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The Subluxation Complex Saves Diagnosis for Texas Chiropractors

The Subluxation Complex Saves Diagnosis for Texas Chiropractors

The Chiro.Org Blog


SOURCE:   Dynamic Chiropractic

By James Edwards, DC


On April 5, 2012, the Third Court of Appeals of Texas issued a 58-page opinion in Cause No. 03-10-673-CV – the Texas Board of Chiropractic Examiners (TBCE) and the Texas Chiropractic Association (TCA) vs. the Texas Medical Association (TMA), the Texas Medical Board (TMB) and the State of Texas.

According to an April 6, 2012 communication by the Texas Chiropractic Association [1], the case presented three questions for the court:

1) Are the two TBCE rules that allow chiropractors to make certain “diagnoses” valid?

2) Can chiropractors perform MUA?

3) Can chiropractors perform needle EMG?

Here’s what the Court of Appeals had to say in the matter:

Diagnosis

On the two most important issues presented by the TCA, the Court of Appeals upheld the validity of TBCE’s Rules 75.17(d)(1)(A) and (B) (“the scope of practice rules”). The first rule, 75.17(d)(1)(A), permits chiropractors to render diagnoses “regarding the biomechanical condition of the spine and musculoskeletal system,” and lists six typical diagnostic areas as examples of what is within the scope of practice. At the district court level, Judge Yelenosky had struck down that rule, stating that it created an unlimited authorization to diagnose any disease or condition, which, he said, exceeded chiropractors’ scope of practice.

The Court of Appeals disagreed and reversed Judge Yelenosky’s decision. The court found that the TBCE rule does not exceed the scope of practice because the rule limits chiropractors to making diagnoses of the biomechanical condition of the spine and musculoskeletal system.

The second rule, 75.17(d)(1)(B), permits chiropractors to diagnose subluxation complexes of the spine or musculoskeletal system, and lists three examples of what is within the scope of practice. The Texas Medical Association and Texas Medical Board had challenged that rule, claiming that the rule allowed chiropractors to diagnose neurological conditions, and pathological and neurophysiological consequences that affect the spine and musculoskeletal system. At the district court level, Judge Yelenosky agreed and struck down the rule because he found that it expanded the scope of chiropractic beyond what was allowed in the Chiropractic Act.

Again, the Court of Appeals disagreed with District Court Judge Yelenosky. The appeals court acknowledged that a subluxation complex could have functional or pathological consequences that affect essentially every part of the body. But the court found that the rule itself only allowed chiropractors to render a diagnosis regarding a subluxation complex of the spine or musculoskeletal system. That authority, the appeals court held, was consistent with the Chiropractic Act.

To be candid and based on the statutory language of the Texas Chiropractic Act, I was personally quite surprised that the Court of Appeals upheld diagnosis to the extensive degree it did. In no small measure, that ruling occurred because the term subluxation complex was correctly interpreted as being very broad.

In that regard, it is important to remember that Drs. Cynthia Vaughn and Paul Heikkenen gave compelling testimony at a TBCE hearing about the World Health Organization’s broad definitions, which read as follows: [2]

Subluxation: A lesion or dysfunction in a joint or motion segment in which alignment, movement integrity and/or physiological function are altered, although contact between joint surfaces remains intact. It is essentially a functional entity, which may influence biomechanical and neural integrity.

Subluxation complex (vertebral): A theoretical model and description of the motion segment dysfunction, which incorporates the interaction of pathological changes in nerve, muscle, ligamentous, vascular and connective tissue.

In addition, Drs. Vaughn and Heikkenen furnished the TBCE with the very broad definition of the “subluxation” as adopted by the Association of Chiropractic Colleges, which states:

“A subluxation is a complex of functional and/or structural and/or pathological articular changes that compromise neural integrity and may influence organ system function and general health. [3]

When the Court of Appeals decision was rendered, its definition of the “subluxation complex” was even broader and read as follows (with emphasis added):

“TBCE’s unchallenged definition of “subluxation complex” establishes that it is a neuromusculoskeletal 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 these articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them.” [4]

Did you note the word establishes? To me, that means the court’s stated definition is now the Texas definition of the “subluxation complex.” And when you combine the two “neuro” references in the definition with “other body systems,” it is broad indeed.

So, the next time one of your colleagues challenges the existence of the “subluxation complex” and pontificates that the terminology is outdated and should be abandoned, remind them that the “subluxation complex” saved diagnosis in Texas!


