Jan-Feb 2011 Journal by Texas Chiropractic Association

Texas Chiropractic Association

Texas Journal of Chiropractic The Texas Legislature Convenes New Chiropractic Advocacy Website Capitol News TMA v TBCE Legal Brief Outlines Story Insurance Changes Discriminatory policies MDs in Congress TBCE Rules Changes The PR of Disease

Volume XXV, Issue 1 First Quarter 2011

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Texas Chiropractic Association

Texas Journal of Chiropractic First Quarter 2011

Volume XXV, Issue 1

Texas Journal of Chiropractic The Official Publication of The Texas Chiropractic Association

1122 Colorado, Suite 307 Austin, TX 78701 Phone: 512 477 9292 Fax: 512 477 9296 E-mail: info@chirotexas.org www.chirotexas.org Executive Officers President: Ed Fritsch D.C. President Elect: Jorge Garcia D.C. Secretary: Jack Albracht D.C.

Inside Texas Legislature, Now Open!

Capitol News Week 1!

TMA v TBCE Appealed; Legal Brief Outlines Story!

MDs in Congress: 3.36% of Membership !

TBCE Announces Two Final Rules and One New Rules Proposal! ! ! ! ! ! ! 13

TCA Staff Executive Director: Patte Kent Communications Director: Chris Dalrymple D.C. Legislative Director: Chip Kent

Board of Directors District 1! District 2! District 3! District 4! District 5! District 6! District 7! District 8! District 9! District 10! District 11! District 12!

Dan Petrosky D.C. Jon Blackwell D.C. Jason Clemmons D.C. Mark Bronson D.C. Dr. John QuinlanÂ D.C. Cody Chandler D.C. David King D.C. Robert Hoffman D.C. James Welch D.C. Shane Parker D.C. Max Vige D.C. Yvonne Landavazo D.C.

Policies Annual 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 supervision of the TCA Publication 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.

Ibuprofen and Migraines: Half-way effective.!

United Healthcare's Response to "Non-essential" Chiropractic Service! ! ! ! ! ! ! 16 DON'T Avoid the Draft!!

Chiropractic Advocacy Website Unveiled!!

Kaiser Reverses Adverse CMT Policy!

STARTING with Chiropractic Saves 40% on Low Back Pain Care! ! ! ! ! ! ! ! 19 The PR of Disease! !

The AMA's Gift to Chiropractic?! !

College News!

In Other News !

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 Legislature Opens January 11 The Legislature of the State of Texas is a bicameral (twochambered legislative body composed of a 31-member senate and a 150-member House of Representatives. The Legislature is the constitutional successor of the Congress of the Republic of Texas since Texasʼ entry into the United States in 1845. The Legislature meets in regular session beginning the second Tuesday in January of each odd-numbered year. The regular sessions are limited to 140 calendar days.

Call for Keeler Award Nominations Established 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 McCubbin Secretary, Keeler Plaque Committee P. O. Box 272 Hunt, 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

The Lieutenant Governor, elected by separate statewide election, presides over the Senate.

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 House members elect their own Speaker of the House to preside over the House of Representatives.

The candidate’s main endeavor must be in the practice of chiropractic and must have promoted chiropractic throughout their career.

Both the Lt. Governor and the Speaker of the House have wide latitude in choosing the committees of their legislative houses, thereby exerting a large impact on the development and enacting of laws within the state. Only the Governor may call the Legislature into special sessions, unlike other states where the legislature may call itself into session. The Governor may call as many sessions as desired. The

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.

Texas Constitution, however, limits the duration of each special session to 30 days and lawmakers may consider only those issues designated by the Governor in his "call," or proclamation convening the special session (though other issues may be added by the Governor during a session).

Bills passed by the Legislature take effect 90 days after its passage unless two-thirds of each house votes to give the bill either immediate effect or earlier effect. The Legislature, of course, may provide for an effective date that is after the 90th day. Most bills are given

Texas Journal of Chiropractic

an effective date of September 1. State legislators in Texas make $600 per month, or $7,200 per year, plus a per diem which is paid to legislatures at $128 for every day the Legislature is in session. That adds up to $17,920 a year for a regular session (140 days).

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 receipt. Send nominations to 2010 recipient:

Members of the 82nd Texas Legislature may be found online. CLICK HERE FOR MEMBERS OF TEXAS HOUSE OF REPRESENTATIVES ---CLICK HERE FOR MEMBERS OF THE TEXAS SENATE ---CLICK HERE TO FIND OUT SPECIFICALLY WHO REPRESENTS YOU 

Capitol News... Week 1 Governor Addresses Lawmakers The Austin American Statesman REPORTS HERE that"As Texas lawmakers opened their 82nd biennial session grappling with how to plug a whopping $27 billion hole in the budget, Gov. Rick Texas Journal of Chiropractic

Dr. Jon D. Blackwell, D.C. 6109 Ridgewood Amarillo, Tx 79109 or via email at jon@nts-online.net

Perry amped up the agenda by fast-tracking two hot-button issues for action: private property rights and immigration." "A day usually reserved for pomp and circumstance was also marked by drama. On the House side, Speaker Joe Straus was elected with some resistance after months of boisterous opposition from tea party and conservative activists. And in the Senate, Sen. Steve Ogden, the upper chamber's chief budget writer, outlined why cuts to education and health care programs will be necessary."

