is not comfortable with DCs offering rehabilitative services either, even though we were doing that long before there was a PT profession. Organized Medicine is pushing back against expansion into their territory.

    Could you be more specific about the “claims made by DCs regarding viceral conditions (that) border on the absurd”?

  • Chiropractic is truly unique in that we have the capacity to help so many different people with so many different problems. I’ve always believed that although Chiropractic may not be for everyone it can certainly help everyone in some way or on some level of the health spectrum.

  • nene

    Franks posts:

    “”"”The recent backlash against chiropractic seems to have been driven by the small group of DCs who want to attain licensure for prescribing (or unprescribing) drugs.”"”

    Actually, that is inaccurate. It is neither reactionary, nor “driven by the small group of DCs who want to attain licensure for prescribing (or unprescribing) drugs.”

    This has been in the making for years…since 2006. See here:

    *AMA Scope of Practice Partnership Targets 30 Legislative Efforts of DCs, NDs, LAcs and CPMs in 2009*

    Summary: The American Medical Association has been working in opposition to over 30 state legislative actions of naturopathic physicians, chiropractors, acupuncture and Oriental medicine practitioners and Certified Professional Midwives in 2009. The list of these actions, published here, is part of a broader list of 154 against all non-MD profession which the AMA as part of that guild’s Scope of Practice Partnership campaign (AMA SOPP). The campaign, begun in 2006, is presented by the AMA as a public safety concern, though little evidence has materialized suggesting that this is other than an effort to keep other professions from entering the MDs turf. Here is the complete list of 30, and a link to the broader list of 154.

    http://theintegratorblog.com/site/index.php?option=com_content&task=view&id=590&Itemid=189

    —————————–

    Frank: “”"It’s also clear that the PT profession is not comfortable with DCs offering rehabilitative services either, even though we were doing that long before there was a PT profession.”"”"

    YUP! Conversely, they are, instead, moving into DC turf with mandating DPT, direct access, manipulation, etc. Basically, they are attempting to become DCs. However the AMA is targeting them also. (See in the above cite).

    ————————————-

    Frank: “”" Organized Medicine is pushing back against expansion into their territory.”"”

    I disagree with this statement. We are NOT expanding into their territory. DCs have been diagnosing for decades—->AND—> mindfully recollect,—> In isolation to boot!(per pre-Wilk vs AMA). Their attempts at “isolating, and containing” chiropractic actually made us better at radiography and diagnosis!……they manipulated the system so that we had no one we could refer to/work with! In essence- They created(by default) the excellence DCs have in diagnosis and radiology. YUP!

    Since Wilk, …… and the resultant, and extremely successful integration of DCs into multi-disciplinary clinics, health plan clinics, hospitals, the VA, University Research chairs, …….etc. ……OOOOPS!! They didn’t factor THAT in.

    Now a handful of activist MDs want to take away……… THAT, which we have always had. WHY? We are TOO successful! Their 50yo mission to “contain and eliminate” chiropractic marches on. However, in the internet age, it has a new(and very sinister) face. Why do you ascertain there is such a publicity/internet/activist presence regarding, and attempting to associate, “chiropractic” with “stroke”?

    Please carefully read the cite above. The implications are huge. Get involved!

  • Rick Skala

    We seem to get caught up in our paradigm and lose perspective of the big picture. In the grand scheme of things in America, the AMA despite its public face, and for that matter the face it puts on for its members, is in part not that different from a labor union. Labor unions, which have been responsible for both positive and negative changes in our society, have as their core value one overriding purpose. To advance the interests and thus the benefits to (read economic) its members. Operating in that paradigm it would be arguably counter productive if the AMA were not doing what it is currently doing with its SOPP agenda. Chiropractic is just another hurdle which they want to overcome. Not dissimalar to a labor union exerting its influence to expand into a new industry, thus raising its membership and increasing its revenue and providing its members with the “benefit” of higher wages and more benefits.