Manipulation Under Anesthesia

The Court of Appeals found that MUA is outside the scope of chiropractic on the basis that the Chiropractic Act bans procedures listed in the surgery section of the CPT codebook, and the court found that MUA is in the surgery section of the CPT codebook. TCA had argued that “chiropractic MUA” is actually in the chiropractic-specific section of the CPT codebook, not the surgery section, but this argument was undermined when TBCE agreed with TMA and TMB that the surgery section covers chiropractic MUA.

The Chiropractic Act also prohibits the TBCE from certifying chiropractors in MUA, and TCA and TBCE argued that this provision implies that chiropractors can perform MUA without certification. But the court believed that prohibiting certification could have been the legislature’s way of stopping the board from finding that a DC had met the requirements to perform MUA.

There is a silver lining to the court’s opinion. The court found that only procedures listed in the 2004 version of the CPT codebook are banned surgeries. That means any subsequent changes to the CPT cannot change the scope of surgery and thus the scope of chiropractic. So, the AMA cannot attempt to whittle away at the scope of chiropractic by changing the CPT codebook. The damage is contained.

Needle EMG

The Court of Appeals struck down the TBCE’s needle EMG rules. The court found that chiropractors cannot make “incisions,” and that the technical meaning of an “incision” is a “cut.” The court then looked to TMA’s evidence, which included testimony that some needles used in needle EMG have a beveled edge designed to cut tissue. The Court of Appeals found that the use of these needles would be “incisive” and thus banned. Because the rules allowed chiropractors to perform needle EMG with these kinds of needles, the court found that the rules were too broad and violated the statutory ban on incisions.

However, the Court of Appeals made its ruling very narrowly. For that reason, the TBCE may be able to adopt a new rule authorizing some forms of needle EMG because the opinion acknowledges that needle EMG can be performed without using beveled-edge needles. Although the court didn’t come out and say it, the opinion leaves open the possibility that a more narrowly-crafted rule would be legally permitted, as long as DCs are limited to using non-beveled-edge needles.

Here’s the bottom line. While MUA was lost, diagnosis was saved and certain types of needle EMG procedures may be authorized. All in all, it was a great day for Texas doctors of chiropractic … and a very bad day for the Texas Medical Association and the Texas Medical Board.


To put this all in historical context, refer to this long series of articles on this topic:

Is “Expanded Practice” our Pandora’s Box?
Chiro.Org Blog ~ September 13th, 2011

Point/Counterpoint: Seeking A Second Opinion on Expanded Chiropractic Practice
Chiro.Org Blog ~ June 5th, 2011

Best for the Profession or Best for the Public?
Chiro.Org Blog ~ June 5th, 2011

Are Chiropractors Protecting Patients From Medical Care?
Chiro.Org Blog ~ May 23, 2011

The Evidence-based Rap, or What’s Wrong With My Pain Meds?
Chiro.Org Blog ~ April 23, 2011

Just In Case You Don’t Believe Me…
Chiro.Org Blog ~ April 12, 2011

New Podcast Interview: Two College Presidents Discuss Prescription Rights for Chiropractors
Chiro.Org Blog ~ March 31st, 2011

For Those Who Wish To Be Medical Chiropractors — Look, Before You Leap
Chiro.Org Blog ~ March 13th, 2011

Majority of Alabama Chiropractors Favor Limited Prescription Rights
Chiro.Org Blog ~ February 18th, 2011

UPDATE: Texas Judge Finally Rules on Diagnosis Issue
Chiro.Org Blog ~ September 14, 2010

AMA’s “Contain and Eliminate” Tactics Are Alive and Well
Chiro.Org Blog ~ July 15th, 2010

A Constitutional Challenge to DCs Diagnosing – What This Means for Health Care
Chiro.Org Blog ~ April 27th, 2010

Live and Let Live?
Chiro.Org Blog ~ March 24th, 2010

Organized Medicine Attempts To Deny Chiropractors Right To Diagnose in Texas
Chiro.Org Blog ~ February 4th, 2010


References:

  1. “TCA Victory in the Third Court of Appeals.” Texas Chiropractic Association e-mail communication, April 9, 2012.
  2. World Health Organization. WHO Guidelines on Basic Training and Safety in Chiropractic, Geneva, 2005.
  3. Association of Chiropractic Colleges’ Bylaws: The Chiropractic Paradigm.
  4. Texas Court of Appeals, Third District, at Austin, Cause No. 03-10-673-CV. April 5, 2012, page 57

10 comments to The Subluxation Complex Saves Diagnosis for Texas Chiropractors

  • Congratulations and thanks to the TCA and the TCBE! Great work!

