Texas Chiropractic Association Texas Journal of Chiropractic Volume XXV, Issue 2 March/April 2011 TBCE NOW: Requires Eight Hours of Medicare CE; Restricts Prepaid Contracts for Multiple Treatments Proposes More Rules Changes and Sanctions TMA v. TBCE (II)--NEW Lawsuit Filed by Medical Profession Texas Court Reverses Decision on Vertebral Artery Dissection Governor Seeks Agency Consolidations Congress Seeks to Expand Chiropractic Role in Military health Chiropractic Ranks High Among Health Career Choices
Transcript
Texas Chiropractic Association
Texas Journal of Chiropractic
Volume XXV, Issue 2 March/April 2011
TBCE NOW: Requires Eight Hours of Medicare CE; Restricts Prepaid Contracts for Multiple Treatments Proposes More Rules Changes and Sanctions
TMA v. TBCE (II)--NEW Lawsuit Filed by Medical Profession
Texas Court Reverses Decision on Vertebral Artery Dissection
Governor Seeks Agency Consolidations
Congress Seeks to Expand Chiropractic Role in Military health
Chiropractic Ranks High Among Health Career Choices
March 11-13
I understand
are at stake in the event of a malpractice claim.
!"#$%!&%#'())*#+,-!%(&$.,.*#+!,+/!,))(.)
—Donnis Francois, OUM Claim Specialist
Should a claim arise, you may want to make the decision to pursue other options. That’s why we will not settle any claim without your written consent.* Also, your claim will be reviewed by a chiropractic peer. You won’t see this level of commitment at other insurance companies. For more information or a no-obligation quote, call us at (800) 423-1504 or visit us online at oumchiropractor.com. *Except where prohibited by law.
"OUM" and "OUM Chiropractor Program" do not refer to a legal entity or insurance company but to a program or symbol of a program underwritten, insured and administered by either PACO Assurance Company Inc. or PICA, both with Excellent ratings (A- and A, respectively) by A.M. Best.
Texas Chiropractic Association
Texas Journal of ChiropracticVolume XXV, Issue 2 March/April 2011
Federal Judge Overturns Health Reform A Summary of Legal Challenges 23
Congressional Proposal on Veteran’s Chiropractic Care 25
ERISA Class Action Against UnitedHealth Group 26
Medicare “Float” Nets Insurance $1/3 Billion 27
Medical Marketing Machine 27
Public Less Confused About Chiropractic 28
Chiropractic Still Ranks High Among Career Choices 31
College News 31
Other News 35
Publication of an advertisement does not imply approval or endorsement by the Texas Chiropractic Association. The association shall have the absolute right at any time to reject any advertising for any reason.
For advertising rates contact the TCA Office. All advertising material must be in graphics ready format and submitted as a .jpg, .jpeg, .gif, .swf, or .png file type. Copyright 2011 All Rights Reserved: Texas Chiropractic Association
Texas Journal of ChiropracticThe Official Publication of
President Elect: Jorge Garcia D.C. Secretary: Jack Albracht D.C.
TCA StaffExecutive Director: Patte Kent
Communications Director: Chris Dalrymple D.C.
Legislative Director: Chip Kent
Board of DirectorsDistrict 1! Dan Petrosky D.C.District 2! Jon Blackwell D.C.District 3! Jason Clemmons D.C.District 4! Mark Bronson D.C.District 5! Dr. John Quinlan D.C.District 6! Cody Chandler D.C.District 7! David King D.C.District 8! Robert Hoffman D.C.District 9! James Welch D.C.District 10! Shane Parker D.C.District 11! Max Vige D.C.District 12! Yvonne Landavazo D.C.
PoliciesAnnual subscription to the Texas Journal of Chiropractic is included in TCA membership dues. Contact the TCA for subscription rates for non members.
The print Texas Journal of Chiropractic is published up to four times per year by the Texas Chiropractic Association under the supervis ion of the TCA Publ icat ion Committee.
Opinions expressed are those of the contributors and do not necessarily reflect the policy of the Texas Chiropractic Association or the Texas Journal of Chiropractic.
Gov. Agency Adopts, Proposes, and Considers New Chiropractic Rules ChangesT h e T e x a s B o a r d o f Chiropractic Examiners on Thursday, February 10, 2011, adopted rules changes and voted to consider many other rules proposals.
NEW RULES PASSED:
"...amendment to Rule 73.3 concerning requiring 8 CE hours of Medicare coding/documentation."
Dr. Kathleen Summers moved and Dr. Pat Thomas seconded to adopt this amendment requiring that eight hours of “ M e d i c a r e c o d i n g a n d documentation” be provided for the continuing education of chiropractic doctors in Texas. T h e T B C E p a s s e d t h e measure by a 3 to 2 vote.
T h i s a m e n d m e n t w a s pub l i shed in the Texas Register and reported in the T e x a s J o u r n a l o f C h i r o p r a c t i c ( AT T H E ARTICLE FOUND HERE).
RULE §73.3 Continuing Education
(a) Condition of Renewal. A licensee is required to attend continuing education courses as a condition of renewal of a license.
(b) Requirements.
(b)(1) Every licensee shall attend and complete 16 hours of continuing education each year unless a l icensee is exempted under subsection (d) of this section. Each licensee's reporting year shall begin on the first day of the month in which his or her birthday occurs.
( b ) ( 2 ) T h e 1 6 h o u r s o f continuing education may be completed at any course or s e m i n a r e l e c t e d b y t h e l icensee, which has been approved under §73.7 of this title (relating to Approved Continuing Education Courses).
(b)(2)(A) A licensee must attend any course designated as a "TBCE Required Course," and the course may be counted a s p a r t o f t h e 1 6 h o u r requirement. Effective with all doctor of chiropractic licenses renewed on or after July 1, 2009, a minimum of four of the 16 required hours of continuing education shall include topics designated by the board.
(b)(2)(A)(i) A minimum of two hours of the total required continuing education shall consist of an ethics course specifically related to the practice of chiropractic. In addition to the requirements in §73.7, an instructor for this continuing education must have a doctorate degree and must either have an active license to
practice chiropractic or law or be part of the full-time faculty o f a ch i roprac t i c co l l ege accredited by the Council of Chiropractic Education. This continuing education may not be taken online except as provided under paragraph (4) of this subsection.
(b)(2)(A)(ii) A minimum of one hour of the total required continuing education shall relate to risk management relating to the Chiropractic Act, the board's rules, and other laws relevant to the practice of chiropractic in Texas. For the purpose of this rule, risk management refers to the identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method o f c o r r e c t i n g , r edu c i ng , o r eliminating, identifiable risks. In addition to the requirements in §73.7 of this title, a risk management instructor shall have a doctorate degree and must either have an active license to practice chiropractic or law or be part of the full-time faculty of a chiropractic col lege accredited by the C o u n c i l o f C h i r o p r a c t i c Education. This continuing education may be taken online through a course offered by the board.
(b)(2)(A)(iii) A minimum of one hour of the total required continuing education shall consist of recordkeeping, documentation, and coding relevant to the practice of ch i ropract i c in Texas . In addition to the requirements in § 7 3 . 7 o f t h i s t i t l e , a recordkeeping, documentation, and coding instructor shall have a doctorate degree and must either have an active license to practice chiropractic or law or be part of the full-time faculty o f a ch i roprac t i c co l l ege accredited by the Council on
Chiropractic Education. This continuing education may not be taken online except as provided under paragraph (4) o f t h i s s u b s e c t i o n . N o t w i t h s t a n d i n g t h e requirements in this clause, all chiropractic licensees must complete at least eight h o u r s o f c o n t i n u i n g education in coding and documentation for Medicare c l a i m s d u r i n g e i t h e r calendar year 2011 or 2012, except that licensees who receive their initial Texas chiropractic license on or after September 1, 2012, have 12 months after their initial licensure date to complete the eight hours of continuing education in coding and documentation for Medicare claims. No licensee who was initially licensed in Texas prior to September 1, 2012, shall be allowed to renew his or her chiropractic license at any time during calendar year 2013 unless he or she has completed the required eight hours of continuing education in coding and documentation for Medicare c l a i m s d u r i n g e i t h e r calendar year 2011 or 2012. Licensees who were initially l i c e n s e d o n o r a f t e r September 1, 2012, must complete the eight hours of continuing education in coding and documentation for Medicare claims no later than one year after their initial licensure in order to be eligible to renew their l i c e n s e s a t t h e i r n e x t renewal date on or following the first annual anniversary of their original licensure date. The eight hours of r e q u i r e d c o n t i n u i n g education in coding and documentation for Medicare claims may be counted as part of the total of 16 continuing education hours
required during the year in which the eight hours were completed.
(b)(2)(A)(iv) In addition, from time to time, the board may i s sue pub l i c memoranda regarding urgent or significant publ ic heal th issues that licensees need to be aware of. The board will publish such memoranda on the board's web s i t e a n d d i s t r i b u t e t h e memoranda to the major continuing education providers.
(b)(2)(B) A licensee who serves as an examiner for the National B o a r d o f C h i r o p r a c t i c Examiners' Part IV Examination may receive credit for this activity, not to exceed eight (8) hours each year.
(b)(2)(C) No more than six hours or credit may be obtained through online courses.
(b)(3) A l ist of approved c ou r s e s , i n c l ud i ng TBCE Required Courses, is available on t he boa rd ' s webs i t e , www. tbce . s ta te . tx .us , as provided in §73.7(f) of this title. The board will also provide notice of a TBCE Course in its newsletter.
(b)(4) A licensee who is unable to travel for the purpose of a t t e n d i n g a c o n t i n u i n g education course or seminar due to a mental or physical illness or disability may satisfy t h e b o a r d ' s c o n t i n u i n g education requirements by c o m p l e t i n g 1 6 h o u r s o f approved continuing education courses online. Video courses will no longer qualify for credit.
(b)(4)(A) If the licensee is unable to take an onl ine course, the licensee must submit a request for special accommodations to complete their continuing education requirements.
(b)(4)(B) In order for an online course to be accepted by the board, a licensee must submit a letter from a licensed doctor of chiropract ic, medicine, or o s t e o p a t h y w h o i s n o t associated with the licensee in any manner. In the letter, the doctor must state the nature of the illness or disability and certify that the licensee was ill or disabled, and unable to travel for the purpose of obtaining continuing education hours due to the illness or disability.
(b)(4)(C) A licensee is required to submit a new certificate for each year an exemption is sought. An untrue certification submitted to the board shall s u b j e c t t h e l i c e n s e e t o disciplinary action as authorized by the Ch i rop rac t i c Ac t , Occupations Code §201.501 and §201.502.
(b)(4)(D) The six hour limit provided in subsection (b)(2) of this section for online courses does not apply to a licensee who submits a certification under this subsection.
(c) Verification.
(c)(1) At the request of the Board, a licensee shall submit, t o t h e b o a r d , w r i t t e n verification from each sponsor, of the licensee's attendance at a n d c o m p l e t i o n o f e a c h continuing education course which is used in the fulfillment of the required hours for all years requested.
(c)(2) A licensee submitting hours as a National Boards examiner must submit written verification of the licensee's participation from the National Boards, on National Boards letterhead. The verification must include the licensee's name, board license number,
Texas Journal of Chiropractic 4 www.chirotexas.org
and the date, time, and place of each examination attended by the licensee as an examiner.
( c ) (3 ) Fa i l u r e t o submi t verification as required by paragraph (1) of this subsection shall be considered the same as failing to meet the continuing education requirements of subsection (b) of this section.
(d) Qualifying exemption. The following persons are exempt from the requirements of subsection (b) of this section:
(d)(1) a licensee who holds an inactive Texas license. However, if at any time during the reporting year for which such exemption applies such person desires to practice chiropractic, such person shal l not be entitled to practice chiropractic in Texas until all required hours of continuing education credits are obtained and the executive director has been notified of completion of such continuing education requirements;
(d)(2) a licensee who served in the regular armed forces of the United States during part of the 1 2 m o n t h s i m m e d i a t e l y preceding the annual license renewal date;
(d)(3) a licensee who submits proof satisfactory to the board that the licensee suffered a mental or physical illness or disability which prevented the licensee from complying with the requirements of this section d u r i n g t h e 1 2 m o n t h s immediately preceding the annual license renewal date; or
(d)(4) a licensee who is first licensed within the 12 months immediately preceding the annual renewal date.
~~~A new rule was also adopted
"...to restrict use of prepaid contracts for multiple visits or treatments and to adopt inclusion of fa i l ing to comply with requirements of prepaid plans as a Category One violation in the Maximum Sanctions Table (Penalty Matrix)."
RULE §80.13 Prepaid Treatment Plans
(a) A licensee may accept p repaymen t f o r se rv i ce s planned but not yet delivered, but must provide the following:
(a)(1) The p lan must be cancellable by either party at any time for any reason without penalty of any kind to the patient.
(a)(2) Upon cancellation of the plan the patient shall receive a complete refund of all fees paid on a pro rata basis of the number of treatments provided compared to total treatments contracted.
(a)(3) The plan must provide for a limited, defined number of visits.
(a)(4) The patient's file must contain the proposed treatment plan, including enumeration of al l aspects of evaluation, management, and treatment planned to therapeutically benefit the patient relative to the condition determined to be present and necessitat ing treatment.
(a)(4)(A) The patient's financial file must contain documents o u t l i n i n g a ny n e c e s s a r y procedures for re fund ing unused payment amounts in the event that either the patient or the doctor discharge t h e o t h e r ' s s e r v i c e s o r therapeutic association.
(a)(4)(B) The treatment plan in such cases where prepayment is contracted must contain beginning and ending dates and a breakdown of the proposed treatment frequency.
(a)(5) A contract for services and consent of treatment document must be maintained in the pat ient 's f i le that specifies the condition for which t h e t r e a t m e n t p l a n i s formulated.
(a)(6) If nutritional products or other hard goods including braces, supports, or patient aids are to be used during the proposed treatment plan, the patient documents must state whether these i tems are included in the gross treatment costs or if they constitute a separate and distinct service or fee.
(b) This rule does not create any exemptions from any requirements applicable under the Texas Insurance Code.
~~~The TBCE also amended R u l e 7 1 . 3 " t o r e m o v e sections that have become obsolete due to changes to admissions requirements to chiropractic colleges made b y t h e C o u n c i l o n Chiropractic Education (the a c c r e d i t i n g b o d y f o r chiropractic schools)."
RULE §71.3 Qualifications of Applicants
(a) All applicants must comply with the application process and license requirements in the Chiropractic Act, Subchapter G o f C h a p t e r 2 0 1 o f t h e Occupations Code.(b) The board may deny an application for a chiropractic license if it receives information
from an administering entity that the applicant has defaulted on a student loan or has breached a s tudent l oan r e p a y m e n t c o n t r a c t o r scholarship contract by failing to perform his or her service obligation under the contract. The board may rescind a denial under this subsection upon receipt of information from an administering entity that the applicant whose application was denied is now in good standing. For the purposes o f th is subsection, "good standing" means that the applicant has:
( b ) ( 1 ) e n t e r e d i n t o a n a g r e e m e n t w i t h t h e administering entity to:
(b)(1)(A) repay the student loan;
(b)(1)(B) perform the service obligation; or
(b)(1)(C) pay any damages required by the student loan r e p a y m e n t c o n t r a c t o r scholarship contract; or
(b)(2) taken other action resulting in the applicant no longer being in default on the l o a n o r i n b r e a c h o f a repayment or scholarship contract.