Check ww

w.chirotex as.org Click HER E for the “Texas Jo urnal of Chiroprac tic”

"Perry said in proclamations to the Senate and House that he was designating as "emergency" issues the protection of private property rights in eminent domain cases and the abolition of socalled sanctuary cities. The designation means that legislation on those issues can be fast-tracked for quick approval." "As the governor discussed priorities, lawmakers and new members took their oaths of office. In the House .... there was more theater over the speaker's race. Straus had all but locked up his re-election to the chamber's top job Monday when 70 Republicans said they would vote for him. The pledges effectively killed the efforts of Rep. Warren Chisum, R-Pampa, and Rep. Ken Paxton, R-McKinney, who had tried to unseat him for not being conservative enough."

"On Tuesday, only 15 of the 150-member body voted against Straus. Two lawmakers were present but didn't vote..."

"To be fair, that there has even been a discussion about a speaker's race during the past couple of months is a testament to the strength of

Joe Straus Elected House Speaker In an article REPORTED HERE the Statesman notes "The re-election of Texas House Speaker Joe Straus to begin the 2 0 11 l e g i s l a t i v e session Tuesday showed that the tea party, while a potent force in Texas politics, is not the dominant force. For months, activists used e-mails, social media and phone calls to try to rally opposition to Straus, who, no matter what he does, seems unable to shake the label of a moderate." "In conversations throughout the duration of the speaker's race, lawmakers, staffers and lobbyists have pointed to a number of reasons for Straus' win. For one, he was helped by lawmakers' reverence for the traditions of the House and the relationships formed within. Even some of the House's most conservative lawmakers rejected the notion that keyboard-happy activists and the fear of defeat in the next Republican primary would bully them into abandoning a speaker whom most find approachable and fair-minded."

For one, after an emotionally charged, prolonged battle for the speakership in 2009, when Straus beat conservative favorite Tom Craddick, many lawmakers did not have the stomach for another speaker's fight. It helped that Straus had given rankand-file members more control over legislation than Craddick, who c e n t r a l i z e d considerable power in the speaker's office." Senator Hutchison Announces End of Tenure

the tea party in Texas. After Republicans won a legislative majority larger than any expert anticipated on Nov. 2, Straus was quick to produce a list of more than 120 lawmakers who pledged to support him for speaker on the first day of the session. ... But defeating Straus seemed to become a preoccupation of many supporters of the tea party movement." "Some Republican members responded by publicly declaring their opposition to the speaker. But most either hedged their bets or stuck with him as it became clear that, regardless of who the speaker was, the House was moving in a more conservative direction." "A number of other factors worked to Straus' advantage. 5

The Austin American Statesman REPORTS HERE that "U.S. Sen. Kay Bailey Hutchison said Thursday she won't seek re-election next year, ending a nearly 20-year tenure in Washington and opening up one of the best jobs in Texas politics." "When my current term is up, I will have served Texas for 19 years in the United States Senate," Hutchison said in a statement. "I intended to leave this office long before now, but I was persuaded to continue in order to avoid disadvantage to our state." Lt. Gov. David Dewhurst said "While my focus remains on the challenges we face here at the state level and making the upcoming session successful, I fully intend to explore running for the United States Senate." Texas Journal of Chiropractic

"Hutchison, a former U n i v e r s i t y o f Te x a s cheerleader, TV reporter and state lawmaker who first won the Senate seat in 1993, has long been one of the most popular politicians in Texas. But her stock dropped last year when she badly lost a challenge to Gov. Rick Perry in the Republican primary. Hutchison had said that she would resign the Senate seat after that primary, win or lose, but she changed her mind shortly after the race and left open the possibility that she would run again in 2012. Though she has been indecisive about her plans at several points during the past couple of years, Thursday's announcement is, by all indications, final." "Hutchison said … that she would be forever grateful for the chance to serve in the Senate. 'I will now look forward to living full time in Texas with my family," she said, "and to keep working for our state's interests as long as I live.'"

the Texas Youth Commission and the Juvenile Probation Commission and merge it into a single agency that would oversee all state corrections programs for youths."

Anchiaʼs recommendation that a single elected commissioner replace the three-member appointed board overseeing the Texas Commission on Environmental Quality.”

“A panel of lawmakers issued fi n a l s u n s e t r e v i e w s Wednesday for nine state agencies, recommending that t h e fi v e - m e m b e r Te x a s Transportation Commission be abolished and that the Texas Youth Commission and the Texas Juvenile Probation Commission merge, among a

“Gov. Rick Perry could gain even tighter control over the Te x a s D e p a r t m e n t o f Transportation under a series of proposals approved Wednesday by the Texas Sunset Advisory Commission. The panel voted 7-5 to abolish t h e fi v e - m e m b e r Te x a s Transportation Commission and place the department under the authority of a single statewide commissioner. Perry would appoint that commissioner, just as he has all five of the highway chiefs who now oversee the department, and the appointment would have to be confirmed by the Senate.” Stage Set for Budget Release

“In a surprise vote, the state Sunset Advisory Commission decided unanimously Wednesday to do away with

slew of other changes. The 12-member Sunset Advisory Commission also voted to change the name of the Texas Railroad Commission to the Te x a s O i l a n d G a s Commission, and said it should be headed by a single elected commissioner instead of the three who now govern it. The name change would better reflect the agencyʼs duties as regulator of the stateʼs oil and gas industry, Sunset staff concluded. The panel rejected Rep. Rafael

Texas Journal of Chiropractic

Sunset Commission Advocates Agency Changes The Austin American Statesman REPORTS HERE that "The Sunset Advisory Commission came out with a number of notable recommendations …."

The Statesman REPORTS HERE that "House Appropriations Committee Chairman Jim Pitts, RWaxahachi … echoed the commitment to Texans that the state will not raise taxes to balance the state budget." "But some membersʼ opposition to any new sources of state revenue might soften a bit once legislators see the concrete and local effects of balancing the 2012-13 budget by cuts alone, Pitts said at a talk sponsored by the Texas Tribune.