  • shouldnt everything be subluxation based?

  • Nick Karapasas

    Marco: no… not at all. If one happens to choose to practice as a subluxation based practitioner, then that would make sense. Most of the profession does not, however, only look to subluxation without diagnosis and treatment in the modern sense.

    Many excellent DCs were undercut by the move by the TMA… and the win (more accurately a “save”) only marginally restored DCs rights.

    • Hi Nick

      When you say “Most of the profession does not”, where does that statistic come from? I’ve never seen that in my long crawl thru the literature.

      You are right: Texas DCs have been restricted, but then again, their State statute never actually gave them the right to pierce skin to do needle EMG in the first place. So in some respects, they brought this upon themselves.

      For those of you who dream of an expanded-practice future (and I seriously doubt they are any where near the majority), your best bet is to start with State legislators to rewrite (and expand) your Practice Act. Once that’s done, outsiders from minority groups can’t stop you.

      Meanwhile, review the long list of previous articles on this topic if you are not fully up-to-speed on this topic.

  • Nick Karapasas

    Exactly why this was not only not a win, but a warning to the rest of the nation concerning the wording of our laws.

    It isn’t as simple as trying to make it about a divide between traditional DCs an progressive DCs.

    This has to do with forces outside of the chiropractic profession using our own wording to restrict and control chiropractors. It is incumbent on us to make changes to protect the profession as a whole proactively.

    The idea that the statute didn’t give them permission speaks to the same point… and how nEMG was lost because of the bevel of the needle. MUA was lost because it was in a “surgical theatre”…

    As you know, I am up to speed on a number of topics, including this one.

    The debate about “who is in the majority” still needs to be hashed out… every study and poll that tries to clarify the point is unabashedly dismissed by those who don’t agree.

    That being said, the majority of the profession DOES diagnose and treat their patients… not to the exclusion of the classical “subluxation”… but usually including it IN the list of clinical diagnoses. Is that really disputed?

    • Hi Nick

      You state:

      every study and poll that tries to clarify the point is unabashedly dismissed

      That’s what I was asking you about…the name of those articles, and where they were published.

      I agree, that this is a HUGE wake-up call. Because Organized Medicine has so effectively marginalized us, they didn’t agonize (too much at least) about our State laws. It almost bordered on a cease-fire, although we all know that the regular issuing of bogus “chiropractors cause strokes” articles puts that lie to the test. There has always been, and (probably) always will be a medical movement to crush our profession, through any means possible.

      These individuals who started providing needle EMGs, and now want prescription rights are about to BURY US, because all HELL is going to break loose.

      The discussion is NOT about whether DCs could or should do these things. State law prescribes what a DC can do, not the AMA. It’s immaterial whether it’s “philosophically pure” or not.

      Although prescription “rights” may alienate a few “conservative” DCs, it will TOTALLY OUTRAGE AND EMBOLDEN the AMA and their State Lackeys. There’s the rub!!!

      That is why I am against it.

      A trained DC will be, neither any better, nor any worse than an MD, when they prescribe anti-inflammatory drugs.

      The literature is pretty clear on this…BOTH of them are stupid for recommending a drug that has such abysmal side-effects and risks, like NSAIDs have. I’d be happy to provide citations to support that comment, if you aren’t already aware of them.

      I’m also ashamed that any DC, who had (relatively) the same training as I got, would refer to themselves as “progressive” because they want the “right” to prescribe them.

      What they are really hungry for is market share, and by so doing this, they will RAIN DOWN HELL on the rest of us, when the AMA finally comes a-calling.

      My Grandpa would say that these individuals werepenny wise and pound foolish“.

      Finally, the title of this article is tongue in cheek. It’s NEVER a victory to be dragged into Court, but the Progressives better grow some serious skin my friend, because their going to be spending a lot of time (and money) fighting more pointless battles. I strongly recommend they don’t bother calling me for contributions.

  • Nick Karapasas

    That might be the case, if it hadn’t already been happening for quite a number of years without issue.