(c) For each student admitted a Chiropract ic Col lege must document and retain evidence in the student's file regarding the basis upon which the student was judged to be qualified for admission, and clearly inform the student at the time of admission that limitations of practice venue and licensure might occur. Students must demonstrate that qualifications for student acceptance and resul tant enrollment are appropriate to the program objectives, goals and educational mission of the program or institution. Each
student admitted to begin the study of chiropractic on the basis of academic credentials from institutions within the United States must meet the following requirements:
(c)(1) All applicants must furnish proof of having earned a minimum of 90 semester hour credits of courses at an inst i tut ion or inst i tut ions accredited by a nationally recognized agency not including
courses included in a doctor of chiropractic degree program.
(c)(2) All applicants must present proof of graduation from a bona fide Chiropractic College that is accredited by chiropractic educational accrediting body that is a member of the Councils on Chiropractic Education International.
~~~
6Texas Journal of Chiropractic
Call for Keeler Award NominationsEstablished in 1934 by Dr. Clyde Keeler, The Texas Chiropractic
Association’s award designating the Chiropractor of the year, The Keeler Plaque, is Texas Chiropractic’s most prestigious award.
Nominations for the Keeler Plaque should be sent to:
Dr. Curtis McCubbinSecretary, Keeler Plaque Committee
P. O. Box 272Hunt, Tx 78024
All nominations will be held in strict confidence to assure that the recipient will be surprised when their name is announced.
A candidate shall be:
A member in good standing in the TCA
Of good moral character
A promoter of chiropractic advancement in at least one of the three years immediately proceeding the year in which the award is to be presented. Such advancement may be in research, public relations,
school participation, promotion or support.
The candidate’s main endeavor must be in the practice of chiropractic and must have promoted chiropractic throughout their career.
Civic, church or community involvement, individually or within organizations or groups, and holding offices in local, state or national
chiropractic organizations, chiropractic boards, and chiropractic college boards may also be considered.
(a)(9) Respondent--an individual or facility regulated by the board against whom a complaint has been filed;
(a)(10) SOAH--State Office of Administrative Hearings;
(a)(11) DSHS--Department of State Health Services.
(b) The following table contains maximum sanctions that may be assessed for each category of violation listed in the table:
See Table Next Page
(c) In a case where a respondent has committed multiple violations or multiple occurrences of the same v i o l a t i o n , b o a r d s t a f f , t h e enforcement committee or an administrative law judge may recommend and the board may impose sanctions in excess of a maximum sanction specified in the maximum sanction table provided by subsection (b) of this section, if otherwise authorized by law. For the fourth and subsequent offenses of any violation listed in the maximum sanction table with three levels of sanctions, the maximum sanction is r e v o c a t i o n a n d / o r $ 1 0 0 0 administrative penalty.
(d) An administrative penalty may not exceed $1,000 per day for each violation. Each day a violation continues or occurs is a separate violation for the purposes of imposing an administrative penalty.
(e) For violation of a statute which is not listed in the maximum sanction table and for which the board i s au thor ized to take disciplinary action, the maximum sanction is revocation and/or $1000 administrative penalty.
RULES TO BE PUBLISHED FOR COMMENT
At this same meeting in February, the TBCE voted to publish rules proposals for further comment and action.
"...amendment to Rule 78.1 Registration of Chiropractic Radiologic Technologists (Rad Te c h s ) t o r e m o v e t h e requirement that a Rad Tech must show proof of continuing education upon renewal" to TBCE as the Department of State Health Services "tracks those CE hours and it is a duplication of effort for TBCE to do so."
"...propose new Rule 77.5 Misleading Claims to the
advertising section of Board Ru les to fu r ther c la r i f y advertising requirements and prohibitions (e.g. , advertising out of scope, unsupported claims, etc.)”
When the proposed rules are pub l i shed in the Texas Register they will also be pub l ished in the Texas Journal of Chiropractic, Online.
POTENTIAL RULES TO BE CONSIDERED
The TBCE voted to direct the staff to "draft rule proposals" to address the "following question(s) from staff".
Presumably one or more of the three staff attorneys will undertake this endeavor.
1. May a licensed chiropractor advertise to treat, claim to treat, attempt to treat, or treat a patient for Type II Diabetes?
2. May a licensed chiropractor advertise to treat, claim to treat, attempt to treat, or treat a patient for thyroid problems (hypo or hyper thyroidism)?3. Are "chiropractors allowed to practice homeopathy...?" "Is homeopathy within the scope of practice in your state or are chiropractors specifical ly excluded from practicing homeopathy?"4. "... what can I say as far as treatment of ear infections?"
5. "Is 'dry needling' within s c o p e o f p r a c t i c e ? " [ p r e l i m i n a r y
Practicing with an expired license (nonrenewal due to default student loan)
Practicing with an expired license (nonrenewal)
Practicing while on inactive status
Practicing in non-compliance with continuing education requirements
Improper control of patient care and treatment
Grossly unprofessional conduct
Lack of diligence/gross inefficient practice
Performing radiologic procedures without registering, with an expired registration, or without DSHS approval; failure to renew (including non-payment of fees)
Performing: (1) radiologic procedures without supervision; or (2) cineradiography or other restricted procedure
Permitting a non-registered or non-DSHS approved person to perform radiologic procedures or CRT to perform procedures without supervision
Delegating to a non-licensee authority to perform adjustments or manipulations
Failure to supervise a student
Delegating authority to a licensee whose license has been suspended or revoked
Failure to comply with the CA, other law or a board order or rule
Failure to comply with down-time restrictions
Medicaid fraud
Solicitation
Default on Student Loan
Failure to comply with requirements/restrictions on prepaid treatment plans
Submitting an untrue continuing education certificationOperating a facility without a certificate of registration or with an expired registrationPracticing in a facility without a certificate of registration or with an expired registrationUnauthorized disclosure of patient recordsOvertreating/overcharging a patientDeceptive advertising and other prohibited advertising
Failure to furnish patient recordsOvercharging for copies of patient recordsFailure to disclose charges to patientFailure to submit to medical examinationFailure to maintain patient records
Failure to respond to board inquiriesFailure to display public interest informationDisplaying an invalid license or renewal cardFailure to complete CRT continuing education
Failure to report change of addressFailure to report change of facility address/ownershipFailure to report locum tenens informationFailure to report criminal convictionUse of the term "physician," "chiropractic physician"Failure to use "chiropractor," "D.C." in advertising
indications are that the board desires to address this under the acupuncture portion of their rules].
6. "Is the use of laser to treat toe fungus within the scope of p r a c t i c e ? " [ p r e l i m i n a r y indications are no].
7. "Is it within scope of practice for a DC to conduct screening of arter ies to determine the risk of stroke or a heart attack?"
8. "Is the performance of v ideo fluoroscopy within scope and i s hav ing a radiology diplomate the only acceptable qualification for a D C w h o p e r f o r m s t h e procedure?"
9. "Is it within scope of practice for a DC to use an oxygen concentrator (not bottled oxygen) as part of the treatment of a patient?"
10. "Is it within scope of practice for a DC to perform a n ' i n t e r n a l c o c c y x adjustment' or to perform a manual lymphatic drainage near a female's breast?"
Fu tu re da tes fo r TBCE Meetings are scheduled for:
NEW Lawsuit Filed TMA v TBCE (II)On January 31, 2011 the Texas Medical Association once again sought to make use of the court system to enforce its opinion upon others. The TMA filed a lawsuit in Travis County Court that challenges a rule of the Texas Board of Chiropractic Examiners. Says the TMA: "The rule authorizes certain l icensed chiropractors to
p e r f o r m ' Te c h n o l o g i c a l Instrumented Vest ibular-Ocular-Nystagmus' testing. This suit seeks a declaration that the Vestibular-Ocular-Nystagmus testing provision violates [law] because it
exceeds the lawful scope of the practice of chiropractic ...."
The TMA further claims that "The rule also is void because i t un lawfu l l y au thor izes chiropractors to practice medicine in violation of the Texas Med ica l P rac t i ce Act ...."
TMA states "In this lawsuit, TMA is seeking to protect the value of its members' right to practice medicine. The question of who has the right to practice medicine is directly related to the quality of the care provided."
9 Texas Journal of Chiropractic
Call for Nominations for Young Chiropractor of the Year
Established over half a century ago, this award is for the purpose of recognizing doctors who have shown
outstanding dedication and who have made long-lasting contributions to the profession and their community, and who are under 40 years of age at the time of the award’s
TMA also alleges, as it did in its other lawsuit against the chiropractic profession, "the authority of a chiropractor to ' a n a l y z e , e x a m i n e , o r evaluate' and treat a patient is limited to the biomechanical condition of that patient's spine or the biomechanical condition of that patient's musculoskeleta l system. There is no definition of 'biomechanics' that includes the function of the brain, eyes and inner ear." [emphasis in the original]
In their attempt to limit the scope of chiropractic practice t h e T M A s t a t e s " a c h i r o p r a c t o r s a n a l y s i s , examination, evaluation, and t reatment of a person's biomechanical condition is limited to the spine and musculoskeleta l system, neither of which includes the brain, eyes or inner ear."
More statements of the m e d i c a l p r o f e s s i o n a l association include: "..the eyes and ears are not part of the ... musculoskeletal system of the human body."
"Vestibular-Ocular-Nystagmus testing has but one purpose: i t is a diagnostic test . C h i r o p r a c t o r s h a v e n o statutory authority to make diagnoses ...." [emphasis in original]
"The legislature did not authorize chiropractors to d i a g n o s e m e d i c a l conditions ...." A full copy of the lawsuit is posted HERE.
★ ★ ★ ★ ★ ★ ★ ★
TMA v TBCE; Who, What, When...The matter of TMA v TBCE has been appealed to the Third Court of Appeals and the TBCE's 30-plus page brief to that court may be found HERE in three parts.
The brief includes a myriad of information and is used to create this summary article.
The TCA's 60-plus page brief is also found at the above link and summarized in the article following.
HISTORICAL SUMMARY
Here is a history of what has thus far happened in the Texas Medical Association's endeavor to regu la te a profession that is not its own.
" T h e Te x a s B o a r d o f Ch i rop rac t i c Exam ine rs (TBCE) is the entity charged with regulating the practice of chiropractic in Texas as a u t h o r i z e d u n d e r t h e Chiropractic Act," the brief notes. "Prior to the 2005 legislative session, TBCE underwent Sunset review. As a result of that review, the Legislature adopted HB 972 a m e n d i n g t h e T e x a s Chiropractic Act which ... mandated that TBCE adopt a scope of practice rule."
The brief then notes that "TBCE adopted its scope of practice rule in 2006, and Texas Medical Association (TMA) brought th is su i t challenging certain provisions of TBCE's rule." The Texas Medical Board (TMB) joined in the su i t and the Texas Chiropractic Association "later i n t e r v e n e d t o r a i s e constitutional challenges."
"In the fall of 2009," the brief continues, "the parties filed cross motions for summary judgment. On November 24, 2009, the trial court entered an order that granted TMA and TMB's motions as to m a n i p u l a t i o n u n d e r anesthesia (MUA) and needle electromyography (needle EMG) and denied their motion a s t o T B C E ' s u s e o f 'diagnosis' in the scope of practice rule."
"The court further ordered that TBCE and TCA's motions for partial summary judgment were denied with regard to MUA and needle EMG and granted in part as to the use of 'diagnosis' in TBCE's rule. The court further reserved j u d g m e n t r e g a r d i n g 'diagnosis' as it relates to the scope of practice."
"In the summer of 2010, the parties filed supplemental cross motions for summary judgment as to the use of 'diagnosis.' The court granted TMA and TMB's motion as to t h e r e m a i n i n g i s s u e s concerning diagnosis and entered final judgment on September 7, 2010, which
10Texas Journal of Chiropractic www.chirotexas.org
provided as follows: declared inva l id and vo id [ ru les ] concerning MUA; declared inva l id and vo id [ ru les ] concerning needle EMG; and declared invalid and void [rules] concerning diagnosis."
QUESTIONS
As a result of this final judgment the appeal to the Third Court of Appeals has been filed. The TBCE brief focuses primarily upon three issues: "Did the trial court err in applying its own definition of 'incision' in place of TBCE's adopted definition and policy and in holding that needle EMG was not part of the s c o p e o f p r a c t i c e o f chiropractic? ... Did the trial court err in applying legislative history regarding prior law to determine that needle EMG was not within the scope of practice of chiropractic? ... Did the trial court err in construing the Chi ropract ic Act as prohibiting MUA?"
The reader is referred to the full brief for more detailed information; the following arguments are excerpted to offer illustration.
T H E L E G I S L A T U R E DIRECTS
"In 2005, the Legislature amended the Chiropractic Act and made several changes regarding scope of practice, inc lud ing adding a new d e fi n i t i o n f o r s u r g i c a l procedure ... and mandating t h a t T B C E a d o p t r u l e s clarifying activities within the
scope of practice through an i n c l u s i v e r u l e m a k i n g process .... After nearly a year of rule making, TBCE adopted the scope of practice rule in 2006."
"This case arises from TBCE's adoption of a rule defining the s c o p e o f p r a c t i c e o f chiropractic in Texas as directed by the Legislature .... TMA's suit challenged specific provisions of TBCE's rule dealing with three issues: needle electromyography (needle EMG), manipulation under anesthesia (MUA), and the use of the word 'diagnosis' in the rule. TBCE was subject to sunset review during the 2005 legislative session, and one of the issues that the r e v i e w a d d r e s s e d w a s T B C E ' s p r o c e s s f o r determining scope of practice issues and, in particular, needle EMG .... this review was built upon nearly a decade of discussion that had included several Attorney General Opinions."
EMG WITH NEEDLES
The brief notes that "....TBCE described needle EMG as follows: Needle EMG is a type of electro-neuro diagnostic testing. Needle EMG does not involve the injection of any substances or the removal of any tissue." It also notes that " M a n i p u l a t i o n u n d e r a n e s t h e s i a ( M U A ) i s a procedure that is joint ly c a r r i e d o u t b y a n a n e s t h e s i o l o g i s t a n d a chiropractor in which a patient is placed under a general
anesthetic so that a part of a patient's musculoskeletal s y s t e m m a y b e f r e e l y manipulated."
The brief argues that "The trial court erred in applying its own c o n s t r u c t i o n o f t h e Chiropractic Act's terms in place of TBCE's rule adopting a definition of 'incision' and a policy regarding the use of needles. TBCE's definition and policy regarding the use of needles were consistent with the Chiropractic Act and its general objectives. In determin ing that needle electromyography (needle EMG) was part of the scope of practice of chiropractic in Texas, TBCE read the Act as a whole and harmonized its provisions. TBCE further c lar ified i ts author i ty to regulate the practice of needle EMG by adopting a definition for 'incision' and a policy regarding when needles could be used as part of the practice of chiropractic."