That budget will match the $72 billion revenue estimate unveiled by Comptroller Susan Combs ... and assumes no new revenue nor use of the $9.4 billion rainy day fund. Combsʼ estimate is $15 billion less than what was appropriated for general state operations in the 2010-11 budget and $27 billion shy of the amount agencies say they need to maintain the current level of services. ʻThere are no sacred cows this session,ʼ Pitts said.” "The stateʼs top priorities, however, will remain so. They will get the same proportion of state dollars, just drawn from a smaller pot. Under that equation, public education, for example, would get $4 billion less than the $36 billion in the current general fund budget." House Members Agree to Cut Their Own Budgets REPORTED HERE, the Statesman notes "Members of t h e Te x a s H o u s e o f Representatives voted ... to cut their own budgets, essentially a symbolic costcutting measure but one that could also end up shaving the salaries of some staffers." "When he introduced House Resolution 3, Rep. Charlie Geren, R-Fort Worth, told his fellow House members to lead by example as they head into a challenging legislative session."

"Members will have to find ways to save money this session, and each state agency could have to cut at least 10 percent of their budgets as lawmakers prepare to tackle a potential $27 billion budget shortfall." "After todayʼs vote, each member of the 150-member chamber will have his or her operating budget cut to $11,925 a month, down 10 percent from $13,250 per month." "The Houseʼs move ... wonʼt significantly affect the massive shortfall. But Rep. Mark Strama, D-Austin, said that since lawmakers will ask agencies to cut their budgets, they should live by the same rules." ".... members will have to decide to cut the salaries of their staff members, lay off people or supplement staff salaries with campaign funds."

accountability, transparency and efficiency,” he said. “Victims of frivolous lawsuits shouldnʼt have to bear the financial burden of defending themselves.” "The governor advocated a “loser pays” approach to such litigation, and called for expedited trials for lawsuits involving between $10,000 and $100,000 ...." More Body Guards The Statesman REPORTS HERE that "Executive security i n Te x a s i s n o t j u s t gubernatorial anymore and has been expanded to include the state's three other top officials after "credible threats" were documented. Lt. Gov. David Dewhurst confirmed ... that he had been provided state bodyguards on an asneeded basis starting last month, as have House Speaker Joe Straus and Attorney General Greg Abbott."

More Tort Reform HERE the Statesman reports "Gov. Rick Perry made the case for comprehensive tort law reform ... at a breakfast sponsored by the Texas Public Policy Foundation, which advocates for smaller government. Perry said lawsuit abuses are hindering Texasʼ otherwise welcoming business climate." “I hope the 82nd Legislature will consider improving our important tort protections during this session of the Legislature, with even greater 7

"For years, the governor was the only top official with an executive security detail, although the lieutenant g o v e r n o r, s p e a k e r a n d attorney general have been put under protection for short periods because of threats." "For their part, DPS officials remained mum on the change. They would not discuss any additional cost. 'We do not discuss security at the Capitol' or those protected, chief DPS Texas Journal of Chiropractic

spokeswoman Tela Mange said." "In recent months, as drugwar violence has flared along the Texas-Mexico border, Te x a s l a w m a k e r s h a v e acknowledged that they have been warned to be careful when they are in the area....Then came [the] slaying of a federal judge and wounding of a congresswoman in Arizona." "Yes, legislators are taking precautions when they go out in the border areas," said state Rep. Aaron Peña, REdinburg. "As elected officials, we have that threat ... and we can and do" ask for DPS escorts when out in public. I ask for it when I need it," Peña said. "We are living in different times now. ...The additional security is needed."

Texas Medical Association's endeavor to regulate a profession that is not its own. " T h e Te x a s B o a r d o f Chiropractic Examiners (TBCE) is the entity charged with regulating the practice of chiropractic in Texas as authorized under the 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 Te x a s Chiropractic Act which ... mandated that TBCE adopt a scope of practice rule."

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TMA v TBCE Appealed; Legal Brief Tells Story The matter of TMA v TBCE has been appealed to the Third Court of Appeals and its 30-plus page brief to that court may be found HERE [http://www.chirotexas.org/ node/546] in three parts. The brief includes a myriad of information and is used to create this article.

The brief then notes that "TBCE adopted its scope of practice rule in 2006, and Texas Medical Association (TMA) brought this suit challenging certain provisions of TBCE's rule." The Texas Medical Board (TMB) joined in t h e s u i t a n d t h e Te x a s Chiropractic Association "later intervened to raise constitutional challenges."

Here is a history of what has thus far happened in the

"In the fall of 2009," the brief continues, "the parties filed cross motions for summary judgment. On November 24, 2009, the trial court entered

Texas Journal of Chiropractic

Historical Summary

an order that granted TMA and TMB's motions as to manipulation under anesthesia (MUA) and needle electromyography (needle EMG) and denied their motion as to TBCE's use of '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 judgment regarding '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 the remaining issues concerning diagnosis and entered final judgment on September 7, 2010, which provided as follows: declared invalid and void [rules] concerning MUA; declared invalid and void [rules] 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 scope of practice of 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 Chiropractic Act as prohibiting MUA?" The reader is referred to the full brief for more detailed information; the following arguments are excerpted for t h e p u r p o s e o f o ff e r i n g illustration for the chiropractic p r o f e s s i o n ' s b e t t e r understanding. The Legislature Directs "In 2005, the Legislature amended the Chiropractic Act and made several changes regarding scope of practice, including 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 that TBCE adopt rules clarifying activities within the scope of practice through an inclusive rulemaking 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 scope of practice of 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 review addressed was TBCE's process for 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 "Manipulation under anesthesia (MUA) is a procedure that is jointly carried out by an anesthesiologist and a chiropractor in which a patient is placed under a general anesthetic so that a part of a patient's musculoskeletal system may be freely manipulated." The brief argues that "The trial court erred in applying its own construction of the 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 9

its general objectives. In determining 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 l a r i fi e d i t s a u t h o r i t y t o 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 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 Texas Journal of Chiropractic