    The issue wasn’t people trying to push the envelope, and subsequently instigating a response. It was the TMA attacking DCs for everything from diagnosing ANYTHING (including musculoskeletal disorders) to things like MUA and needle EMG using archaic language.

    The challenges are coming, not because of some theoretical vanguard who “started providing needle EMGs, and now want prescription rights”… but, because we were providing services that were well within the established rights and scope within the state without changing archaic scope language.

    The arguments given for not changing that language (from within the profession) are exactly the ones you are using… that we will, essentially, upset the AMA.

    Our practice acts, nationally, are archaic. There are states which only list “x-ray” in terms of diagnostic imaging… and if an anti-chiropractic group wanted to try to restrict our ability to order advanced imaging, they would have legal standing to do so.

    You keep bringing up the drug issue… even though this case (and my subsequent commentary) have nothing to do with it. I really don’t know why this extends to prescription rights… or even the assumption that the modern DC education is the same as it was 20 or more years ago.

    I don’t know of any proposal that suggests that a DC should just “get” Rx authority without substantial additional training.
    (As a side note, I had 120+ hours of pharmacology in my pre-doctoral training, and I still don’t believe that I should just “have” Rx authority. Then again, I don’t believe many DCs have enough clinical exposure to MSK disorders or even adjusting real patients before graduation… so I am a little more stringent than most.)

    The problem is not that MDs don’t want anyone to have Rx authority… there are nearly a dozen license types that have Rx authority on some level or another, and even more that can execute standing orders. The issue is that they can pursue groups that they feel don’t have appropriate training or scope… and therefore may be a risk to public health.

    This was not a “progressive” issue… this was an attack on the entire profession using archaic language within a practice act to attempt to disable the profession as a whole.
    To suggest that MUA and electromyography was “progressive” would be like saying that having a cell phone and an email account was “newfangled.”

    As far as asking me for studies… are you saying that you don’t believe that most DCs “diagnose”? You have a list of ICD9 codes on this website… I am confused why you would disagree with the assertion that the majority of the profession doesn’t just say “subluxation” and ignore relevant modern diagnostics.

    • Hi Nick

      Thoughtfully written.

      I agree that what happened in Texas was the “TMA attacking DCs for everything from diagnosing ANYTHING“, but by their own statements, it was MUA and needle EMG that got their ball rolling.

      It’s no surprise they would try to use the antiquated terminology in our Practice Acts, but those laws initially adopted those terms (analyze vs. diagnose) BECAUSE of medical harassment, and as a way to distinguish the chiropractic approach from the medical approach. And, it worked.

      Are we due to re-write those laws? Of course. And to do that, DCs will have to spend money, and focus their efforts on State Legislatures to make that happen.

      I am viscerally against the idea of limited prescription rights because it’s the practice of medicine, AND because it’s not chiropractic. Worse yet, it is a distraction from strengthening State Practice Acts, and will become a lightning rod for more unnecessary battles with the AMA.

      You even said: “I don’t believe many DCs have enough clinical exposure to MSK disorders or even adjusting real patients before graduation.” I beg to differ. Yes, we are trapped within out school clinics, and do not have access to the diversity of patients that enter hospitals daily because of how Medicine hamstrung us.

      It’s not that our education isn’t excellent. We just just don’t have access to diversity. Hopefully that will change, if DCs ever get a chance to intern in Hospitals. It would make sense, and could save a LOT of money in the long run. See the following for WHY.

      Pren Manga, in his Aug. 1993 report to the Ontario Ministry of Health stated:


      Musculoskeletal disorders and injuries are the second and third most costly categories of health problems in economic burden of illness studies. Musculoskeletal disorders are also among the most important reasons for activity limitations and short-term disability. They rank first in prevalence in chronic health problems and first as a cause of long-term disability.


      There would be highly significant cost savings if more management of LBP was transferred from medical physicians to chiropractors. Evidence from Canada and other countries suggests potential savings of many hundreds of millions annually.


      Chiropractors should be employed by tertiary hospitals in Ontario. Hospitals already employ chiropractic in the United States with good effect. Similar recommendations have been made recently by government inquiries in Australia and Sweden, and following government funded research in the U.K. and other countries.


      A very good case can be made for making chiropractors the gatekeepers for management of low-back pain in the Workers’ Compensation System in Ontario.