    Our problem is not due to the fringe DC (whoever that may be) who in most states has a very broad scope of practice that does not confine the DC to spine only, and is not due to any element of DCs who want to have access to pharmaceuticals in practice. (in fact organized medicine would likely support this effort as it would utlimately play into their agenda as a means of absorbing chiropractic much the same way the osteopaths were absorbed into the fold).

    This is an economic fight over control of health care dollars in an environment where, while on the one hand the total dollars spent increases, and yet the net dollar to the phsycian is declining. This is the type of fight that unions are great at. This is a fight that if we do not recognise it for what it is will only result in our facing the predicament of showing up for a gunfight with only a knife.

    Every national organization in chiropractic, every state organization, and every state board of chiropractic examiners should be diligently preparing for this fight and forming alliances with one agenda, to win this fight. Every chiropractor should be a member of their state association, and be a member of a national association. In a time when for example in California two state associations combined represent less than half of the profession, imagine what would be possible if every DC were a member. Dues income would more than double and budgets for this fight could be created. Multiply that times 50 states and carry on to the national level and we can work together to preserve our identity and keep a seat at the table.

    The time of moaning and groaning about how you cant afford the dues, or how you disagree with one thing or another that the organization does or does not do is about to become the means whereby our enemies exploit our greatest weakness and defeat us.

    In the past we have survived when the “grass roots” of all those folks who we have helped have risen up and spoken out on our behalf, swaying the opinions of decision makers. I fear that such an era may have passed in the current culture and that playing that final trump card may no longer be an option.

  • As a Texas Doctor of Chiropractic for 20 years, I can tell you this push, initiated by Resolution 814 and the founding of SOPP by the AMA is the most serious attack on our profession to date, and is the most serious I can imagine. And, I am from a family of MDs (my greatgrandfather was an MD(GP), grandfather was a Veterinarian (DMV), Uncle was an MD (psychiatrist) and cousin is an MD (pathologist). This attack is deadly serious and aimed at our heart, but as was said earlier, documents easily obtained in public sites on the internet (hint, Google search “audiologist, SOPP”) demonstrate a state by state attack on physical therapists, midwives, pharmacists, optometrists, pharmacists, nurse practitioners, nurse anesthetists,dentists, acupuncturists, homeopaths, nauturopaths, podiatrists, psychologists, and more.
    To paraphrase Franklin, we must all hang together or we shall surely hang separately.

    Bridges must be forged for communication and cooperation along all “allied health professionals” and “alternative health professionals”.

    The AMA seeks to attack the “low hanging fruit” and in Texas, they perceive the Chiropractic Doctors are vulnerable, because they can outspend us, and already stripped us of things like using the word Physician when describing ourselves, taking away handicapped parking permit writing rights, and to them, the coup de grace would be taking away diagnosing rights, and I tend to agree with them on that.

    Spread the word to every health professional you are friends with, every attorney you work with or are friends with, and to ALL patients.
    For more, check out:
    http://stopsopp.health.officelive.com
    http://stopsopp.blogspot.com
    http://stopsopp.wordpress.com
    and more coming.

    john raymond baker,bsc,dc
    and I always agree with the Martin Niemoeller quote.

  • Is the intent of the AMA to destroy these “allied health” professions, including chiropractic OR to limit our scope of practice? I, for one, am a strong proponent of limited scope for chiropractic.

    Which does our profession prefer, no Medicine in chiropractic or no chiropractic?

  • Dr. Frank, I can be more specific about the conditions that some members of our profession claim to treat that make the bullseye just a little bit larger for these anti-chiropractic groups. I’m referring to any of the conditions that can’t be backed up by credible research and I’m sure I’ll offend a few people in the process. Otitis media, infertility, adjusting ilio-cecal valves, enuresis, dysmenorrhea, PMS, the use of foot reflexology etc just to name a few. I’ll never understand the need some feel to treat everything under the sun when we are so good at helping our patients with musculoskeletal problems.

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