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 use of a needle for 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 the musculoskeletal system .... TBCE construed the Act as a whole and harmonized its provisions."

a chiropractor 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 chiropractor may use needles for other purposes, including needle EMG, provided that no tissue is removed and that the use is not listed in the surgery section of the CPT Codebook."

In this way, the brief argues, "TBCE's construction is that if

"The trial court additionally relied on legislative history

Texas Journal of Chiropractic

"The court acted arbitrarily in applying the common 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 practice rule." "TBCE's construction is in harmony with the allowance for chiropractors to use needles for acupuncture, where the Legislature has provided that the use of needles is 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 instead looked to prior legislative history as part of the basis for its decision."

from 1995 as support for determing that needle EMG was not part of the scope of practice in Texas .... This reliance disregarded the subsequent ten year reviw of this issue, substantive changes made to the Chiropractic Act in 2005 as part of HB 972, and other statutory changes since 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 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 though the court's construction was in contrary to the Legislature's specific authorization for TBCE to promulgate a scope of practice rule." The brief points out that while in 1995 State Represenative Kyle Janek M.D. may have sought to prohibit chiropractors from the practice of needle EMG, "Representative Janek succeeded in removing the explicit authorization for TBCE to certify chiropractors to perform needle EMG ... the legislature did not adopt language that clearly excluded needle EMG from

the scope of practice" [emphasis added]. 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 during the Sunset Commission's review of TBCE prior to the 2005 legislative session. 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 definition of 'surgical procedure' and a directive that TBCE promulgate a scope of 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."

surgery section of the CPT Codebook and thus a surgical procedure under the Chiropractic act .... This limitation, however, must be construed in context with two other provisions." The brief then points out that chiropractors ARE authorized to perform nonsurgical, nonincisive procedures including adjustment and m a n i p u l a t i o n ; a n d t h a t manipulation of the musculoskeletal system is at the core of chiropractic." The brief argues that "all three provisions .... must be read together and harmonized in

qualification of chiropractors that perform MUAs." The brief concludes on this point that "TBCE's construction is consistent with the plain meaning of the statutory provision in the context of the chiropractic act as a whole .... While Representative Janek 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

Manipulation while Anesthetized

order to give effect to all of the provisions. TBCE's construction does that. The court's construction relies on a double negative ...."

"The trial court also erred in ruling that manipulation under anesthesia (MUA) was prohibited under the Chiropractic Act. The trial court erred in rejecting TBCE's construction of the Act as a whole and TBCE's harmonizing of all the Act's provisions" [emphasis added]. "The court and TBCE agree that MUA is listed in the

"TBCE's long-standing interpretation has been that," the brief states, "[the Act] prohibits the board from certifying MUA practitioners." Further, it notes, "TBCE's interpretation is also consistent with Representative Uher's statement that the original purpose of the amendment was to provide for the 11

The conclusion argued is that ".... the trial court e r r e d i n c o n s t r u i n g t h e Chiropractic Act and TBCE's scope of practice rule, giving too much weight to legislative h i s t o r y a n d i n s u f fi c i e n t consideration to TBCE's construction of the Act and the d e fi n i t i o n s and p o l i c i e s a d o p t e d b y rulemaking as directed by the Legislature." The brief concludes that "....the rule adopted by TBCE was a reasonable exercise of the Chiropractic Act'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." 

Texas Journal of Chiropractic

MDs in Congress: 3.36% of Membership As the new congress begins there will be a record number of 18 physicians in Congress-16 MDs in the House and two in the Senate. This represents a 64% increase over current numbers. Johns Hopkins research found "a total of only 25 physicians in the House or Senate in all the years from 1960 to 2004." The Senate will have double the number of MDs in the chamber: Incumbent Sen. Tom Coburn, MD (R-Okla.), a family physician will be joined by newcomer Rand Paul, MD (R-Ky.), an ophthalmologist. Paul is the son of Rep. Ron Paul, MD (R-Texas), an ob/ gyn. In the House, six physicians will be joining the 10 incumbents who kept their seats.

Republicans, there are three from Louisiana: •

cardiothoracic surgeon Charles Boustany,

•

FP John Fleming, and

•

gastroenterologist Bill Cassidy

and three from Georgia: •

orthopedic surgeon Tom Price,

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FP Paul Broun, and

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ob/gyn Phil Gingrey.

These 18 MD members of the 112th Congress represent 3.36% of the congressional members. MedpageToday reports that "Although that's a far cry from the 10.7% of the signers of the Declaration of Independence who were physicians, it's not that far behind the 4.6% of Congressional seats held by physicians over the first 100 years of our history.”

Texas has had two MDs in their congressional delegation:

The incumbents include nine Republicans and one Democrat. Among the

The lone Democratic physician in Congress will be incumbent representative Jim

Texas Journal of Chiropractic

•

Ron Paul and

•

Michael Burgess, both ob/gyns.

Another ob/gyn, David "Phil" Roe, of Tennessee, fills out the Republican physician contingent in the House.