      If you want prescription rights, that is your right. I agree with your observation that: “The issue is that they (MDs or the AMA) can pursue groups that they feel don’t have appropriate training or scope… and therefore may be a risk to public health.I feel the same way about anyone taking weekend classes in manipulation.

      It appears you are confused about what I asked you: You stated: “The debate about “who is in the majority” still needs to be hashed out… every study and poll that tries to clarify the point is unabashedly dismissed by those who don’t agree. ” THAT is what I asked citations for. Every Progressive likes to claim they are in the Majority. Prove it. Show me.

  • Nick Karapasas

    Again… you keep going back to Rx authority. This discussion STILL has nothing to do with Rx authority.

    But, that is part of the problem. DCs are obsessed with the issue… they see the pink elephant in the room, even when it’s not there.

    To my knowledge… no one has suggested that DCs should just “have” Rx authority.

    New Mexico has suggested a MS degree, on top of the DC degree… with hundreds of hours of clinical rotations AND supervised authority after that for a year.

    Concerning my opinion about clinical experience and expertise: you don’t seem to differ. You agree, but couch it as a conflict.
    In some senses, medicine has hamstrung us. In others, we have done it to ourselves and continue to do so.

    And again… read what I wrote:

    I never said anything about progressives and majorities.

    I differentiated those that think that the only thing a DC should do is detect and correct subluxation, and those who do differentially diagnose within their practice.

    Most DCs DO differentially diagnose, and all were trained to do so.

    How is this a “progressive” issue?

    I also said, which you just quoted, “The debate about “who is in the majority” still needs to be hashed out… every study and poll that tries to clarify the point is unabashedly dismissed by those who don’t agree.”

    That is not a “my team vs. your team” statement… that is an acknowledgement that despite what everyone likes to think, every time data is presented, there is some group that cheers, and some group that jeers.

    There have been polls… and some small studies… but, nothing concrete enough to end the debate of progressive vs. centrist vs. conservative vs. evangelical. That has been going on since the BJ and DD feuds. You can look at the Dynamic Chiropractic polls… they tend to be split down the middle.

    I understand that you have a visceral reaction to certain things being discussed within the profession. Many do… the point is to get beyond the visceral responses and move toward educated ones.
    It may end up that the educated response supports your fears and concerns, however… we need to get beyond that.

    • Hi Nick

      Yes, I always go back to the Rx issue, because that (I believe) will be lightning rod for continued attacks on our Profession by you-know-who.

      And since many of your comments appear to be similar to ones made by the Progressives, or Extended Pracitioners (specifically about subluxation), excuse me if I have mistakenly identified you as one of “them”. It IS possible that you could be interested in the topic, but have no strong strong desire to see it happen.

      So, let me ask you: Are you in favor of DCs getting Rx privileges?

      If so, why?

      My opinion is that it’s a bad idea, but mainly because it will draw fire, and to a lesser extent because of the iatrogenic downside.


      I thought this was interesting: “Concerning my opinion about clinical experience and expertise: you don’t seem to differ. You agree, but couch it as a conflict. In some senses, medicine has hamstrung us. In others, we have done it to ourselves and continue to do so.

      Tell me more. I became a DC in 1993, so the Wilk decision, and to a lesser extent the New Zealand Report, color my thinking about Organized Medicine and their long history against us.

      I am curious how or why you feel “we” have contributed to the situation.


      I’m not sure what you mean by this: “I differentiated those that think that the only thing a DC should do is detect and correct subluxation, and those who do differentially diagnose within their practice.

      We all learned pathology, and the logic of differential diagnosis, as a primary component of our education. Even so, the average DC does not usually use ICD codes to identify a patients primary complaints as diabetes, or cancer. I may treat a patient who has diabetes, but when I adjust their spine, it is because they are subluxated (or have a “manipulable lesion”, or whatever you choose to call it). Even if I inquire about their diet, and make some recommendations, I am not really “treating” them for diabetes, in the usual medical sense of the word… we have a more holistic approach.


      “Us vs. them” aside, you stated that there is some literature out there (your words were: “every study and poll“), and all I am asking is that you share those with me.


      I did NOT say I had “a visceral reaction to certain things being discussed“, I said that “I am viscerally against the idea of limited prescription rights” and clearly spelled out my reasons.


      Finally, I want to thank you for participating in this discussion. We all stand to benefit from improving our understanding of each other.

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