Supporting this assertion is the argument that "The trial court erred in holding that needle EMG was not part of the scope of practice of chiropractic and in applying the common meaning of 'incision' in place of TBCE's a d o p t e d d e fi n i t i o n a n d policy .... the trial court rejected TBCE's interpretation of the Chiropractic Act and applied the common meaning of 'incision' in place of TBCE's a d o p t e d d e fi n i t i o n a n d policy .... While the trial court acknowledged that 'whether the ordinary meaning ... would
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include a needle entry is subject to debate,' the court failed to then defer to TBCE's determination that the use of a needle would not be an incision .... the trial court instead substituted its own finding that use of a needle would constitute an incision in place of TBCE's finding and rule." The brief cites legal precedent for its conclusion.
"As the Chiropractic Act does not include a definition for 'incision,' TBCE adopted a rule defining the term as '[a] cut or a surgical wound; also, a division of the soft parts made with a knife or hot laser' .... Further, TBCE adopted a policy describing when the use of needles was consistent with the scope of practice of chiropractic in Texas: Needles may be used in the practice of chiropractic under standards set forth by the Board but may not be used for procedures that are incisive or surgical. (A) The u s e o f a n e e d l e f o r a procedure is incisive if the procedure results in the removal of tissue other than for the purpose of drawing blood. (B) The use of a needle for a procedure is surgical if the procedure is listed in the surgical section of the CPT Codebook .... Read together, the definition for 'incision' excluded from the scope of practice all procedures that involve slicing open the body and the policy clarified that a needle would only be incisive if it was used to remove tissue other than blood .... TBCE sought to harmonize the
Chiropractic Act's prohibition on the use of incisive or surgical procedures with its allowance for the use of needles in acupuncture and to draw blood as well as the ability of a chiropractor to analyze, examine, or evaluate the biomechanical condition of t h e m u s c u l o s k e l e t a l system .... TBCE construed the Act as a whole and harmonized its provisions."
In this way, the brief argues, "TBCE's construction is that if a ch i ropractor may use needles for acupuncture, if acupuncture needles are not incisive, if a chiropractor may use a needle to draw blood, and if a chiropractor may use 'objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system' then a ch i ropractor may use needles for other purposes, i n c l u d i n g n e e d l e E M G , provided that no tissue is removed and that the use is not listed in the surgery s e c t i o n o f t h e C P T Codebook."
"The court acted arbitrarily in a p p l y i n g t h e c o m m o n meaning of 'incisive' in place
of the definition and policy adopted by the TBCE .... in direct contradiction to the statutory mandate for the promulgation of the scope of p rac t i ce ru le . " "TBCE 's construction is in harmony w i t h t h e a l l o w a n c e f o r chiropractors to use needles for acupuncture, where the Legislature has provided that t h e u s e o f n e e d l e s i s nonsurgical and nonincisive.""The trial court further erred in looking to legislative history when TBCE had resolved any ambiguities in the Act through its rulemaking. The trial court failed to defer to TBCE's construction of the Act and ins tead looked to p r io r legislative history as part of the basis for its decision."
"The trial court additionally relied on legislative history from 1995 as support for determining that needle EMG was not part of the scope of practice in Texas .... This rel iance disregarded the subsequent ten year review of t h i s i s s u e , s u b s t a n t i v e c h a n g e s m a d e t o t h e Chiropractic Act in 2005 as part of HB 972, and other statutory changes s ince 1995."
"As the text of the Act and TBCE's scope of practice rule was not ambiguous, there was no need for the court to have looked to legislative history or other extrinsic aids to determine whether needle EMG was within the scope of practice of chiropractic." "The trial court elected instead to draft its own rule excluding
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needle EMG from the scope of chiropractic. The trial court did this even though the Legislature had declined to draft such a rule and even t h o u g h t h e c o u r t ' s construction was in contrary to the Legislature's specific authorization for TBCE to p romu lga te a scope o f practice rule."
The brief points out that while in 1995 State Representative Kyle Janek M.D. may have s o u g h t t o p r o h i b i t c h i r o p r a c t o r s f r o m t h e practice of needle EMG, " R e p r e s e n t a t i v e J a n e k succeeded in removing the explicit authorization for TBCE to certify chiropractors to perform needle EMG ... the legislature did not adopt l a n g u a g e t h a t c l e a r l y excluded needle EMG from the scope of practice.”
The brief describes three separate Attorney General opinions relating to needle EMG and points out that "These opinions served to frame the discussion of needle EMG dur ing the Sunset Commission's review of TBCE prior to the 2005 leg is la t ive sess ion. The Sunset staff report addressed the need for TBCE to adopt a scope of practice rule and the need to clarify whether needle EMG was within the scope of practice of chiropractic .... During the 2005 session, the Legislature did not address needle EMG, but they did amend the Chiropractic Act to add a new defini t ion of 'surgical procedure' and a
d i r e c t i v e t h a t T B C E p romu lga te a scope o f practice rule." The brief concludes that "This could be interpreted as a legislative deferral of the needle EMG issue as a matter for TBCE to address in its rulemaking on the scope of practice."
MANIPULATION WHILE ANESTHETIZED
"The trial court also erred in ruling that manipulation under a n e s t h e s i a ( M U A ) w a s p r o h i b i t e d u n d e r t h e Chiropractic Act. The trial cour t er red in re ject ing TBCE's construction of the Act as a whole and TBCE's harmonizing of all the Act's provisions.”
"The court and TBCE agree that MUA is listed in the surgery section of the CPT Codebook and thus a surgical p r o c e d u r e u n d e r t h e Chiropractic act .... This limitation, however, must be construed in context with two other provisions." The brief t h e n p o i n t s o u t t h a t chiropractors ARE authorized to per fo rm nonsurg ica l , n o n i n c i s i v e p r o c e d u r e s including adjustment and m a n i p u l a t i o n ; a n d t h a t m a n i p u l a t i o n o f t h e musculoskeletal system is at the core of chiropractic." The brief argues that "all three provisions .... must be read together and harmonized in order to give effect to all of the p r o v i s i o n s . T B C E ' s construction does that. The
court's construction relies on a double negative ...."
" T B C E ' s l o n g - s t a n d i n g interpretation has been that," the brief states, "[the Act] prohibits the board from certifying MUA practitioners." Further, it notes, "TBCE's i n t e r p r e t a t i o n i s a l s o c o n s i s t e n t w i t h R e p r e s e n t a t i v e U h e r ' s statement that the original purpose of the amendment was to p rov ide fo r t he qualification of chiropractors that perform MUAs."
The brief concludes on this p o i n t t h a t " T B C E ' s construction is consistent with the plain meaning of the statutory provision in the context of the chiropractic act a s a w h o l e . . . . W h i l e R e p r e s e n t a t i v e J a n e k succeeded in amending the proposed language so that chiropractors may not be certified to perform MUAs [the Act] does not unambiguously prohibit chiropractors from performing MUA."
CONCLUSION
The conclusion argued is that ".... the trial court erred in construing the Chiropractic Act and TBCE's scope of practice rule, giving too much weight to legislative history and insufficient consideration to TBCE's construction of the Act and the definitions and p o l i c i e s a d o p t e d b y rulemaking as directed by the Legislature."
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The brief concludes that "....the rule adopted by TBCE was a reasonable exercise of t h e C h i r o p r a c t i c A c t ' s mandate for promulgation of a scope of practice rule. The portions of the trial court's judgment invalidating the rules concerning needle EMG and MUA should be reversed and judgment rendered for TBCE and TCA."
★ ★ ★ ★ ★ ★ ★ ★
TMA v TBCE (I): Why?This article utilizes the brief supplied to the Third Court of Appeals, and FOUND HERE, to investigate the reasons behind this lawsuit.
WHY?
The TCA's legal brief notes: "The practice of chiropractic in Texas is primarily governed by ... the Texas Occupations Code ( ' the Ch i roprac t i c Act'). ... The Texas Board of Chiropractic Examiners ('the B o a r d ' ) i s s p e c i fi c a l l y authorized to adopt rules c l a r i f y i ng the scope o f practice. ... The Texas Medical Association ('TMA') filed this suit in 2006 against the Board .... [and] because constitutional issues were r a i s e d b y t h e p a r t i e s ' pleadings, the State of Texas also intervened."
MEDICINE HOLDS "MUA IS SURGERY"
There are many issues addressed in this brief. "The first provision at issue allows chiropractors to perform m a n i p u l a t i o n u n d e r anesthesia ('MUA'). ... This procedure is ... manipulation of the musculoskeletal system by a chiropractor while the patient is under general anesthesia. ... At the time this p rov is ion was adop ted , chiropractors in Texas had been performing MUA for over twenty-five years and the Board had never received a complaint stemming from a chiropractor's use of the procedure."
MEDICINE HOLDS "NEEDLE EMG IS INCISIVE"
"Also at issue are a set of p r o v i s i o n s t h a t a l l o w chiropractors to perform needle electromyography (needle EMG'). ... At the time the Board adopted these provisions, chiropractors in Texas had been performing th is procedure for over twenty-five years and the Board was aware of no complaints or malpractice c l a i m s r e l a t e d t o t h e procedure."
MEDICINE HOLDS THAT "CHIROPRACTORS CAN
NOT DIAGNOSE . . . ANYTHING!"
"The remaining provisions at issue deal with the bodily conditions that chiropractors may diagnose. The first authorizes chiropractors to diagnose 'b iomechanical condition[s] of the spine and
m u s c u l o s k e l e t a l s y s t e m . ' . . . T h e s e c o n d authorizes chiropractors to d i a g n o s e ' s u b l u x a t i o n complex[es] of the spine or musculoskeletal system.'"
" T M A a n d T M B [ Te x a s Medical Board] moved for partial summary judgment declaring that the Board e x c e e d e d i t s s t a t u t o r y authority [and] .... that the authorization to diagnose was improper. On November 23, 2009, the trial court granted TMA/TMB's motion for partial summary judgment as to both MUA and needle EMG, and g ran ted TCA 's and the Board's motion with respect to the use of diagnosis. ... But the victory for TCA and the Board on the latter issue was mixed, as the court 'reserve[d] j u d g m e n t r e g a r d i n g 'diagnosis' as it relates to scope of practice.' (emphasis in original)."
WHY THIS LAWSUIT AND APPEAL?
"In July 2010, TMA/TMB sought par t ia l summary judgment that the provisions authorizing chiropractors to d iagnose b iomechan ica l conditions and subluxation c o m p l e x e s a r e i n v a l i d because they (1) exceeded the statutory scope of practice and (2) violate the Texas Constitution by authorizing the practice of medicine without a medical license."
"On September 7, 2010, the trial court granted TMA/TMB's motion for partial summary
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"The trial court erred by granting TMA/TMB's motions for summary judgment and striking down provisions of the Board's scope-of-practice rule. For each provision, the court either construed the Chiropractic Act too narrowly or the Board 's ru le too broadly."
"The authority to perform MUA is clearly implied by the Chiropractic Act. A section of the Act prohibits the Board from creating a process to ce r t i f y ch i rop rac to rs t o perform MUA. This section would be superfluous i f chiropractors were completely barred from performing the procedure . . . . whi le the Chiropractic Act excludes surgical procedures from the scope o f p rac t i ce , t h i s provision does not control here ... the Act's definition of 'surgical procedure' does not e n c o m p a s s M U A b y chiropractors; the section of the Act that specifical ly addresses MUA controls ... ; and the Act's definition of 'surgical procedure' creates an unconstitutional delegation of legislative power to a federal agency and private entity."
"Needle EMG is permitted by the Act's broad authorization to use 'objective or subjective means' to evaluate patients. The Act's exclusion of incisive procedures from the scope of practice does not bar the use of needle EMG, since the
Board reasonably construed the term 'incisive procedure' to encompass needle entries only if the entry results in the removal of tissue .... The a b s e n c e o f a n e x p l i c i t legislative reference to needle EMG should properly be understood as a delegation to the Board to interpret the vague contours of the Act's scope of practice."
"Similarly, the provision of the s c o p e - o f - p r a c t i c e r u l e author iz ing diagnosis of biomechanical conditions is n o t c o n t r a r y t o t h e Chiropractic Act .... Properly construed, those items are examples of biomechanical cond i t ions tha t may be diagnosed, not an expansion of the authority to diagnose b e y o n d b i o m e c h a n i c a l conditions. To hold otherwise requires taking the examples out of context and interpreting the provision in a way that leads to absurd results."
" F i n a l l y, t h e p r o v i s i o n author iz ing diagnosis of subluxation complexes is necessary to e ffec tuate l e g i s l a t i v e i n t e n t . T h e Chiropractic Act expressly authorizes chiropractors to t r e a t s u b l u x a t i o n complexes .. . . treatment n e c e s s a r i l y r e q u i r e s d i a g n o s i s , a n d o n l y chiropractors are trained to understand and ident i fy subluxation complexes. For t h i s r e a s o n , d e n y i n g chiropractors the authority to d i a g n o s e s u b l u x a t i o n c o m p l e x e s f r u s t r a t e s legislative intent and implies
that the Legislature passed a useless law authorizing an impossible act."
"The trial court thus erred by . . . inval idat ing these provisions. ...this Court should reverse the judgment below and hold that the Board's scope-of-practice rule is in all things consistent with the Chiropractic Act."
MUA IS WITHIN THE STATUTORY SCOPE OF
PRACTICE
" T h e C h i r o p r a c t i c A c t authorizes chiropractors to ' p e r f o r m n o n s u r g i c a l , non inc is ive p rocedures , including . . . manipulation,' to treat the musculoskeletal system. ...Pursuant to these p r o v i s i o n s , t h e B o a r d authorized chiropractors to perform MUA. ...The trial court struck down this provision .... the trial court reasoned that M U A w a s a ' s u r g i c a l procedure' and thus outside t h e s t a t u t o r y s c o p e o f practice. The court's ruling was wrong."
"The only specific reference to MUA in the Chiropractic Act proves that MUA is within the statutory scope of practice. Chiropractors cannot perform certain procedures unless they obtain additional training a n d r e c e i v e 'cer t ificat ion. ' . . .But the Chiropractic Act specifically prohibits the Board from 'adopt[ing] a process to certify chiropractors to perform m a n i p u l a t i o n u n d e r anesthesia.' This prohibition
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would be superfluous under the t r i a l cou r t ' s ru l i ng , because a total ban on chiropractors performing MUA necessarily implies a ban on certifying chiropractors t o p e r f o r m M U A . A n d interpretations that create surplusage or fail to give effect to some part of a statute should be rejected."
Nei ther does leg is la t ive history prove otherwise. "The first version of the prohibition on certification was proposed by Rep. Uher as a b i l l amendment and was in fact not a prohibition at all. It stated that the Board 'shall adopt a process to certify chiropractors to perform m a n i p u l a t i o n u n d e r anes thes ia . ' . . .The fi rs t v e r s i o n a l s o e x p r e s s l y provided for the adoption of rules to govern the practice of MUA by chiropractors. ...this a m e n d m e n t w a s i t s e l f amended to state that the Board 'shall not adopt' a process to certify the practice of MUA .... The text of the a m e n d m e n t c l e a r l y c o n t e m p l a t e s t h a t chiropractors in Texas will perform MUA."