McDermott, a psychiatrist from the state of Washington. The six new physician representatives, all Republicans, are: •

Larry Bucshon, MD, of Indiana, a thoracic surgeon;

•

Andy Harris, MD, of Maryland, an anesthesiologist;

•

Dan Benishek, MD, of Michigan, a general surgeon;

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Nan Hayworth, MD, of New York, an internist;

•

Scott DesJarlais, MD, of Tennessee, a family physician; and

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Joe Heck, DO, of Nevada, an emergency physician.

M e d p a g e To d a y i n t h e i r reporting notes “3.36% -doesn't even come close to a number that can control legislation. Oh, wait, it does. We've all watched as one vote tipped the balance on one bill o r a n o t h e r. T h a t ' s b e e n especially true -- and will be even more so come January -- in the Senate where the Democrat/Republican scales are so evenly balanced. If the physician members of the next Congress can sometimes forget about their party affiliation and vote, instead, as a professional bloc, then just maybe things like the SGR can get fixed. Or new health

legislation can reflect the realities of medical practice. Or at least maybe they can block passage of healthcare bills that make no sense. Just think: a new meaning for ʻDr. Noʼ!" 

TBCE Announces Two Final Rules and One New Rules Proposal T h e Te x a s B o a r d o f Chiropractic Examiners has announced two new rules which have been made final, and one new rules proposal. The new rule proposal concerns Rule 71.3, Qualifications of applicants. Bold type indicates additions, [brackets and italics] indicate deletions. Says the new rule: (a) - (b)(No change.) (c) For each student admitted a Chiropractic College 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 resultant 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: (1) All applicants [matriculants] must furnish proof of having earned a minimum of 90 semester hour credits of [appropriate preprofessional education] courses at an institution or institutions accredited by a nationally recognized agency not including courses included in a doctor of chiropractic degree program. [Included in these credits must be a minimum of 48 semester hour credits in the course areas noted in paragraph (2) of this subsection. In addition, all matriculants must have earned a cumulative grade point average of at least 2.50 on a scale of 4.0 for the courses listed in paragraph (2) of this subsection and for the required 90 semester hours. Quarter hour credits may be converted to equivalent semester hour credits. In situations in which one or more courses have been repeated with equivalent courses, the most recent grade(s) may be used for grade point average computation and the earlier grade(s) may be disregarded.] (2) All applicants [Matriculants] must present proof of graduation from a bona fide chiropractic college that is accredited by chiropractic educational accrediting body that is a 13

member of the Councils [sic] on Chiropractic Education International. [a minimum of 48 semester hours' credit (or the quarter-hour credit equivalents), distributed as follows:] [(A) English Language Skills: 6 semester hours;] [(B) Psychology: 3 semester hours;] [(C) Social Sciences or Humanities: 15 semester hours;] [(D) Biological Sciences: 6 semester hours. The Biological Sciences requirements must include pertinent laboratory experiences that cover the range of material presented in the didactic portions of the course(s); and] [(E) Chemistry: 12 semester hours. The Chemistry requirement may be met with at least 3 semester hours of general or inorganic chemistry and at least 6 hours of organic chemistry and/or biochemistry coursed with unduplicated content. At least 6 semester hours of the chemistry courses must include pertinent laboratory experiences, which cover the range of material presented in the didactic portions of the courses.] [(F) Physics and related studies: 6 semester hours. The physics requirement may be met with either one or more physics courses with unduplicated content (of which one must include a Texas Journal of Chiropractic

pertinent related laboratory that covers the range of material in the didactic portions of the course), or three (3) semester hours in physics (with laboratory) and three (3) semester hours in either biomechanics, kinesiology, statistics, or exercise physiology.] [(3) In each of the six distribution areas, if more than one course is taken to fulfill the requirement, the course content must be unduplicated. In the event an institution's transcript does not combine laboratory and lecture grades for a single course grade, the admitting institution may calculate a weighted average of those grades to establish the grade in that science course.] The proposed new Rule 71.3 would then read "(1) All applicants must furnish proof of having earned a minimum of 90 semester hour credits of courses at an institution or institutions accredited by a nationally recognized agency not including courses included in a doctor of chiropractic degree program. (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 Educational International." Rules 75.25 and 80.3 have been finally approved by the Texas Journal of Chiropractic

TBCE and are presented here for your edification: Rule 75.25 Impaired Licensees and Applicants. a) The board shall require a licensee or applicant to submit to a mental and/or physical examination by the appropriate health care provider designated by the board if the board has probable cause to believe that the licensee or applicant is impaired. An impaired licensee or applicant is considered to be one who is unable to practice chiropractic with reasonable skill and safety to patients by reason of age, illness, drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of material; or as a result of any mental or physical condition. (b) Probable cause may include but is not limited to, any one of the following: (1) sworn statements from two people, willing to testify before the board, that a certain licensee or applicant is impaired; (2) evidence that a licensee or applicant left a treatment program for alcohol or chemical dependency before completion of that program; (3) evidence that a licensee or applicant is guilty of intemperate use of drugs or alcohol;

(4) evidence of repeated arrests of a licensee or applicant for intoxication or offenses in which intoxication is a factor; (5) evidence of recurring temporary commitments to a mental institution of a licensee or applicant; (6) chiropractic records and/or medical records showing that a licensee or applicant has an illness or condition which results in the inability to function properly in his or her practice; or (7) medical records evidencing a mental or physical condition of the licensee or applicant. Rule 80.3 Request for Information and Records from Licensees (a) Request for chiropractic records. Upon request, a licensee shall furnish copies of chiropractic records or a summary or narrative of the records pursuant to a written consent for the release of the information or records. The requested information or record shall not be released if the licensee determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. The licensee may delete from the requested records confidential information about another person who has not consented to release. For purposes of this chapter,

