What you need to know about the Texas Chiropractic Association crisis
Update: Fight to save diagnosis in Texas making progress
The quest to save diagnosis in Texas is off to a promising start. With the 85th Texas Legislature Session winding down this week, Senate Bill 304 was passed by the Texas House after navigating through the Senate earlier this month and awaits final sign-off from the Senate. The last step in the process is a signature from Texas Gov. Greg Abbott.
All chiropractors know what it’s vital to support their state chiropractic associations.
And they should also support the national chiropractic associations as well as the Foundation for Chiropractic Progress. That’s because these organizations are a bulwark against scope-of- practice threats from the AMA and state medical associations.
This isn’t unique to chiropractic, either. Dentists fight with orthodontists, optometrists battle with ophthalmologists—it’s the nature of the medical industry and professional specialization. But something very serious recently happened in Texas that deserves your full attention.
A brief history of the Texas crisis
Please click each year on the timeline to view a description of the event
In August 2016, judge Rhonda Hurley, ruling in the 98th judicial district in Texas, found in favor of Texas Medical Association (TMA) against the Texas Board of Chiropractic Examiners (TBCE) and the Texas Chiropractic Association (TCA). “We lost everything,” says Jeff Jenkins, executive director of the TCA.
What Jenkins refers to here is that the initial suit in 2006 by the TMA and Texas Medical Board against the TBCE was aimed at restricting chiropractors from performing manipulation under anesthesia (MUA), from conducting needle EMG, and from rendering any type of diagnosis (this case is sometimes called “Diagnosis 1”). The court ruled in 2009 in favor of the TMA on the first two points, but allowed diagnosis to remain within the chiropractic scope of practice.
In 2011 the TBCE appealed MUA/EMG decision, and appealed the 2009 ruling to the Third Court of Appeals.
The TMA, meanwhile, filed another suit, this time aimed at a TBCE rule allowing DCs to perform instrument-assisted vestibular ocular nystagmus testing (“Diagnosis 2). In 2012, the verdict was upheld for the first suit, preserving diagnosis for chiropractors, and affirming that MUA/EMG are invalid.
The TMA, meanwhile, amended its second suit, this time ominously adding “musculoskeletal” and “subluxation.”
In the court’s final ruling on October 19, 2016, the TMA got everything it was asking for and more, including the following:
The definition of ‘musculoskeletal system’ to include ‘nerves’ exceeds the scope of chiropractic as defined Tex. Occ. Code § 201.002(b) and is therefore void; and The definition of ‘subluxation complex’ as a ‘neuromusculoskeletal condition’ exceeds the scope of chiropractic as defined Tex. Occ. Code § 201.002(b) and is therefore void; and The use of the term ‘diagnosis’ as used by TBCE in its Scope of Practice Rule exceeds the scope of chiropractic as defined Tex. Occ. Code § 201.002(b) and is therefore void.
This verdict effectively puts Texas chiropractors out of business. The TCA and TBCE, of course, appealed as quickly as possible at the beginning of January 2017.
“We expect this to be a multi-year trial, one that will be expensive. As it goes through the court of appeals, it could wind up going all the way to the Texas Supreme Court. We need support from Texas DCs and also those in the rest of the country,” Jenkins says.
The Texas legislature’s Sunset Advisory Commission meets every two years to review laws in place, and they asked the TBCE to explain in detail what modalities were within the chiropractic scope of practice. “The legislature didn’t like just getting opinions,” says Tyce Hergert, DC, president of the TCA. “They wanted a clear statement of what DCs could and couldn’t do. Every time the board would write a note, the TMA would push back and say, ‘No, DCs can’t do that.’”
[Video] There is no replacement for chiropractic
What's the larger threat to chiropractic?
Hergert also notes that the AMA, in its annual meeting in 2006, said that at each state level, they were looking to revise the scope practice in every state for non-MDs. The implication couldn’t be clearer: The case in Texas is likely to be a blueprint for the AMA to throttle back chiropractors’ ability to do business, period.
“Leading up to trial, it became clear the Texas attorney general would be representing the state licensing board, and in spite of the TCA demonstrating at the district court level the extent of our training and ability to diagnose, the court still ruled in favor of the TMA,” Hergert says.
Now, with the appeal under way, the stakes couldn’t be higher. Every step of the lawsuit costs at least half a million dollars, “And more than a million once it’s at the Supreme Court,” Hergert says. “It’s confusing for doctors to keep track of all this, as administrative filings don’t follow regular legal rules and processes.”
But where do things go from here? “There are two tracks—the court appeal, and a law change,” Jenkins says. “But if left unchanged, chiropractic patients will need to get a referral from an MD. It’s not just about being fair to DCs, but the right of the patient to choose the doctor they want— whatever specialty that is.”
People are already comparing this situation to Wilk vs. American Medical Association. If the TMA prevails in this ruling, and if the appeal on behalf of the TCA and TBCE fails, there’s a real possibility of diagnosis and subluxation being removed from the scope of chiropractic practice nationwide.
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How to take action
Make no mistake, the hard-won gains made by chiropractic that offer provider equality and recognition are always at risk against efforts currently underway by the AMA and state-level medical associations.
Help your colleagues in Texas defend themselves. This is urgent and your donation of $100 or more is needed to fund what may be a struggle ending in the Supreme Court of Texas, and to defend your own practice in your state. If the medical industry sees a grassroots effort by citizens, providers, and vendors united and victorious in this fight, they’ll be less likely to pursue similar actions on your doorstep. Reread the key sections of the ruling above. Consider what they would do to your livelihood and your patients.
If you practice in the state of Texas, then you’re already in this and you know what’s at stake. If this were happening in your state, wouldn’t you want your fellow chiropractors nationwide by your side helping you win what is shaping up to be the most important legal case since Wilk v. American Medical Association? Stand up and defend your profession now.
The TCA is asking all DCs to support their fight here: chirotexas.org. The link on the page titled “Support Chiropractic Now” directs you to where you can donate once, or set up recurring donations.