The brief notes that ".... there are three reasons why these isolated facts fail to establish that MUA is a prohibited surgical procedure. First, the surgery section's reference to m a n i p u l a t i o n r e q u i r i n g a n e s t h e s i a d o e s n o t encompass ch i rop rac t i c procedures. Although the surgery section of the CPT includes '[m]anipulation of
spine requiring anesthesia,' the surgery section cross-references code 97140 '[f]or spinal manipulation without anesthesia....'"
" I f t h e r e f e r e n c e t o m a n i p u l a t i o n r e q u i r i n g anesthesia was intended to encompass ch i rop rac t i c procedures, one would expect code 97140 to encompass chiropractic procedures as well, since the two are stated to be counterparts of one another. ...But 'chiropractic manipulative treatment' is c o v e r e d b y c o d e s 98940-98943 , no t code 97140. ...Thus, a chiropractor who bills for manipulation without anesthesia will use the ch i ropractor -spec ific codes. And it follows, based on the CPT's cross-reference, that a chiropractor will use the same codes if anesthesia is used. ...MUA by a chiropractor is therefore not listed in the surgery section of the CPT."
" E v e n i f i t w e r e , t h e Chiropractic Act's prohibition on certification specifically addresses MUA, whereas the Act's general definition of 'surgical procedure' addresses an enormous number of procedures. Barring unusual circumstances, a specific provision prevails over a c o n fl i c t i n g g e n e r a l provision .... the clearest evidence of the Legislature's intent is the specific provision. In fact, the general provision deserves even less weight here, since the federal agency delegated the coding decision to the American Medical
Association--a group of rival health care providers--and the CPT itself warns that its coding classifications should not be used to 'restrict [a procedure's] use to a specific specialty group.'"
"Finally ... section 201.002(a)(4) of the Chiropractic Act, which delegates the power to define 'surgical procedure' to CMS is unconstitutional. First, it creates a standardless de legat ion to a federa l agency. ...Second, the AMA--a p r i va te en t i t y - - i s so le ly responsible for drafting and revising the CPT codes, and it does so without any public input or legislative oversight. Delegations to private entities raise serious constitutional issues and are subject to more stringent requirements and less judicial deference than delegations to public e n t i t i e s . . . . T h e p r i v a t e delegation in this case is particularly egregious, since it p u t s c o n t r o l o v e r ch i rop rac to r ' s scope o f practice in the hands of potential competitors. ...Once sec t i on 201 .002 (a ) (4 ) ' s delegation is swept aside, there is no rational reason to think that MUA qualifies as a 'surgical procedure.'"
"In sum, the Legislature has not prohibited chiropractors from performing MUA and the Board's rule is not invalid. ... the Court should defer to the B o a r d ' s r e a s o n a b l e interpretation of a complex statutory scheme or strike d o w n t h e L e g i s l a t u r e ' s
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"Chiropractors are authorized by statute to 'use ... objective o r sub jec t i ve means to analyze, examine, or evaluate' the biomechanical condition of t h e m u s c u l o s k e l e t a l system. ...But 'incisive or surgical procedures' are specifically excluded. ...These excluded procedures include 'making an incision into any tissue, cavity, or organ,' although 'use of a needle for the purpose of drawing blood' is explicitly excepted from the exclusion."
"Interpreting these provisions, the Board adopted several provisions that permit needle EMG by chiropractors. ... The B o a r d a l s o r e m o v e d a potential roadblock to needle EMG by categorizing use of a needle as 'incisive' ... only if 'the procedure results in the removal of tissue other than for the purpose of drawing blood.'"
"The trial court invalidated the Board's provisions .... the court reasoned that unless 'incision' is read to encompass needle entries, the provision allowing use of a needle to d r a w b l o o d w o u l d b e surplusage .... And the court rejected the Board's rule that only needle entries resulting in removal of tissue qualify as 'incisive.' Hence the needle entries made during needle
EMG are 'incisive' and outside t h e s t a t u t o r y s c o p e o f practice. ... there is no reason to think that all needle entries must count as ' incisive.' Indeed, the Legislature itself has defined acupuncture in part as the 'nonsurgical, nonincisive insertion of an acupuncture needle.' ... The Board's rule avoids either extreme -- needle entries that do not result in removal of tissue can be performed by chiropractors, whereas needle entries that do result in removal of tissue are incisive and beyond the scope of practice. This interpretation of the term 'incisive' avoids any surplusage problem identified by the trial court, since using a needle to draw blood results in removal of tissue and would be excluded from the scope of practice without an express provision to the contrary."
"The Trial court agreed with the Board that the 'ordinary meaning' of 'incision' is 'a surgical cut or wound' .... the trial court acknowledged, ' [w ]he the r t he o rd i na r y meaning would include a needle entry is subject to debate .... The Board was thus faced with a conceptually d i f fi c u l t q u e s t i o n o f interpretation: when does a needle entry qualify as a 'cut' o r ' w o u n d ' ( a n d h e n c e become ' inc is ive ' )? The Board's answer--when the needle entry removes tissue--has a sound rational basis, since the removal of tissue is l i ke l y t o c rea te t he . . . separation of tissue that is the hallmark of a 'cut' or 'wound.'
B e c a u s e t h e B o a r d ' s interpretation is reasonable and lies squarely within the Board's expertise, courts should defer to the Board's interpretation."
Again, legislative history does not contradict this. "In an early draft of the statute, needle E M G w a s l i s t e d a s a n exception to the definition of 'incisive procedure' along with d r a w i n g b l o o d . . . . A n amendment during the floor debate removed the reference to needle EMG, leaving use of a needle for drawing blood as t h e o n l y r e m a i n i n g exception .... If the Legislature intended to exclude needle EMG from the statutory scope of practice, as TMA/TMB argued ... it could have done so explicitly, rather than remain silent on the issue. ... The more likely explanation is that the Legislature's silence was an implied delegation to the Board. Elsewhere in the C h i r o p r a c t i c A c t , t h e Legislature has specifically authorized the Board to adopt rules clarifying the scope of practice. ... In any event, absent clearer direction from the Legislature, the Board's interpretation is reasonable and en t i t l ed to j ud i c ia l deference."
The TMA and TMB would have us believe that "because the Chiropractic Act excepts using needles to draw blood from the definition of 'incisive procedure,' all other uses of a needle by a chiropractor are impliedly included in that definition. ... But this sweeps
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too broadly .... [this] argument assumes that all uses of a needle are 'incisive' and require an explicit exception in order to be performed by chiropractors. ... however, the t e r m ' i n c i s i v e ' c a n b e reasonably construed to apply to needle entries only if tissue is removed. Under th is interpretation, no explicit excep t i on i s necessa ry because needle EMG never came within the term 'incisive' in the first place. ... an explicit exception for needle entries to draw blood only negates additional exceptions for needle entries of the same type--namely, those that remove tissue."
"In short, the Board was expressly charged by the Legislature with using its expertise to interpret the vague scope-of -pract ice language in the Chiropractic Act, and the Board executed that charge in a whol ly reasonable way."
DIAGNOSING BIOMECHANICAL
CONDITIONS IS NOT CONTRARY TO THE CHIROPRACTIC ACT
" I t i s u n d i s p u t e d t h a t c h i r o p r a c t o r s h a v e t h e statutory authority to diagnose s o m e c o n d i t i o n s . T h i s a u t h o r i t y fl o w s f r o m a provision of the Chiropractic Act that allows chiropractors to 'analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system.' ... The trial court ruled that the
Board's use of the word d i a g n o s i s w a s p r o p e r , reasoning in a decision letter that the 'ordinary meaning' of the word diagnosis is 'not different substantively from evaluation or analysis.' [TMA/TMB] have not appealed the court's ruling, so it stands. ... The issues on appeal are the extent of diagnosis permitted by the Chiropractic Act and whether the Board's scope-of-practice rule exceeded that scope."
"The trial court held that subsection (A) of Rule 75.17(d)(1) crossed the line. That s u b s e c t i o n a l l o w s chiropractors to diagnose 'the biomechanical condition of the spine or musculoskeletal system including, but not l i m i t e d t o ' s e v e r a l e x a m p l e s , s u c h a s ' t h e e x i s t e n c e o f s t r u c t u r a l p a t h o l o g y , f u n c t i o n a l p a t h o l o g y o r o t h e r abnormality of the system.'"
"TMA/TMB ... argued that the examples effectively authorize u n l i m i t e d d i a g n o s i s o f diseases ... rest[ing] their a r g u m e n t o n . . . t h e language ... 'include[e], but [are] not limited to' .... None of these concerns has merit."
"The opening phrase of subsection (A)--permitting 'diagnosis' . . . regarding the biomechanical condition of the spine or musculoskeletal s y s t e m ' . . . . t r a c k s t h e Chiropractic Act itself. ... Both [TMA/TMB's] and the trial court's definitions prove that d i a g n o s i s d o e s n o t
necessarily imply diagnosis of disease .... And even if diagnosis did imply diagnosis of disease, there is no reason to think that chiropractors are s t a t u t o r i l y b a r r e d f r o m diagnosing diseases per se, so long as the diseases also qualify as 'biomechanical conditions of the spine or musculoskeletal system.' Plenty of diseases meet this criterion, such as tendonitis, herniated disc, or rotator cuff tear."
TMA/TMB "objected below to the inclusion of 'nerves' in this definition. But appellees' own definition encompasses 'all of the muscles, bones, joints, and related structures, such as tendons and connective tissue, that function in the movement of the body parts and organs. Nerves are clearly one such 'related structure' that function in movement. As noted above, construction of a statute by the agency charged with its enforcement is entitled to deference by the courts if it is reasonable and consistent with the statutory language, especially when the statute involves complex subject matter within the agency's e x p e r t i s e . T h e B o a r d ' s definition of 'musculoskeletal system' plainly meets this standard for deference."
"TMA/TMB argued ... that the items listed under subsection ( A ) g a v e c h i r o p r a c t o r s e x c e s s i v e a u t h o r i t y t o diagnose. On its face, this is a strange conclusion, since the items in the list are specifically
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stated to be examples of 'biomechanical condition[s] of the spine and musculoskeletal system. And it is undisputed t h a t c h i r o p r a c t o r s m a y d iagnose b iomechan ica l conditions of the spine and musculoskeletal system, as t h e C h i r o p r a c t i c A c t s p e c i fi c a l l y m e n t i o n s them. ...TMA/TMB reached the opposite conclusion by viewing the examples in isolation. The argued ... that t h e e x a m p l e s p e r m i t ' d i a g n o s i s o f a n y a b n o r m a l i t y - - n o t j u s t abnormal b iomechanica l conditions."
"Here , subsec t ion (A) ' s seemingly broad references to 'pathology' and 'abnormality' of the musculoskeletal system must be interpreted in light of the fact that the provision c h a r a c t e r i z e s t h e m a s examples of biomechanical conditions. According to the plain language of the rule itself, these references are not free-standing authorizations to diagnose any pathology or a b n o r m a l i t y o f t h e musculoskeleta l system. Thus, a proper interpretation o f t he examp les unde r subsection (A) would read as follows: chiropractors may d i a g n o s e a ' s t r u c t u r a l p a t h o l o g y , f u n c t i o n a l p a t h o l o g y o r o t h e r a b n o r m a l i t y o f t h e biomechanical condition of the system.'"
The trial court's interpretation "leads to absurd results. To accept it, one must believe t h a t t h e B o a r d fl a t l y
contradicted itself in a single subsection: at the same time the Board was purporting to give specific examples of a general concept, it actually intended to smuggle far more expansive authorizations into the rule. ... In fact, the interpretation defended by TMA/TMB borders on an insinuation of dishonesty by the Board. By simply looking to context and imputing reasonable motives to the B o a r d , t h e m e a n i n g o f subsect ion (A) becomes clear--only biomechanical c o n d i t i o n s o f t h e musculoskeletal system may be d iagnosed. And that meaning is plainly consistent with the limits set by the Chiropractic Act."
".... the trial court believed that subsection (A) was overly broad in part because the list of examples was prefaced by the phrase 'including, but not limited to.' The trial court apparently thought that this phrase somehow threw the door open to inappropriate diagnoses. But its effect is far more innocuous. It merely indicates that what follows is a 'nonexclusive list of illustrative examples.'"
"In sum, neither subsection (A)'s opening phrase, its examples, or the transitional language in between causes the provision to slip beyond the boundaries set by the C h i r o p r a c t i c A c t . T h e provision should be upheld."
ALLOWING CHIROPRACTORS TO
DIAGNOSE SUBLUXATION COMPLEXES IS NOT CONTRARY TO THE
CHIROPRACTIC ACT.
" T h e C h i r o p r a c t i c A c t authorizes chiropractors to perform certain procedures 'to improve the subluxat ion c o m p l e x . . . o f t h e musculoskeletal system.' The A c t a l s o a u t h o r i z e s chiropractors to diagnose certain conditions, although the text does not expressly m e n t i o n s u b l u x a t i o n complexes. Interpreting these p r o v i s i o n s , t h e B o a r d authorized chiropractors to render a 'diagnosis . . . regard ing a subluxat ion complex of the spine or musculoskeletal system.' The Board defined a subluxation c o m p l e x a s ' a n e u r o m u s c u l o s k e l e t a l condition that involves two adjacent articular structures that may have functional or p a t h o l o g i c a l s e q u e l a e , causing an alteration in the b i o m e c h a n i c a l a n d / o r neurophysiological reflections of these articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them.'"
"The trial court struck down the prov is ion permi t t ing diagnosis of subluxation complexes. .. . TMA/TMB argued that this provision is invalid because it 'fails to restr ict diagnosis to the biomechanical condition of the spine and musculoskeletal
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system.' They worried that the B o a r d ' s d e fi n i t i o n o f 'subluxation complex' throws t h e d o o r w i d e o p e n , authorizing diagnosis of 'not only neurological conditions, a n d p a t h o l o g i c a l consequences that effect [sic] the spine and musculoskeletal system, but also any condition that might affect undefined and unlimited other body systems.'"
The Board however was correct to authorize the diagnosis of subluxation c o m p l e x e s , f o r t h e "Legislature's authorization to treat subluxation complexes n e c e s s a r i l y i m p l i e s a n authorization to diagnose them. There are two reasons for this conclusion. First, the concept of a subluxation c o m p l e x i s u n i q u e t o c h i r o p r a c t i c . T h e t e r m 'subluxation complex' is used exclusively by chiropractors, as a t tes ted by med ica l dictionaries. ... Indeed, TMA/TMB admitted in their motion for summary judgment that two of the three medical dictionaries they relied on c o n t a i n n o e n t r y f o r 'subluxation complex.' And a l t h o u g h t h e m e d i c a l profession sometimes uses t h e t e r m ' s u b l u x a t i o n ' , chiropractors and physicians a s c r i b e d t w o d i f f e r e n t meanings to the term. ... Thus, only chiropractors are q u a l i fi e d t o d i a g n o s e subluxation complexes."
"Second, the trial court's interpretat ion completely frustrates legislative intent.