"chiropractic records" means any records pertaining to the history, diagnosis, treatment or prognosis of the patient including records of other health care practitioners contained in the records of the licensee to whom a request for release of records has been made. "Patient" means any person who consults or is seen by a licensee for the purposes of receiving chiropractic care. (b) Written consent. (1) The written consent required by subsection (a) of this section shall be signed by: (A) the patient; (B) the patients' personal representative if the patient is deceased; (C) a parent or legal guardian if the patient is a minor; (D) a legal guardian if the patient has been adjudicated incompetent to manage his or her personal affairs; or (E) an attorney ad litem for the patient as authorized by law, including the Health and Safety Code, Title 7, Family Code, Chapter 11 or the Probate Code, Chapter 5. (2) The written consent shall c o n t a i n t h e s p e c i fi c information or chiropractic records to be released under the consent; the reasons or purposes for the release; and

the person to whom the information is to be released. (3) The patient, or other person authorized to consent, has the right to withdraw the consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal. Any person who received information made c o n fi d e n t i a l b y t h e Chiropractic Act may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release information was obtained. (c) Reasonable time. A copy of chiropractic records or a summary or narrative of the records requested under subsection (a) of this section shall be furnished by the licensee within a reasonable time, not to exceed 15 business days from the date of the request. (d) Denial of request. If the licensee denies the request under subsection (a) of this section for a copy of chiropractic records or a summary or narrative of the records, either in whole or in part, the licensee shall furnish the patient a written statement, signed and dated, stating the reason for the denial. Chiropractic records requested pursuant to subsection (a) of this section may not be withheld based on a past due account for care or treatment previously rendered to the patient. 15

(e) Fee for records. The licensee may charge a reasonable fee for furnishing the information requested under subsection (a) of this section, in accordance with the following provisions: (1) The fee shall be paid by the patient or someone else on the patient's behalf. (2) A licensee may require payment in advance except from another licensee or other health care provider, including a chiropractor licensed by any other state, territory, or insular possession of the United States or any state or province of Canada, if requested for purposes of emergency or acute medical care. (3) In the event payment is not received, within ten calendar days from notification of the charge, the licensee shall notify the requesting party in writing of the need for payment. (4) A reasonable fee for a paper copy shall be a charge not to exceed: (A)$30 for retrieval of records and processing the request, including copies for the first 10 pages; (B)$1.00 per page for pages 11-60; (C)$.50 per page for pages 61-400; and

Texas Journal of Chiropractic

(D)$.25 per page for pages over 400; (5) A reasonable fee for copies of films or other static diagnostic imaging studies shall be a charge not to exceed $45 for retrieval and processing, including copies for the first 10 pages, and $1.00 for each additional page over 10. (6) Reasonable fees may also include actual costs for mailing, shipping or delivery. (7) A reasonable fee for completing and signing an affidavit or questionnaire certifying that the information provided is a true and current copy of the records may not exceed $15.00. (8) In addition to the fee contemplated in paragraph (7) of this subsection, reasonable fees may also include the actual costs paid by the licensee to a notary for n o t a r i z i n g a n a f fi d a v i t , questionnaire, or other document. (f) Subpoena not required. A subpoena shall not be required for the release of chiropractic records requested pursuant to subsection (a) of this section. 

Ibuprofen and Migraines: Half-way effective. Texas Journal of Chiropractic

Medscape.com REPORTS HERE that "Ibuprofen is an effective treatment for acute migraine headaches, providing pain relief in about half of patients, but complete relief in only a few .... " Migraine is a common, disabling condition and a burden for the individual, health services and society. Many sufferers do not seek professional help, relying instead on over-the-counter analgesics. "The goal of this review was to assess the effectiveness and tolerability of ibuprofen, given as monotherapy or together with an antiemetic, vs placebo and other active treatment for relief of acute migraine headaches in adults." Conclude the authors: "Ibuprofen is an effective treatment for acute migraine headaches, providing pain relief in about half of sufferers, but complete relief from pain and associated symptoms for only a minority." 

United Healthcare's Response to "Nonessential" Chiropractic Service The ACA reports that " On October 27th we sent [ACA House of Delegate Members] 16

information about United Healthcareʼs Essential Benefits Guide in which various health care services are categorized as either Essential, Mixed, or Nonessential benefits .... I am pleased to report to you that one day after publicizing our displeasure at United Healthcareʼs Essential Benefits Guide the senior management of UnitedHealth Group and Optum requested a meeting with us to discuss the matter." "On November 2nd the ACA Executive Committee and key s t a ff m e m b e r s m e t w i t h UnitedHealth Groupʼs EVP/ CMO, a UnitedHealthcare National Medical Director, and Optum Physical Healthʼs Senior VP for Clinical Programs. We explained to them that the Essential Benefits Guide appeared to be an attempt to segregate and eliminate chiropractic services by listing them as "non-essential health benefits." We also noted that UnitedHealthcareʼs action was of concern because it categorizes “chiropractic” as a treatment versus a profession with multiple state-authorized diagnostic and treatment services available for patient care, an approach we have not seen taken by UnitedHealthcare with any other provider type." "Following the ACAʼs description of areas of concern UnitedHealthcare provided background on the development of the Essential

