A Texas-Sized Constitutional Battle… the Right to Diagnose

Many chiropractors have woken up to the legal battle going in Texas, but if you’re not aware of what’s going on — and you care about your right to diagnose patients — you really need to start paying attention.

And that’s not just my opinion. Look at this April 26 email message from attorney Keith Pendleton, JD.

“Last week, at the request of several ProviderLAW members in Texas, I took a look at a case that some of you may have heard about, but doesn’t seem like it has hit the national press yet. I have to tell you, as a chiropractic patient myself, what I discovered was something of a shock.”

“The Texas Medical Association – a founding member of an AMA-led nationwide consortium called the Scope of Practice Partnership (SOPP) – sued the Texas Board of Medical Examiners to remove the ability of chiropractors to diagnose. The TMA isn’t just suing the TBCE on any old grounds either. It is challenging the ability of chiropractors to diagnose based on State constitutional grounds.”

I don’t know about you, but when a lawyer says he’s “shocked” by something in the legal realm, that gets my attention. Here’s a brief overview/timeline of what’s going on:

1. In January 2006, the American Medical Association (AMA) announced an industry consortium known as the “Scope of Practice Partnership” (SOPP). The consortium was originally formed by the AMA, along with six national medical specialty societies and six state medical associations, including the Texas Medical Association (TMA). The stated purpose of the group, among other directives, was to “concentrate the resources of organized medicine to oppose scope of practice expansions by allied health professionals that threaten the health and safety of the public.”
2. In May 2006, the Texas Board of Chiropractic Examiners (TBCE) adopted rule 75.17 regarding the scope of practice for licensed doctors of chiropractic in Texas. The rule, formed in response to a legislative mandate made in the state’s Chiropractic Act, governed two particular procedures being performed by chiropractors in the State of Texas – Needle EMG and Manipulation Under Anesthesia (MUA).
3. In September 2006, TMA filed suit against the Texas Board of Chiropractic Examiners (TBCE). In its lawsuit, TMA challenged the chiropractic board’s rules for Needle EMG and MUA, saying that the rules violated the Texas constitution because they represented an infringement of the authority of the Texas Board of Medical Examiners. Further, the Medical Association challenged the right of chiropractic doctors to “diagnose,” arguing that only medical doctors have the right to diagnose patients.
4. In November 2009, a Texas trial court’s “summary judgment” ruled that TBCE’s rules regarding EMG and MUA are invalid. The Texas Chiropractic Association is appealing the ruling.
5. On August 16, 2010, the court is scheduled to hear arguments and testimony on the board’s rules regarding “diagnosis” with respect to Texas chiropractors’ scope of practice.

Clearly, this case is of monumental importance to Texas DCs. So, assuming you don’t practice in Texas, why is this a big deal? Let’s review: this lawsuit doesn’t just seek to prevent the expansion of the scope of practice of chiropractic in Texas. It’s an attempt to restrict what chiropractors have been doing in Texas for decades. And the battle is taking place on constitutional grounds in one of the nation’s largest states. Make no mistake: if successful, this lawsuit could have major ramifications for SOPP and DCs operating nationwide, not to mention their patients.

But don’t take my word for it. Let’s hear again from attorney Keith Pendleton.

“You may have the right in your State (currently) to diagnose….Then consider a few facts… Consider the fact that Texas chiropractors have been reimbursed for years by insurance to diagnose (e.g., state worker’s comp). Consider the fact that statutes like these are being challenged as unconstitutional. Consider the fact that they are being challenged by one of the founding members of a national consortium that is systematically challenging scope of practice nationwide and even publishes a chart of its current actions.”

Now, I’m not suggesting that anyone panic. This legal wrangling may take years to decide. But you need to be aware that the wheels are in motion, and that this is part of a bigger movement to concentrate power in the hands of those “real doctors” who already — along with the drug companies — have the lion’s share of power and influence over our health care system today. Think about it.