The Chiropractic Act gives chiropractors a clear mandate t o t r e a t s u b l u x a t i o n complexes. ... But because the concept of a subluxation c o m p l e x i s u n i q u e t o c h i r o p r a c t i c , o n l y chiropractors are trained to understand and identify the c o n d i t i o n . T h u s , t h e Chiropractic Act creates a need that only chiropractors can meet. To hold that the Legislature did not impliedly a u t h o r i z e d i a g n o s i s b y chiropractors is to accuse the Legislature of demanding the impossible--treatment without diagnosis. ... the Legislature c l e a r l y i n t e n d e d f o r c h i r o p r a c t o r s t o t r e a t subluxation complexes. To e f f e c t u a t e t h a t i n t e n t , chiropractors must have the a u t h o r i t y t o d i a g n o s e subluxation complexes. An expl ic i t author izat ion to diagnose is unnecessary."
"As a practical matter, TMA/TMB's concern about the breadth of these provisions is overblown. On the face of the rule, the scope of diagnosis is c o n fi n e d t o t h e ' n e u r o m u s c u l o s k e l e t a l condition' of 'adjacent articular structures.' Although the definit ion of 'subluxation complex' goes on to note that a diagnosable condition may 'caus[e] an alteration in the b i o m e c h a n i c a l a n d / o r neurophysiological reflections' of 'other body systems,' this is a description of the effects (or symptoms) of a subluxation complex, not an expansion of t h e c o n d i t i o n s t h a t chiropractors may diagnose.
For example, pain is the most common symptom from which chiropractic patients seek relief. But pain is just a 'neurophysiological reflection' of a 'body system' that may be c a u s e d b y t h e ' n e u r o m u s c u l o s k e l e t a l condition' of 'adjacent articular structures,' such as spinal vertebrae. In short, upholding these provisions will not open t h e d o o r t o u n l i m i t e d diagnosis by chiropractors."
BOARD RULES DO NOT UNCONSTITUTIONALLY
FAVOR "ONE SCHOOL OF MEDICINE OVER
ANOTHER"
The TMA/TMB argued that the Board's scope-of-practice rule v i o l a t e s t h e T e x a s Constitution. "Our Constitution states that 'no preference shall ever by given by law to any schools of medicine." It would seem to this editor, then, that our medical cousins DO recognize chiropractic as a "school of medicine." They believe "the rule authorizes chiropractors to practice medicine without a medical license, thereby giving them
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"Our Constitution states that 'no preference shall ever by given by law to any schools of medicine." --TMA/TMB
It seems to this editor that our medical cousins DO recognize chiropractic as a "school of medicine."
a n u n c o n s t i t u t i o n a l 'preference' over [medical] physicians."
"This argument rests on a false premise. As Texas courts have consistently held, only fields that diagnose and treat conditions of the entire body must be treated equally. ... Ch i roprac to rs may on ly diagnose and treat certain c o n d i t i o n s o f t h e 'musculoskeletal system.' While perhaps not as spatially limited as dentistry or podiatry, this scope of practice still falls far short of encompassing the entire body. Chiropractors are not authorized to diagnose or treat [diseases or] conditions afflicting the vast majority of the body's organ systems, including the cardiovascular, r e s p i r a t o r y, d i g e s t i v e , reproductive, and endocrine systems."
CONCLUSION
"Fundamentally, the trial court erred by construing the Chiropractic Act too narrowly and the Board's scope-of-practice rule too broadly. Proper ly const rued, the Ch i rop rac t i c Ac t a l l ows chiropractors to perform MUA and needle EMG and to d i a g n o s e s u b l u x a t i o n complexes. And the provision of the scope-of-practice rule gove rn i ng d i agnos i s o f biomechanical conditions is consistent both internally and with the Chiropractic Act. For these reasons, the portions of the trial court's judgment striking down parts of the
Board's scope-of-practice rule should be reversed and judgment should be rendered for the Board and TCA."
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Governor Seeks Agency ConsolidationsT h e A u s t i n A m e r i c a n Statesman REPORTS HERE that "Gov. Rick Perry will ask t h e L e g i s l a t u r e … t o indefinitely suspend funding for four Texas agencies and consolidate the functions of dozens more as part of a sweeping budget plan that would make deep spending reduct ions across s ta te government."
"Two smaller agencies, the B o a r d o f P r o f e s s i o n a l Geoscientists and the Board o f P r o f e s s i o n a l L a n d Surveying — which oversee licensing requirements for people in those professions — would also disappear under a
l i s t o f " s u s p e n s i o n s /consol idat ions" that wi l l accompany the governor's budge t p roposa l to the Legislature …."
"Taken together, the proposals to zero out funding for some agencies while consolidating others would save the state about $50 million."
"Besides the four agencies that would go away, Perry would target at least 21 agencies for consolidation and put their responsibilities into 11. He would put the Texas Facilities Commission, which oversees government buildings, into the General Land Office, for example."
"Perry would also create a new Heal th Profess ions Agency, and fold into it a variety of agencies that oversee health professionals — including the Texas Medical Board, the Texas Board of Chiropractic Examiners, the Texas Board of Nursing and t h e B o a r d o f D e n t a l Examiners."
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Appeals Court Reverses Decision on Vertebral Artery DissectionA new ly repo r ted l ega l decision reports on an appeal "from a judgment entered ... for personal in jur ies . . . a l l e g e d l y c a u s e d b y
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Perry would also create a new Health Professions Agency, and fold into it a variety of agencies that o v e r s e e h e a l t h professionals — including the Texas Medical Board, t h e Te x a s B o a r d o f Chiropractic Examiners, the Texas Board of Nursing and t h e B o a r d o f D e n t a l Examiners.
chiropractic manipulation.” The court states “... We need only address that which involves whether he had a duty to inform ... of the chance of suffer ing a dissected ver tebra l a r te ry f rom a cervical spine manipulation. We reverse and render judgment.'"
The court stated "Simply put, the injury suffered ... was not an inherent risk of which [the doctor] had a duty to disclose at the time. ... we sustain [the doctor's] contention that he had no duty to inform ... of the potential for arterial dissection before administering the spinal manipulation, reverse the trial court's judgment, and render judgment denying ... recovery ...."
"'[c]urrent medical literature indicates that it is highly unlikely, if not impossible, for a cervical spine manipulation to injure a healthy vertebral artery.' He also stated that for the manipulation to have c a u s e d t h e d i s s e c t i o n suffered ... one of two other circumstances would have had to exist or occur. First, [the] vertebral artery would have to have been unhealthy or, second, the manipulation would have to have been applied improperly. From this, we see that the potential for a dissection of the vertebral artery arose only when some other factor or condition was present. If neither of those additional indicia was present, the manipulation would not have resulted in an arterial dissection. So, the potential
for the latter to occur did not exist in the procedure itself; nor was it inseparable from the procedure."
“Simply put, the injury suffered by [the patient] was not an inherent risk of which [the doctor] had a duty to disclose at the time. To the extent that the jury found otherwise, it erred as a matter of law."
"...we sustain [the doctor's] contention that he had no duty to inform ... of the potential for arterial dissection before administer ing the spinal manipulation...."
The full legal opinion may be FOUND HERE.
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Appeal Your Denied Insurance ClaimsThe American Chiropractic A s s o c i a t i o n ( A C A ) encourages providers and their patients to appeal denied health insurance claims.
While this seems l ike a fruitless task, there is some encouraging news. The Ohio Department of Insurance recently reported that patients a n d p r o v i d e r s i n O h i o r e c o v e r e d m o r e t h a n $900,000 as a result of claim appeals in 2009. Much of this is due to the Ohio Patient Protection Act, which gives Ohio citizens the opportunity
to request an independent external review for denial, reduction or termination of certain healthcare services by their health insurers.
Insurers may then be required to provide for an external review by an accredited i n d e p e n d e n t r e v i e w organization or allow the consumer to request a review by the Ohio Department of Insurance.
It is interesting to note, that the greates t number o f reviews were for surgery, oncology, psychiatry, and chiropractic.
State Insurance Departments provide consumers and health care providers with an easy method to file complaints, which are usually reviewed in a prompt manner.
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TCA at the CapitolThe Texas Ch i rop rac t i c Association hosted a TCA Day at the Capitol on Tuesday, January 25, 2011.
Doctors from around Texas, and bus loads of students f rom Parker Co l lege o f Chiropractic and the Texas C h i r o p r a c t i c C o l l e g e converged on the Capitol of Texas today to share the chiropract ic profession ʼs m e s s a g e w i t h T e x a s Legislators.
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Several hundred attended the TCA lunch reception and heard the legislative message a n d s t r a t e g i e s o f t h e chiropractic profession. Many hundreds more legislative members and their staff attended the legislative dinner and recept ion later that evening.
Some of the key points that chiropractors shared with their legislators included pointing out that Texans should have the right to choose their own health care provider, and that Chiropractic care is both safe and results oriented health care.
Being the third largest primary health care profession nationally, recent research has ind icated and r e p o r t e d t h e safety, the positive results, and the cost effectiveness of chiropractic care.
Recently the medical profession has taken aim at the chiropractic profession in hopes of denying chiropractic doctors the right to diagnose, and to perform medical testing that they deem is within their scope of practice.
The medical profession has made it clear that they desire, and intend to achieve, being n a m e d t h e e x c l u s i v e gatekeeper for the health care decisions of Texans and of Americans.
Chiropractic care may not be for everyone, but millions of Texans prefer a health care profession that does not rely excessively upon drugs or s u r g e r y . T h e T e x a s Chiropractic Association has always believed, and fought for, the right of Texans to have the ability to choose their own health care provider. It was this message that many of the c h i r o p r a c t o r s i n Te x a s converged upon the Texas legislature to share with their elected representatives.
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“Overturn of Health Care Reform” AppealedHealth care reform legislation, assailed as an abuse of federal power in a 26-state l a w s u i t , w a s r u l e d unconst i tut ional by U.S. District Judge Roger Vinson in Pensacola, Florida.
Vinson ruled the entire law "void" because the individual mandate provision can't be
separated out from the rest of the law.
V i n s o n ʼs r u l i n g w i l l b e appealed to the U.S. Court of Appeals in Atlanta. A federal appeals court in Richmond, Virginia, is already slated in May to hear challenges to two confl ic t ing federa l cour t rulings in that state, one of which upheld the legislation while the other invalidated part of it. The U.S. Supreme Court may ultimately be asked to consider the issue.
"Other states that have joined the lawsuit are: Alabama, Alaska, Arizona, Colorado, Georgia, Indiana, Idaho, Iowa, Kansas, Louisiana, Maine, M i c h i g a n , M i s s i s s i p p i , Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, S o u t h C a r o l i n a , S o u t h D a k o t a , Te x a s , U t a h , Washington, Wisconsin and Wyoming . The Nat iona l Federation of Independent Business is also part of the lawsuit.
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A Summary of Legal Challenges to Health ReformA s m o s t k n o w a k e y component of Health care Reform--the Affordable Care Act (ACA)--is the provision that becomes effective in 2 0 1 4 r e q u i r i n g m o s t individuals to purchase health insurance or pay a penalty. The Act also significantly
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expands health insurance coverage to the uninsured t h r o u g h t h e M e d i c a i d program. Since passage of the Act, numerous lawsuits have been filed and are winding their way to the Supreme Court of the United States.
"Section 1501 of Title I of the ACA requires that most individuals maintain minimum essential health insurance coverage for themselves and their dependents. Those who fail to do so will be required to pay a penalty, administered through the tax code for each month of noncompliance," the American Medical Association reports.
"Qualified individuals will be provided subsidies to help pay for their premiums and cost-sharing,” the AMA reports. “Others will be exempt from the ind iv idua l mandate , including those with qualifying religious exemptions, those in a health care sharing ministry, i nd i v idua ls no t l aw fu l l y present in the United States and incarcerated individuals. No penalty will be imposed on t h o s e w i t h o u t h e a l t h insurance coverage for less than 90 days, members of Indian tribes, individuals whose household income does not exceed 100 percent of the federal poverty level (FPL), or any individual who is determined by the secretary o f H e a l t h a n d H u m a n Services to have suffered a hardship with respect to being a b l e t o o b t a i n h e a l t h
insurance coverage under a qualified health plan."
T h e A m e r i c a n M e d i c a l Associat ion states "The ind iv idua l mandate i s generally consistent with AMA policy, which states that individuals and families earning greater than 500 percent of FPL should be required to obtain health insurance coverage for at least catastrophic health care and evidence-based p r e v e n t i v e h e a l t h care ." [emphasis added] "AMA policy also supports using the tax structure to achieve compliance," they state.
"Beginning in 2014 or earlier if the state chooses, nonelderly, nonpregnant individuals with income below 133 percent of FPL will be newly eligible for Medicaid. The Act also adds new mandatory benefits that states must cover. From 2014 t o 2 0 1 6 , t h e f e d e r a l government will cover 100 percent of the Medicaid costs o f these new ly e l i g ib le i n d i v i d u a l s , w i t h t h e percentage dropping to 90 pe rcen t and the s ta tes covering the difference by 2020. AMA policy supports maintaining Medicaid as a safety net program and covering all individuals with incomes below the poverty level," the AMA states.
Several law suits have been brought in the process of health care reform. The AMA summarizes the major cases in this way:
Commonwealth of Virginia v. Sebelius (U.S. District Court, Eastern District of Virginia)
"On Dec. 13, 2010, in the first r u l i n g a g a i n s t t h e c o n s t i t u t i o n a l i t y o f t h e individual health insurance m a n d a t e , J u d g e H e n r y Hudson held that the ACA's mandate that all individuals m u s t p u r c h a s e h e a l t h insurance or pay a penalty is unconstitutional.”
“This ruling, however, is limited to Section 1501 of the ACA (the minimum essential coverage provision). And because the ACA does not i n c l u d e a s e v e r a b i l i t y provision (i.e., maintaining the rest of the statute when one provision is determined to be u n c o n s t i t u t i o n a l ) , h e e x e r c i s e d h i s j u d i c i a l discretion to sever Section 1501 from other provisions of the law. Judge Hudson also declined to issue an injunction blocking the entire law, noting that the mandate does not take effect until 2014, and that his ruling would most likely not be the final word on this issue.”
“Fur ther, Judge Hudson rejected the government's claims that the ACA was valid under the Const i tut ion's ʻnecessa ry and p rope r ʼ clause, and that the penalty for failing to obtain health insurance is a tax that could be upheld under the ʻgeneral welfareʼ clause. This case most likely will be appealed to
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the U.S. Court of Appeals for the Fourth Circuit."
State of Florida v. U.S. Department of Health and Human Serv ices (U .S . District Court, Northern District of Florida)
"This lawsuit was brought by 13 states (there are now 20 participating states and the N a t i o n a l F e d e r a t i o n o f I n d e p e n d e n t B u s i n e s s ) c h a l l e n g i n g t h e c o n s t i t u t i o n a l i t y o f t h e individual health insurance mandate and the expansion of Medicaid. See the previous a r t i c l e F e d e r a l J u d g e O v e r t u r n s H e a l t h C a r e Reform.