Benefits Guide. According to Mr. OʼConnellʼs notes, Dr. Reed Tuckson, UnitedHealth Groupʼs EVP and Chief of Medical Affairs, summarized the meeting and next steps as follows: Dr. Tuckson appreciated the courteous and candid manner in which the ACA presented their concerns. The purpose for creating the Essential Benefits Guide was to communicate UnitedHealthcareʼs interpretation of the PPACA which UnitedHealthcare was required to comply with by September 23, 2010 and for which Interim Final Rules have not yet been published. Insurers are required by the PPACA to categorize services using the terms “essential” and “nonessential” which, while not intended, can be misinterpreted to imply insurers have made a value judgment regarding individual services. UnitedHealthcare noted that they relied only on their e x i s t i n g c e r t i fi c a t e s o f coverage to determine which services to list as “nonessential”; there was no scientific analysis completed to make this determination. In categorizing “chiropractic” as a non-essential service, UnitedHealthcare did not intend to create the potential impression that all services provided by chiropractic

physicians were nonessential. UnitedHealthcare will review the Essential Benefits Guide to see if there is an opportunity to better describe the services that are categorized as non-essential. The ACA will have the opportunity to review any proposed changes prior to the release to the general public." "We believe that Dr. Tuckson is now aware of the possibility of misinterpretation of its categorization and will take a hands-on approach to oversee efforts to rectify the situation." 

DON'T Avoid the Draft! T h e Te x a s C h i r o p r a c t i c Association recently announced that some 14% of TCA members, and over 5 percent of the entire Texas Doctor of Chiropractic population, is making use of the TCA autodraft program for their dues, for political action contributions, for litigation contributions and for Chiropractic Defense Fund Contributions. 17

The autodraft program helps the profession save money by eliminating the billing statement, providing for continual dues and contribution payments, and allows for more efficient and effective business budgeting since the autodraft provides for a known quantity of regular income. Says the TCA "it's easy! The more who use the autodraft program the fewer envelopes and stamps we have to lick!" JUST CLICK HERE 

Chiropractic Advocacy Website Unveiled The chiropractic advocacy group MyTexasDoctor.org unveiled its new chiropractic advocacy website at www.mytexasdoctor.org today. The site is geared toward the general public and includes videos, information, donation links, and the ability to register to receive updates on the chiropractic profession and to Texas Journal of Chiropractic

address one's state representatives and government officials with a simple click of a button. Everyone is URGED to register at www.mytexasdoctor.org Here are some of the observed features of www.mytexasdoctor.org: A Call to Action Video presentation explaining "The Texas Medical Association (TMA) has taken legal action in an attempt to take away your ability to choose a Doctor of Chiropractic as your healthcare provider. TMA is claiming the law is unclear on whether your Doctor of Chiropractic is qualified to give you a diagnosis. The solution is to make the law perfectly clear: Doctors of Chiropractic can diagnose, and Texans can choose the type of doctor they desire for their healthcare." A What's At Stake Video explaining that "Through its lawsuit against Doctors of C h i r o p r a c t i c , t h e Te x a s Medical Association is attempting to set up their members as the gatekeepers who control access to health c a r e , e ff e c t i v e l y d r i v i n g Doctors of Chiropractic (their competition) out of business. If TMA is successful, Texas consumers who prefer to see Doctors of Chiropractic will be at a disadvantage – and certainly Texans who prefer to use chiropractors as their primary doctor will be forced to seek care elsewhere." Texas Journal of Chiropractic

A Take Action Now button where voters may send a direct e-mail to various government officials with issue specific templates. A Fund the Cause Button where ANYONE may contribute directly to the support and defense of the chiropractic profession in Texas. A Stay Informed Button where one may register to receive e-mail newsletter updates. A News and Updates S e c t i o n w i t h p d f fi l e s providing information for the public regarding the chiropractic profession's struggle to be allowed to provide services we have been trained to provide. A Fighting Back Section that explains what the public can do to insure that their access to chiropractic care is not limited or removed. Sponsored by the Texas Chiropractic Association the www.mytexasdoctor.org is a useful tool in sharing with the world the necessity for action in support of the chiropractic profession in Texas. 

Kaiser Reverses Adverse CMT Policy 18

The American Chiropractic Association reports that "Kaiser Permanente Mid Atlantic States and MidAtlantic Permanente Medical Group (Kaiser) has suspended its decision to exclude cervical Chiropractic M a n i p u l a t i v e Tr e a t m e n t (CMT) from coverage. The change came after the American Chiropractic Association (ACA) outlined in a letter to Kaiser the scientific evidence that documents that cervical spinal manipulation is both clinically effective and safe." "ACA took swift action in August when it learned that Kaiser had revised its Chiropractic Manipulation Medical Coverage Policy. Along with the letter outlining the large body of clinical research supporting the effectiveness and safety of cervical manipulation, ACA President Rick McMichael, DC, noted at the time in a public statement that, if allowed to stand, the restriction would be harmful to chiropractic patients and doctors. " "Kaiser responded to ACAʼs actions with a letter acknowledging that further consideration was needed and stating that the policy would be suspended. The insurer also recognized (in the letter) the value of keeping its Mid-Atlantic policies consistent with the other Kaiser regions, which do not have such a restriction on

CMT services provided by chiropractic physicians." "ACA will remain in touch with Kaiser to ensure that their future policies are based on the best available evidence. There is just no scientific evidence suggesting that a visit to a chiropractic physician for CMT causes any higher incidence of stroke than a typical visit to a primary care medical physician. ” 

care costs—making it one of the top 10 most costly conditions treated in the United States. "The study ... looked at Blue Cross Blue Shield of Tennesseeʼs intermediate and large group fully insured population over a two-year span. The insured study population had open access to MDs and DCs through selfreferral, and there were no limits applied to the number of MD/DC visits allowed and no differences in co-pays."