Thomas More Law Center v. Obama (U.S. District Court, E a s t e r n D i s t r i c t o f Michigan)
"On Oct. 7, 2010, Federal District Court Judge George Steeh dismissed this case, and found the individual mandate constitutional under the commerce clause. This case has been appealed to the U.S. Court of Appeals for the Sixth Circuit."
Liberty University, Inc. v. Geithner (U.S. Distr ict Court, Western District of Virginia)
"On Nov. 30, 2010, Federal District Court Judge Norman M o o n r u l e d t h a t t h e r e q u i r e m e n t t h a t m o s t Americans obtain health insurance coverage fal ls within Congress' authority to
regulate interstate commerce. This case has been appealed to the U.S. Court of Appeals for the Fourth Circuit."
"After the Courts of Appeals issue their rulings, it is widely e x p e c t e d t h a t t h e constitutional challenges to the ACA ultimately will be determined by the U.S. Supreme Court, most likely this year or in 2012," the AMA reports.
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Congress Proposes to Expand Chiropractic to Veterans and their BeneficiariesNewly introduced legislation in t h e U . S . H o u s e o f Representatives is intended to expand the availability of the s e r v i c e s d e l i v e r e d b y
chiropractic physicians in the f e d e r a l D e p a r t m e n t o f Veterans Affairs (VA) and to those who utilize the militaryʼs health care delivery system, T R I C A R E , r u n b y t h e Depar tmen t o f De fense (DoD).
Ranking member of the House Ve te rans A f fa i r s Committee, Rep. Bob Filner ( D - C a l i f . ) , h a s a g a i n introduced the Chiropractic Care to All Veterans Act (H.R. 329), a bill similar to l e g i s l a t i o n t h a t w a s overwhelmingly passed by the entire House in 2010 but was not considered in the Senate.
H.R. 329 would require the VA to have a chiropractic physician on staff at all major VA medical facilities by 2014. It would also amend the c u r r e n t s t a t u t e , t h e Department of Veterans Affairs Health Care Programs Enhancement Act of 2001, ensuring that chiropractic benefits are included in the U . S . C o d e o f F e d e r a l Regulations and therefore, cannot be denied.
“Our nationʼs veterans and active-duty military, along with their family members, have sacrificed so much for our country. They deserve the best health care available, and that includes chiropractic care,” said ACA President Rick McMichael, DC. “I t makes me proud to see the c h i r o p r a c t i c p r o f e s s i o n w o r k i n g w i t h o u r congressional allies in support of this important legislation.”
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H.R. 329 would require the VA to have a chiropractic physician on staff at all major VA medical facilities by 2014. It would also amend the c u r r e n t s t a t u t e , t h e Department of Veterans Affairs Health Care Programs Enhancement Act of 2001, ensuring that chiropractic benefits are included in the U . S . C o d e o f F e d e r a l Regulations and therefore, cannot be denied.
T h r o u g h p r e v i o u s c o n g r e s s i o n a l a c t i o n , chiropractic care is now available at 36 VA facilities across the country; however, in the more than 100 major VA medical facilities without a chiropractic physician on staff, the chiropractic care benefit Congress authorized for Americaʼs veterans remains virtually nonexistent. Detroit, Denver, and Chicago are a few of the major metropolitan a r e a s s t i l l w i t h o u t a chiropractic physician at the local VA medical facility.
A 2010 report f rom the V e t e r a n s H e a l t h Administration indicates that over half of all veterans returning from the Middle East and Southwest Asia who have sought VA health care were t r e a t e d f o r s y m p t o m s a s s o c i a t e d w i t h musculoskeletal ailments – the top complaint of those tracked for the report.
In addition, Rep. Mike Rogers (R-Ala.) has re-introduced another piece of legislation in the House that would extend chiropractic care to U.S. military retirees, dependents and survivors as part of the TRICARE program. H.R. 409, the Chiropractic Health Parity for Military Beneficiaries Act, would require the Secretary of Defense to develop a plan to allow any beneficiary covered under TRICARE to select and have direct access to a chiropractic physician. The plan deadline is Aug. 31, 2011. Currently, only active
duty members are afforded the chiropractic benefit.
H.R. 409 defines “chiropractic s e r v i c e s ” a s d i a g n o s i s (including X-ray and tests), evaluation and management, and therapeutic services for t h e t r e a t m e n t o f neuromusculoskeletal health conditions. The legislation s p e c i fi c a l l y n o t e s t h a t chiropractic services may only be provided by a chiropractic phys ic ian . Rep. Rogers introduced nearly identical legislation in the past two sessions of Congress.
Chiropractic doctors are urged to contact their congressional representatives and request that they cosponsor both of these bills.
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ERISA Class Action Against UnitedHealth GroupOn Feb. 8, 2011, the Board of the Congress Of Chiropractic State Associations (“COCSA”) voted to join a national ERISA Class Action against U n i t e d H e a l t h G r o u p t o c h a l l e n g e o v e r p a y m e n t recoupment abuses.
The action was originally filed o n J a n . 2 4 , 2 0 1 1 b y Pomerantz Haudek Grossman & Gross LLP on behalf of a group of chiropractors, and the Ohio State Chiropractic
A s s o c i a t i o n ( O S C A ) . Pomerantz seeks to represent a nationwide class of all health care providers who have been subjected to i m p r o p e r d e m a n d s b y UnitedHealth Group to repay previously paid health care benefits for services provided t o U n i t e d H e a l t h G r o u p subscribers, only to have such funds forcibly recouped by the w i t h h o l d i n g o f f u t u r e payments from unrelated claims in alleged violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), the Federal law governing private employee benefit plans.
The latest Class Act ion against UnitedHealth Group is the third national class action filed by Pomerantz, following similar litigations brought against Aetna and 23 Blue Cross Blue Shield entities filed within the last two years. Initial court rulings have been favorable to provider plaintiffs.
UnitedHealth Group is the nation's largest private health plan by revenue. The action alleges that the post-payment audit and review process as applied by the Defendants violates ERISA in that its repayment demands are retroactive adverse benefit determinations that particular services are not covered under the terms of the United and Health Net health care plans, but without proper appeals or other protections otherwise available under ERISA for both self-funded and fully insured health care
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“ERISA es tab l i shes the procedures that insurance companies must follow when making benefit determinations – whether prior to payment or retroactively,” said Plaintiffs' counsel, D. Brian Hufford of Pomerantz. “The Defendants here, as is true for many insurance companies, are v i o l a t i n g t h e i r E R I S A obligations in order to recover funds that simply do not belong to them."
A copy of the official Class Action Complaint against UnitedHealth Group can be f o u n d a t h t t p : / /w w w . e r i s a c l a i m . c o m /UHC_Complaint.pdf
On Jan. 24, 2011, a Federal district court in Chicago dismissed BCBSʼs state law counterclaims against one of the plaintiff chiropractors in the largest ERISA class action brought against 23 BCBS entities filed in 2009, after the court upheld the ERISA claims on May 17, 2010, in denying Defendantsʼ motion to dismiss.
On October 27, 2010, a Federal district court ruled against BCBS of Rhode Island which was seeking to pursue state law claims for more than $400,000 against a chiropractic physician and an occupational therapist, finding tha t ERISA “comple te ly preempts,” supersedes and limits BCBSRI overpayment recoupment practices.
The court reaffirmed this decision on Jan. 19, 2011, in denying BCBSRIʼs motion to reconsider its earlier ruling on
f e d e r a l s u b j e c t m a t t e r jurisdiction and denying its parallel motion to certify the Courtʼs interlocutory order for immediate appeal to the First C i r c u i t . A P r e l i m i n a r y Injunction against BCBSRI was issued by the court on Nov. 11, 2010 to force it to halt its ongoing recoupment of new benefit payments."
“The Congress of Chiropractic State Associations, COCSA, was formed in the late 1960ʼs a n d i s a n o t - f o r - p r o fi t organization consisting of state chiropractic associations in all 50 states. The mission of the Congress is to provide an open, nonpartisan forum for t h e p r o m o t i o n a n d a d v a n c e m e n t o f t h e c h i r o p r a c t i c p r o f e s s i o n through service to member state associations. COCSA will lead the profession in c o m p l i a n c e w i t h n e w h e a l t h c a r e r e f o r m l a w, PPACA and existing federal l aw, ERISA, fo r p roper reimbursement."
The Texas Ch i rop rac t i c Association is an active participant in COCSA.
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Medicare "Float" Nets Insurance $1/3 BillionPrivate health insurance plans c a t e r i n g t o M e d i c a r e recipients are making millions b y t a k i n g m o n e y t h e government sends and using i t to make investments, federal investigators say.
T h e A s s o c i a t e d P r e s s reported that in financial parlance, it's called “playing the float." Medicare lets its plans keep the cash the AP noted.
"An audit by the Health and Human Services inspector general's office estimates that private Medicare Advantage plans collected $376 million from investment income on advance payments from the government in 2007, the latest year available."
"Of 50 plans audited, only two told investigators that they s u b t r a c t e d i n v e s t m e n t earnings from their Medicare bids for the following year. T h e r e s t p o c k e t e d t h e money."
"Medicare typically pays the plans 46 days before they need the money to cover medical services, the audit found."
27 Texas Journal of Chiropracticwww.chirotexas.org
"If Medicare had hung on to the money for a few more weeks, the program's trust funds could have collected $450 million in interest income from the Treasury, auditors estimated."
"Having Medicare pay on the fi rs t o f the mon th i s a headache for the Treasury, which also sends out Social Security checks at that time. But Medicare says it can't change the date without getting Congress to sign off."
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Medical Marketing MachineMed ica l Doc to r George Lundberg, Editor-at-Large for MedPageToday, REPORTS HERE that "'the MBA has done more to harm the public through bottom-line hospital administration than have many dread diseases'."
" O n e o f m y f a v o r i t e journalists, Maggie Mahar, has been writing about the stent problem as well as many o the r ove ruses o f TOL (technology for lucre)[sic], in co lumns and her book , Money Driven Medicine, for many years."
"And Dr. Nortin Hadler, a professor at UNC in Chapel Hill has a number of books that document the mass misbehavior of American medicine at large for many years."
"The problems conclude that the overuse and misuse of medical procedures is so widespread as to now be accepted as 'conventional wisdom' and institutionalized as 'standard of practice'".
"The academic med ica l centers are the worst," says Medical Doctor Lundberg, "because they posture as presenting the best medical science while practicing as the largest generator of the mos t r evenue f o r t he i r institutions."
"And they thereby teach the students and residents to emulate them, doing with great competence loads of procedures that don't need to be done at all."
" D o n ' t c o n t i n u e t o b e entrapped by the AMMM, the American Medical Marketing Machine. That's my opinion. I'm Dr. George Lundberg, At Large for MedPage Today."
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AMA Survey Shows Public LESS Confused Regarding ChiropracticT h e A m e r i c a n M e d i c a l Association states that "A new survey announced by the AMA shows that … many are c o n f u s e d a b o u t t h e qualifications of health care professionals."
" A p h y s i c i a n - l e d t e a m approach to care with each member of the health care team playing the role they are educated and trained to play is key to ensuring patients receive high-quality care, and most Americans agree," AMA Board of Trustees member Rebecca Patchin, MD, said.
The AMA reports that 90% of the respondents believe that a "physician's additional years of medical education and training (compared to a nurse practi t ioner) are vital to o p t i m a l p a t i e n t c a r e , especially in the event of a compl icat ion or medical emergency."
They state that 83% of respondents said "they prefer a physician to have primary responsibility for the diagnosis and management of their health care." Notice that their focus is shifting from the diagnosis of disease to the diagnosis and management of health care.
28Texas Journal of Chiropractic www.chirotexas.org
The overuse and misuse of medical procedures is so widespread as to now be accepted as 'conventional wisdom' and institutionalized as 'standard of practice.
D o n ' t c o n t i n u e t o b e entrapped by the AMMM, the American Medical Marketing Machine.
In the 2008 survey, the AMA reports, 38% believed that a doctor of chiropractic was a medical doctor, 53% knew that they were not, and 9% were not sure. The 2010 follow up survey reports that NOW only 31% believe that a doctor of chiropractic is a medical doctor, 64% know that they are not, and only 6% are unsure.
Of the healing arts listed in t h e s u r v e y d e n t i s t r y demonstrated, and continues to demonstrate that some 70% or more respondents believe that they are medical doctors. A similar number believe podiatrists are MDs as wel l . Nearly hal f of the respondents believed, and still do, that optometrists are MDs. Sl ight ly fewer than hal f believe physchologists are MDs.
Doctors of nursing practice, a n d a u d i o l o g i s t s e a c h demonstrate about 30% of the respondents believing that t h e y a r e M D s . N u r s e practitioners and PTs have
about 20% who believe that they are MDs.
The survey also found that 70 t o n e a r l y 9 5 % o f t h e respondents believe that ONLY MDs should be allowed to perform: foot amputations, eye surgery requir ing a scalpel, facial surgery, drug therapy for chronic pain, the use of medication for mental c o n d i t i o n s , u s e s p i n a l injections to treat chronic pain, administer and monitor anesthesia before and during surgery, and commit persons for psychiatric care against their will.
Says the AMA: 91% in 2008 and 93% in 2010 said that "only licensed medical doctors should be able to use the title 'physician'."
In 2008 48%, as opposed to 51% in 2010, state "It is easy to identify who is a licensed medical doctor and who is not by reading what services they offer, their title, and other l i cens ing c redent ia ls in advertising or other marketing materials."
It also seems that support is waning for "legislation in your state to require all health care advertising materials to clearly d e s i g n a t e t h e l e v e l o f education, skills and training o f a l l h e a l t h c a r e professionals promoting their services." 93% supported such measures in 2008, only 87% support it in the 2010 survey.
Both the 2008 and the 2010 surveys were conducted on behalf of the "Scope of Practice Partnership" and surveyed only "850 adults nationwide." A 3.4% margin of error is reported.
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General Anesthesia--not Sleep, ComaMedscape.com reports that " D e s p i t e w h a t anesthesiologists may tell surgery patients, the brain under general anesthesia is not "asleep," it is placed in a reversible drug-induced coma, according to 3 neuroscientists w h o r e v i e w e d a n d s y n t h e s i z e d t h e l a t e s t r e s e a r c h i n g e n e r a l anesthesia, sleep, and coma."
"Anesthesiologists use the term 'sleep' so as not to scare p a t i e n t s w i t h t h e w o r d 'coma' .... In reality, however, general anesthesia is a type of coma."
"General anesthesia, the scientists say, is functionally equivalent to brainstem death, and perhaps explains why some patients do not fully recover consciousness for several hours after general anesthesia, as well as why pos tope ra t i ve cogn i t i ve dysfunction could persist in elderly patients for several months afterward."
29 Texas Journal of Chiropracticwww.chirotexas.org
The authors "hope their article will facilitate more informed d i s c u s s i o n s a m o n g anesthesiology, sleep, and coma researchers and lead to new approaches to creating t h e s t a t e o f g e n e r a l anesthesia, sedation, and s l e e p , a s w e l l a s n e w approaches to facilitating coma recovery. They hope it w i l l a lso lead to bet ter education of the public about general anesthesia."
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Humana VictoryThe American Chiropractic Association reports that "ACA, in collaboration with the K e n t u c k y C h i r o p r a c t i c Association, has led a long-fought effort against Humana and its network, Healthways. "
"Humana was fined $100,000. This is typical of the amount o f fines i ssued by th i s DOI. ...the order reflect[s] the complaints brought by the ACA and KAC, including:
• subjecting providersʼ claims to UR based on d i s c r i m i n a t o r y geographic location
• i n c o r r e c t l y c o d i n g chiropractic claims and m i s r e p r e s e n t i n g network and negotiated reimbursement rates
• forcing providers to participate in all plans a s a c o n d i t i o n o f
participation with one plan
• failing to provide a grievance procedure that provides notice in a c c o r d a n c e w i t h statutory time frames
• doing business with unlicensed TPAs and f a i l i n g t o n o t i f y enrollees of the identity of and their relationship with these TPAs
• improper ly denying claims that were sent to Humana instead of to the TPA (providers were inappropriately instructed by customer service reps)
• issuing EOBs that were misleading and did not provide a reasonable explanation related to claim resolution
• failing to notify the Office of Insurance of U R p o l i c y a n d procedure changes"
"We are hopeful that we have sent a strong message to Humana that the chiropractic profession must be listened to and that turning a deaf ear to us is not a good idea."
Says the order: "WHEREAS, the Kentucky Department of Insurance [hereinafter, "DOl" or "Department"] conducted an on-site Target Market Conduct Examination of the activities of Humana for the time period of October 1, 2008 through September 30,
2009 ....; WHEREAS, the Market Conduct Examination Report alleged deficiencies the Company's business practices as follows:
(1) The Company subjected providers' claims to utilization management review based on discriminatory geographic location;
(2) The Company incorrectly coded chiropractic claims and misrepresented the network a n d n e g o t i a t e d reimbursement rates;
(3) The Company failed to retain and/or produce records fo r examina t i on by the commissioner including a complete and accurate listing of all providers and their contracts, filed policies, and other documents;
(4) The Company required providers to participate in all plans offered as a condition to participation in any health plan offered;
(5) The Company failed to file provider contracts and other forms with the Department;
(6) The Company failed to disclose the internal and ex te rna l appea l r ev i ew procedures and failed to file such procedures with the Department. The Company failed to develop a grievance procedure that offers notice in accordance with statutory time frames;
(7) The Company entered into business arrangements with
30Texas Journal of Chiropractic www.chirotexas.org
unlicensed administrators. The Company also failed to provide notice to insureds advising them of the identity of , and the relat ionship between, the third party a d m i n i s t r a t o r s a n d t h e insurer;
(8) The Company failed to identify the correct insuring entity on members' ID cards;
(9) The Company improperly denied and rejected claims sent directly to Humana instead of the appropriate TPA;
(10) The Company issued EOBs that were misleading and confusing and failed to p r o v i d e a r e a s o n a b l e explanation related to the claim resolution;
(11) The Company failed to hold the member harmless after claim settlement;
(12) The Company failed to file changes to the utilization and review pol icies and p r o c e d u r e s w i t h t h e Department."
"NOW, THEREFORE, after consideration and review of t h e M a r k e t C o n d u c t E x a m i n a t i o n R e p o r t o f Humana, it is ORDERED .... that Humana shall continue to establ ish and implement procedures to correct the deficiencies and violations noted in the Report. The Department wi l l conduct another target exam in 2011 to review Humana's corrective a c t i o n . I t i s f u r t h e r
ORDERED .... that Humana shall pay a civil penalty in the amount of one hundred t h o u s a n d d o l l a r s ($100,000.00). The Company shall be subject to additional penalties should the future target examination referenced herein reveal further violations of the Kentucky Insurance Code. It is further ORDERED that the terms of this Order shall not limit, inhibit, or restrict the DOl's ability to i n v e s t i g a t e i n d i v i d u a l complaint files, regardless of their sources, which may involve Humana; nor shall this Order limit, inhibit, or restrict in any manner the Office's ability to take disciplinary action against Humana for a n y p r o v e n v i o l a t i o n s ident ified through the course of any specific i n d i v i d u a l investigation."
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Chiropractic Still Ranks High Among Career ChoicesAs reported in the W a l l S t r e e t J o u r n a l , chiropractic ranked 56 out of 200 career choices in a list of The Best and Worst Jobs.
"The data ... rated jobs based o n i n c o m e , w o r k i n g environment, stress, physical demands and job outlook. Chiropractors scored higher
than several other healthcare p ro fess iona ls , inc lud ing physical therapists (70), physician assistants (89), dentists (97), and registered nurses (100)."
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Doctor Shortage Stats.T h e A m e r i c a n M e d i c a l Association states:
"We anticipate a deficiency of at least 125,000 physicians by 2025."
"Already, 22 states and 17 m e d i c a l s p e c i a l t y societies are reporting
shortages."
"For decades, we have watched the p h y s i c i a n population move in to c i t ies and h igh -popu la t ion
areas, leaving vast a r e a s o f t h i s country woeful ly underserved."
"There still is a primary care shortage -- at least partially because pay differentials for primary care physicians make i t even more
difficult to repay medical s c h o o l d e b t s , w h i c h
average $155,000."
"And then there is 2014, the year of shrinking access. That year, when the full provisions of the health reform law kick in, we will see 32 million more
31 Texas Journal of Chiropracticwww.chirotexas.org
patients -- people who up to now have been uninsured and often without a physician."
"If all that isn't enough, HHS estimates that a third of today's practicing physicians will retire during the next decade."
"Although medical school t u i t i on rema ins a huge stumbling block, especially for minorities, first-year medical students are on the increase -- predicted to be up 21% by 2 0 1 3 o v e r 2 0 0 9 . M a n y p r o g r a m s a r e g r o w i n g ; moreover, nearly two dozen new medical schools have opened, sought accreditation or been announced in the past three years."
"The 2009 stimulus package a n d h e a l t h r e f o r m l a w des ignated near ly $300 million for the NHSC to fund primary care practitioners. NHSC plans to have nearly 11,000 clinicians caring for more than 11 million people by the end of this year, a threefold increase since 2007."
"Individual medical schools also are taking steps to build physician populat ions in underserved areas. One example is the new Texas Tech Paul L. Foster School of Medicine in El Paso, which aims to supply physicians for El Paso, the Texas-Mexico border area and west Texas. Currently, this region has fewer than half the national average of 254 doctors per 100,000 residents."
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COLLEGE
Parker Students Invite You to Recycle to Support ChiropracticS t u d e n t s a t P a r k e r Chiropractic College have developed a fundraiser project to raise funds for the support of the chiropractic profession. The students have teamed with TerrCycle at http:/ /www.terracycle.net to offer f r e e w a s t e c o l l e c t i o n programs for hard to recycle materials which are then turned into affordable green products. Products for sale c a n b e f o u n d a t t h e Terracycle.net website.
Terracycle operates to collect waste products. You will be shipped prepaid postage l a b e l s a n d c o l l e c t i o n ma te r ia l s . Once you ʼve collected enough packets or packages to fill the collection b a g , a f fi x t h e p r e - p a i d postage label. Drop it off at a UPS location. You will also be able to print your own labels
off of the website if you already have a box that youʼd like to collect your items in. Go to www.terracycle.net to find out more info.
Recyclable items may be dropped off at Parker College of Chiropractic by contacting: Rebekah Gagnard (Tr i2 S t u d e n t ) –[email protected] or 318.613.9585.
Join the “Parker Patriots” An invitation code will then be emailed for you to join the team, w i th money f rom recyclable items donated to TCA PAC Defense Fund.
TCC partners with Logan, Parker to form ICONTexas Chiropractic College is exci ted to announce i ts pa r tne rsh ip w i th Logan College of Chiropractic and Parker College of Chiropractic and the formation of a new c o l l a b o r a t i v e r e s e a r c h program, the Integrat ive C h i r o p r a c t i c O u t c o m e s Network (ICON).
"ICON is a practice-based research network (PBRN),
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which the U.S. Agency for Healthcare Research and Quality defines as a group of c l in ic ians and pract ices w o r k i n g t o g e t h e r i n ambulatory care to answer community-based healthcare quest ions and t rans la te r e s e a r c h fi n d i n g s i n t o practice."
"For ICON, each partner does w h a t t h e y d o b e s t : practitioners provide their customary excellent care, and the research team collects and analyzes data to answer important research questions. Data collection is streamlined t o a v o i d i n t r u d i n g i n t o individual practices."
"To be a success, ICON needs the assistance of as many doctors of chiropractic from across the country as possible, not just the alumni of TCC, Parker, and Logan. T h e r e a r e n o c o s t s t o practitioners involved in the P B R N , a n d c o n t i n u i n g education credits may be available in some states for t h e t r a i n i n g p o r t i o n o f participants."
"ICON is unique in that the goal is not only to enhance the health of the public but to contribute to the evidence b a s e r e l a t e d t o h e a l t h p r o m o t i o n a n d d i s e a s e prevention."
"The first project will collect c ross-sect iona l da ta on p a t i e n t s p r e s e n t i n g i n participating offices for one week. It involves a brief form patients complete only once.
Doctors also complete two forms, once, about their practice characteristics. This usual ly takes about five minutes. Phone training for you and your staff will take approximately 20 minutes."
" A n y D C i n t e r e s t e d i n participating may learn more o n l i n e a t www.Chi roACCESS.com/ICON. Interested parties with specific questions may also contact TCCʼs Director of Research Will Evans, DC, PhD, at [email protected]; Loganʼs Director of Clinical Research Cheryl Hawk, DC, P h D , a t [email protected]; or Parkerʼs Dean of Research Ronald Rupert, DC, MS, at [email protected]."
TCC Welcomes New Clinic Dean
Texas Chiropractic College (TCC) welcomed Dr. Barry C. Wiese, DC, MSHA, as the schoolʼs new dean of clinics, TCC President Dr. Richard G. Brassard announced.
Wiese will be responsible for overseeing the quality of patient care and student educat ion at the Moody H e a l t h C e n t e r a n d t h e Campus Health Clinic.
“Itʼs great to be here, and to have the opportunity to be involved with TCC,” said Wiese. “The college has tremendous vision, and a
strong desire to be the best chiropractic college anywhere — it was a simple decision to be a part of what I consider the future of chiropractic clinical education. In addition, we a re b lessed w i t h a phenomenal faculty and staff — Iʼm very excited about the possibilities.”
"Wiese received his Doctor of Chiropractic degree from P a l m e r C o l l e g e o f Chiropractic in 1994 and his Mas te r ʼs o f Sc ience i n Healthcare Administration and Management from Rosalind Franklin University in 2009. He addi t ional ly ho lds a diplomate in chiropractic neurology and is both a certified chiropractic sports p h y s i c i a n a n d c e r t i fi e d strength and conditioning specialist."
"With almost 16 years of c l i n i c a l a n d t e a c h i n g experience, Wiese has been a valued member of the clinics at both New York Chiropractic College (NYCC) and Palmer and has also been successful in private practice."
"In addition to his clinical, t each ing , and p rac t i ca l experience, Wiese is currently a member of the editorial board for the Journal of Chiropractic Medicine. He has presented a several symposiums on the topics of geriatrics and integrative h e a l t h c a r e a s w e l l a s rehabilitation and clinical education."
33 Texas Journal of Chiropracticwww.chirotexas.org
PCC Names New VP of DevelopmentParker College of Chiropractic recently appointed JoLynne Jensen as vice president of development. In her new role, Jensen will work to develop t h e c o l l e g e a n d f o s t e r relationships with others in the community.
“Parker College is expanding in many ways and JoLynne will play a vital role in these expansions,” said Dr. Fabrizio Mancini, president of Parker Col lege of Chiropract ic . “We ʼre especially excited about her experience in advancing and extending new opportunities.”
"Previously, Jensen served as a nonprofit and fundraising consultant, a role she played f o r m a n y y e a r s w i t h organizations from Dallas to Tokyo. She has more than 30 years of experience in the nonprofit sector."
“Working with nonprofits and higher education institutions is t ru ly my pass ion, ” sa id Jensen. “Iʼm eager to support the college in its future endeavors.”"She spent 18 months as vice president of development at the Dallas Symphony where she was responsible for an annual contributed income of 10 million dollars plus, and planning a 100 million dollar endowment campaign."
"For nearly six years, Jensen worked as executive director f o r a n e w l y c r e a t e d organization, The Advisory Board of the Booker T. Washington High School for the Performing and Visual Arts. She coordinated a 32 million dollar capital campaign for the 55 million dollar project to renovate and expand the Arts Magnet High School in Dallas, TX. As of December 2007, the campaign had secured more than 34 million dollars in contributions — a public school record.
“She was honored as Greater Dal las Chapter ʼs 2009 Outstanding F u n d r a i s i n g Executive by the Association of Fund R a i s i n g Professionals."
PCC Scholars honored"Whoʼs Who Among Students awarded 17 Parker College of Chiropractic students with one of the most prest ig ious a w a r d s t h e a c a d e m i c community can bestow — select ion to Who ʼs Who Among Students."
"This elite honor is conferred b y m o r e t h a n 2 , 8 4 2 universities and colleges in all 50 states and the District of Columbia. A committee of faculty and students selected the nominees based on GPA, participation and leadership in academic act iv i t ies, and school or community service."
"Among those s tuden ts honored were Chad Adams, Nick Anthony, Asha Brewer, Jonnathan Camacho, Kara Dudowicz, Kayla Glover, Michael Medlock, Jordan Pellien, Abby Perone, Lauren Rains, Jeremy Rawls, Dan Sull ins, Jenna Swanson, S t e p h e n Ti e t j e n , C a r o l Watkins, Aaron Wilson, and Anna-Marie Winner."
GPA Requirement for DC Degree Program Raised
Dynamic Chiropractic reports that "In an unprecedented move to increase academic standards in the chiropractic p r o f e s s i o n , N a t i o n a l University of Health Sciences (NUHS) announced that it is raising the minimum grade point average required for admission to its Doctor of Chiropractic Medicine degree program from 2.50 to 2.75. The new standard will be applied to the Fall 2012 incoming class."
"Currently, the Council on Chiropractic Education (CCE) requires a 2.50 GPA for students entering accredited DC programs. National's new standard will also apply to students seeking the Doctor
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of Naturopathic Medicine degree, the university's other first professional doctoral degree program."
"The impetus for raising our GPA requirement started back in 1991. At that time, the Foundation for Chiropractic Education and Research (FCER) published a report by the Corporate Health Policies G r o u p a n a l y z i n g w h y chiropractic institutions were not receiving federal funding from various government programs. Their findings pointed to a relative lack of a c a d e m i c a c h i e v e m e n t m a r k e r s b y m o s t professionals in chiropractic medicine when compared to professionals from other medical specialties."
"In 1993, ... an advisory paper for National's Board o f T r u s t e e s t h a t recommended specific changes in admissions criteria and academic programming that National and other chiropractic institutions could and should implement in order to bring the profession more in line with the academic standards held to by other medical professions. This included recommendations for requir ing candidates for admission to have completed a baccalaureate degree, and ultimately to raise the grade point average requirement from 2.50 to 2.75."
"In 1999, National added the r e q u i r e m e n t f o r a baccalaureate degree."
"The NUHS board agreed that raising the GPA would be a positive step for the university. Dr. Winterstein advised not to push such a major change too quickly without adequate time to inform the public. The board agreed to implement the change for Fall 2012."
"National's current average GPA for incoming students is 3.20."
Parker Gala Raises Chiropractic Research Funds
Parker College of Chiropractic held the Third Annual Parker Gala during Parker Seminars Las Vegas. Event proceeds will provide additional funding for chiropractic research and will benefit the advancement of the profession.
Over the last several years, the profession has made great s t r ides in gain ing acceptance among both the
public and the greater medical community. Millions of dollars are given to medical research each year with only a small number of federal grants being awarded to projects involving chiropractic. The gala proceeds provide grants to support small studies conducted by researchers at academic institutions. These studies become significant when the research project is published in scientific or peer-reviewed chiropractic journals, and this achievement serves as the bridge to secure larger federal and foundation grants.
The Drugless Research Hall of Fame Award was presented to the third inductee, Dr. Arlan
W. Fuhr, president of The Na t i ona l I ns t i t u te o f Chiropractic Research and co- founder and chief e x e c u t i v e o f fi c e r o f A c t i v a t o r M e t h o d s International. Dr. Fuhr was honored with the award because of his dedication to chiropractic research and pursuit of excellence as a chiropractor to impact the health care of the world without drugs. Dr.
Fuhr is the co-inventor of the A c t i v a t o r ® A d j u s t i n g Instrument and the Activator M e t h o d C h i r o p r a c t i c Technique®. In 1985, he received the first grant ever given to chiropractic from the National Institutes of Health. The Drugless Research Hall of Fame is an innovative recognition platform designed b y P a r k e r C o l l e g e t o showcase significant drug-
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Life Expectancy Lags in the U.S.REPORTED HERE is "Life expectancy in the U.S. lags behind that of many other high-income countries and is currently ranked by the United Nations at number 28, despite s p e n d i n g t h e m o s t o n healthcare ...."
"In 2006, the average life expectancy at birth was 75.1 years for American men and 80.2 years for women, rising from 47.9 years and 50.7 years, respectively, in 1900 and 65.4 and 71 in 1950."
"In contrast, life expectancy for men in Japan was 79.2 years in 2007 and 86 years for women, up from 57.6 and 60.9 in 1950, respectively ...."
"The U.S. performs well in the detection and treatment of several of the main sources of early mortali ty, including cancer and strokes, but its major shortcomings have been its failure in preventive medicine and in curbing unhealthy l ifestyles," the report cites.
"Moreover, the impact of unhealthy behaviors and i n a d e q u a t e a c c e s s t o h e a l t h c a r e i s m o s t concentrated at the lower end of the socioeconomic ladder."
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Federal Credential DisclosureT h e A m e r i c a n M e d i c a l Association REPORTS HERE tha t "Two congressmen introduced a measure on Jan. 26 that would require people providing medical care to be honest about their training a n d q u a l i fi c a t i o n s . T h e H e a l t h c a r e T r u t h a n d Transparency Act has the backing of several physician organizations, including the A m e r i c a n M e d i c a l Association, the American Osteopathic Assn. and the A m e r i c a n S o c i e t y o f Anesthesiologists. Several states have taken similar action to rein in patient confusion and prevent fraud, and more are considering such legislation."
" T h i s i s t h e s e c o n d consecutive year the federal bill has been sponsored by Reps. John Sullivan (R, Okla.) and David Scott (D, Ga.). The measu re wou ld r equ i r e anyone advertising health care services to state in the advertisement the license that authorizes them to provide those services."
"The proposal would make it unlawful for anyone to provide decept ive or mis leading in format ion that causes patients to believe they have training or qualifications that they do not. The Federal Trade Commission would enforce the law."
"The AMA has drafted even m o r e s t r i n g e n t m o d e l l e g i s l a t i o n t o r e q u i r e practitioners to identify their license type in ads, wear a visible photo ID badge when seeing patients and post their type of license in their offices."
Au thors c la im tha t th is legislation "would not limit any h e a l t h p r o f e s s i o n a l ' s approved scope of practice. 'We just want people to do what they were trained to do.'
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Decrease Diagnostic ImagingT h e A m e r i c a n M e d i c a l Association REPORTS HERE that "The American College of Physicians wants doctors to stop and think before ordering d i a g n o s t i c i m a g i n g f o r patients with low back pain. Such tests are recommended only for those with severe or progressive neurologic deficits or signs of "a serious or specific underlying condition," according to ACP clinical guidance ..."
" R e s e a r c h s h o w s t h a t unnecessa ry d iagnos t i c imaging drives up health care costs and has little value for most patients. The tests might c a u s e h a r m t h r o u g h u n n e c e s s a r y r a d i a t i o n exposure and lead to more tests or invasive procedures that fail to ease symptoms."
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"Low back pain is one of the m o s t c o m m o n r e a s o n s patients visit physicians. Studies have shown that about a quarter of adults report experiencing back pain for one day in the last three months ..."
"The ACP and the American P a i n S o c i e t y h a v e recommended selective use of diagnostic imaging -- such as l umbar rad iog raphy, computed tomography and magnetic resonance imaging -- since 2007 ...."
"The clinical guidelines were issued to help reduce direct costs from the tests as well as costs from follow-up visits, additional tests, referrals and invasive procedures that have questionable benefit ...."
" P h y s i c i a n s o f t e n f e e l compelled to recommend diagnostic imaging because of p a t i e n t p r e s s u r e , t h e e x p e c t a t i o n o f a c l e a r d i a g n o s i s , e x c e s s i v e precaution due to medical liability concerns or financial considerations because of high reimbursements for such tests ...."
"One survey found that more than a third of physicians said they would order an imaging test if a patient insisted on it."
"They found no difference in pain, function, quality of life or overall improvement between pat ients who underwent imaging tests and those who d id no t . The re was no
difference in patients who received radiography versus advanced imaging tests such as MRI and CT scans."
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Osteoporosis Guidelines ChangeI t i s REPORTED HERE that " T h e U . S . Preven t i ve S e r v i c e s Task Force ( U S P S T F ) has finalized new guidelines expanding the pool of women for whom osteoporosis screening is recommended. The guidance, which was released in draft form in July, recommends screening for all women ages 65 and older, as well as younger women who have a level of risk equivalent to a 65-year-old white woman with no additional risk factors. White women have a greater osteoporotic fracture risk than women of other races or ethnicities."
"Although no lower age limit was recommended, the task force noted that women as young as 50 might have a l e v e l o f r i s k j u s t i f y i n g screening on the basis of the type and number of risk factors."
"The new recommendations update the 2002 USPSTF
guidelines that recommended bone-density screening for women ages 65 and older and women ages 60 to 64 who are a t i n c r e a s e d r i s k f o r osteoporotic fractures. The earlier guidelines did not address screening in women younger than 60 or in men."
"The task force provided examples of younger white women who would have comparable risk:
A 50-year-old current smoker with a body mass index of less than 21, daily alcohol use, and parental fracture history.
A 55-year-old with a parental fracture history.
A 60-year-old with a BMI of less than 21 and daily alcohol use.A 60-year-old current smoker with daily alcohol use."
"The majority of the draft recommendations remained u n c h a n g e d i n t h e fi n a l version. The key guidance included the following:
Although no controlled studies have evaluated the effect of screening for osteoporosis on outcomes, the benefit of treating screening-detected osteoporosis is judged to be "at least moderate" in women 65 and older and in younger women with equivalent risk on the basis of risk factors.
There is convincing evidence that bone-density tests -- most commonly dual-energy x-ray
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absorptiometry of the hip and lumbar spine and quantitative ultrasound of the calcaneus -- predict short-term risk of osteoporotic fractures in women and men.
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Walking Lowers Diabetes Risk
I t i s R E P O R T E D H E R E t h a t "Walking more not only wards off weight gain in middle age but also helps p r e v e n t o r
d e l a y d i a b e t e s , a population-based study in Australia affirmed. Middle-age Australians who increased their daily step count over five years maintained significantly higher insulin sensitivity at the end of that period than those w h o d i d n ' t b o o s t t h e i r steps ...."
"This effect appeared largely due to lower adiposity, though independent o f ca lor ies c o n s u m e d , t h e g r o u p r e p o r t e d . . . . I f c a u s a l , sedentary individuals who change their habits to walk an extra 2,000 steps (about one mile) a day might expect to shave 0.16 kg/m2 off their body mass index and boost insulin sensitivity by 2.76 u n i t s , t h e r e s e a r c h e r s estimated."
"A relatively inactive person who gets to the goal of 10,000
steps (about five miles) per day could expect their BMI to drop 0.83 kg/m2 and their insulin sensitivity to rise 13.85 units -- a 12.8% increase from the mean for men and 11.5% for women."
"Thus, sedentary individuals who reach 10,000 steps (about five miles) per day might expect a three-fold improvement in HOMA insulin sensitivity compared with increasing steps to a recent recommendation of 3,000 steps five days a week, the investigators projected."
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Sleep Linked to Healthier KidsIt is reported that "Children who get more sleep, even if it's only "catch-up" sleep on weekends, may be protected against obesity and other m e t a b o l i c p r o b l e m s , researchers suggested. A study conducted among more than 300 children ages four to 10, found that those who slept the least and had the most irregular sleep schedules were over 4.4-fold more likely to be obese, ...."
"Short nights and variable sleep patterns were also linked to altered levels of insulin, LDL cholesterol, and the inflammatory marker high-sensitivity C-reactive protein among a subsample of the s t u d y g r o u p . . . . B u t compensating with extra sleep on the weekends lowered the
kids' risk of obesity to less than 2.2-fold excess, the group wrote."
"Even just an extra half hour of sleep per night might lower body mass index (BMI) and reduce the metabolic effects that predispose to diabetes and cardiovascular disease later in life, they proposed."
"Not getting enough sleep could cause changes in neuropeptides that regulate appetite -- raising ghrelin and reducing leptin -- and lead to more eating and obesity ....""Optimal sleep is associated with better attention, better ability to learn, and better memory. There are a lot of advantages about sticking to a regular bedtime routine with a p p r o p r i a t e t i m e b e i n g allowed for the child to sleep."
"... consistently long sleep in the recommended range of about 9.5 hours on both weekdays and weekends was associated with the healthiest metabolic profile."
"Significant alterations in insu l in , LDL, and h igh-sensitivity C-reactive protein levels were linked to short sleep duration (about 6.5 hours) throughout the week as well as normal duration (about eight hours) on the weekend whether long or short on school nights."
"In other words, the longer a n d m o r e - s t a b l e s l e e p duration is, the less likely a child is to manifest metabolic
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dysfunction," the researchers concluded in the paper.
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New Study Shows Benefit of Chiropractic Maintenance Theraapy
REPORTED HERE Spine Journal will soon publish the "first ever randomized study on manipulation maintenance therapy for chronic low back disorders...."
"The maintenance group actually showed even further improvement after the 10 once per month treatments! This is a very important study because of the benefit to p a t i e n t s a n d b e c a u s e chiropractic maintenance treatment is controversial among many non chiropractic providers and stakeholders."
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Delaying Hormone Use Cuts Breast Cancer Risk"Women who begin using hormone therapy close to the time of menopause are at greater risk for breast cancer than those who wait five years or more, a large prospective study found. Among current u s e r s o f e s t r o g e n - o n l y hormone formulations who began the therapy soon after menopause, the risk of breast cancer was s ignificant ly higher than in nonusers."
"But for those who deferred the therapy for five years or more, the relative risk was not increased ...."
"The risk among women currently taking estrogen-progestin formulations was greater than for those taking estrogen alone, with relative risks of 1.53 and 2.04 among those beginning more and less than five years after menopause, respectively."
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Fruit and Veggies CUT Risk of Heart DiseaseIt is REPORTED HERE that " P e o p l e w h o w a n t t o significantly reduce their risk of dying from ischemic heart disease may do well to greatly increase their daily intake of fruits and vegetables, a large
prospective European study s u g g e s t s . . . . t h o s e w h o consumed eight or more p o r t i o n s o f f r u i t a n d vegetables each day had a reduction of 22% in their risk of fatal ischemic heart disease compared with those who ate fewer than three portions ...."
"In addition, increasing daily fruit and vegetable intake by just one portion led to a 4% decrease in risk of death from ischemic heart disease ...."
" T h e W o r l d H e a l t h O r g a n i z a t i o n h a s recommended a daily intake of 400 to 500 gm (around 14 to 18 oz) per day -- about five or six portions a day of fruits and vegetables."
"A longstanding suggestion is that micronutrients in food have antioxidant effects that help prevent atherosclerosis, although randomized trials of s u p p l e m e n t a t i o n o f antioxidant vitamins have not confirmed benefits. 'It is, however, worth noting that c o n s u m i n g a n t i o x i d a n t supplements is not the same a s i n c r e a s i n g t h e consumption of fruits and vegetables because there are many other components in fruits and vegetables that may confer a cardioprotective effect....'"
"Preventing inflammation may also contribute, some experts say. 'A possible mechanism is the impact o f f ru i t and v e g e t a b l e s t o l o w e r i n fl a m m a t i o n , a k n o w n mechanism contributing to
39 Texas Journal of Chiropracticwww.chirotexas.org
cardiovascular disease' …. These kind of results call out for greater emphasis on vegetable and fruit intake by healthcare professionals and by those directing public health policy.'"
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Dietary Guidelines TweakedIt is REPORTED HERE that "The federal government has issued the first update in five y e a r s o f i t s " D i e t a r y Guidelines for Americans" -- but despite broad recognition of the U.S. obesity crisis, the u p d a t e l e f t t h e m a j o r cornerstones of the guidelines largely intact."
"The revision, a joint effort of the U.S. Department of Agriculture (USDA) and the Department of Health and Human Services (HHS), was released today -- although it
carries a 2010 date. USDA and HHS last updated the guidelines in 2005."
"Basic recommendations for maximum intake of fats and c h o l e s t e r o l , s o d i u m , potassium, and fiber remain unchanged from the last edition."
" I n s t e a d , t h e " D i e t a r y Guidelines for Americans 2010" focused mainly on w o r d i n g t w e a k s - - reorganizing how some of the r e c o m m e n d a t i o n s a r e presented."
"The new edition of the dietary guidelines sets the following daily limits or targets:
• Fat intake: 20% to 35% of total calories
• Saturated fat: less than 10% of total calories ( m o n o - a n d polyunsaturated fats may be substituted)
• Trans-fats: less than 1% of calories
• Cholesterol: less than 300 mg
• Fiber: 14 g per 1,000 calories
• Potassium: 4,700 mg• Sod ium: less than
1 , 5 0 0 m g f o r a l l African-Americans and t h o s e w i t h hypertension, diabetes, and chronic kidney d i sease ( i nc lud ing children), as well as persons older than 51; e v e r y o n e e l s e i s advised to consume under 2,300 mg of sodium a day
• Fruits and vegetables: at least 2.5 cups
• Refined grains: less than 3 oz"
Remember to schedule your attendance at
the TCA Annual Convention!
June 9-12, 2011
40Texas Journal of Chiropractic www.chirotexas.org