STARTING with Chiropractic Saves 40% on Low Back Pain Care A new study finds that low back pain care initiated with a doctor of chiropractic (DC) saves 40% on health care costs when compared with care initiated through a medical doctor. Featuring data from 85,000 Blue Cross Blue Shield b e n e fi c i a r i e s , t h e s t u d y concludes that insurance companies that restrict access to chiropractors for low back pain treatment may pay more for care than they would if they removed such restrictions. Low back pain is a significant public health problem. Some 85 percent of Americans have back pain at some point in their lives, and back pain treatment accounts for about $50 billion annually in health

"Results show that paid costs for episodes of care initiated by a DC were almost 40 percent less than care initiated through an MD. After risk-adjusting each patientʼs costs, researchers .... estimated that allowing DCinitiated episodes of care would have led to an annual cost savings of $2.3 million for Blue Cross Blue Shield of Tennessee."  19

The PR of Disease According to an article R E P O RT E D H E R E " T h e manner in which prescription drugs are marketed today can be readily understood if you read the 1928 book "Propaganda," by Edward Bernays, the father of PR. Bernays knew that public relations business was less about selling things than about creating the conditions for things to sell themselves." "Pharmaceutical marketers, following in his footsteps, sell drugs by selling diseases -- a system known as "disease branding .... Drug companies are master marketers and they fully embrace the ideology that Edward Bernays' -- the father of PR -- is most known for. Instead of trying to sell their drugs on their own merit, they invest untold amounts of money into creating diseases their drugs are meant to treat. By doing this, they create instant patients, patients who will likely go to their physicians and request the said drug by name." "Pharmaceutical companies spend more on marketing than research -- almost twice as much," the article cites and "Part of these costs often go toward hiring expensive PR firms, celebrity spokespeople, and physicians and academics to pedal their wares. As CNN reported, in order to market its Texas Journal of Chiropractic

antidepressant Paxil, GlaxoSmithKline hired a PR firm to create a "public awareness campaign" about an "under-diagnosed" disease. The disease? Social anxiety disorder … previously known as shyness .... As a result, mentions of social anxiety in the press rose from about 50 to over 1 billion in just two years … social anxiety disorder became the "third most common mental illness" in the U.S. … and Paxil skyrocketed to the top of the charts as one of the most profitable and most prescribed drugs in the United States." The article states "Clearly there was not a rapid rise in the number of people suffering from extreme shyness during this time … there was just a masterful marketing campaign that successfully whispered into enough people's ears, 'If you're shy or nervous around others, you need to take this drug.'" The article further observes "One of the key strategies that drug companies depend on to make medicalization of society work is targeting your news media with stories designed to create fears about a condition or disease, and draw attention to the latest treatment. This has led to problems on several key levels: People with benign, normal symptoms end up taking dangerous drugs. Once you're convinced that natural signs of aging and common conditions are diseases or Texas Journal of Chiropractic

treatable symptoms, you take drugs for such things as balding, anxiety, mild bone loss and indigestion, which puts your health at risk over issues that were not true illnesses or risks in the first place." Another problem cited is that "many of these conditions are entirely treatable with diet and lifestyle modifications" and people will ignore the improvement of function for the convenience of a dangerous drug. The article observes "People who are tested regularly end up undergoing unnecessary treatments with drugs and invasive surgery. Very few people after middle age can pass standard medical tests without being told that they have some sort of "risk." This risk is then turned into a pseudo-disease leading to such things as dangerous breast and colon surgery and "preventive" medications, instead of outlining natural strategies that would actually help a person's health to thrive." Most obvious, however, is that "As a result of "disease mongering," the more the medical industry influences a nation, the sicker that nation "considers itself to be." It eats away at your self-confidence and teaches you that you're weak and incapable of staying well, and that all signs and symptoms are potentially dangerous conditions and diseases." 20

"The only winners in this grand scheme are the ones who profit financially." "The only way to break out of this self-destructive system is to take a stand for yourself, and take control of your own health." 

The AMA's Gift to Chiropractic? Jeffrey Cronk, DC, CICE, writes in an article entitled Alteration of Moation Segment Integrity: the AMA's Gift to Chiropractic? and R E P O RT E D H E R E , t h a t "Alteration of motion segment integrity (AOMSI) is a significant gift from the AMA that allows us to methodically locate, substantiate and objectively prove the severity of the spinal subluxation. Of course, it comes as a gift only as long as we handle it with a high level of responsibility." "Alteration of motion segment integrity is determined by exact mensuration procedure published in the AMA Guides to the Evaluation of Permanent Impairment. It is a spinal subluxation that can be objectively identified with a high degree of accuracy, especially when one acknowledges the advancements that have occurred in assessment of stress imaging (X-ray, DMX)."

"Historically, AOMSI first showed up in writing in June 1993, when the AMA developed the injury model of spinal assessment and listed the findings and criteria in its new DRE (Diagnosis Related Estimate) categories. This w a s t h e fi r s t o p e n acknowledgment from the AMA that spinal subluxation's could cause significant, and perhaps permanent, reductions in a patient's health status. This meant that the AMA had validated what we had been stating for a very long time. Ironically, this validation came some six years after the resolution of the Wilk case." "Some in our profession understood this "open acknowledgement" for what it really was and made sure AOMSI was included in the first chiropractic practice guidelines to be published in the federal government's National Guideline Clearinghouse Project (NGC). They had the foresight to make sure, with strong peer review, that AOMSI was within the scope of chiropractic management and listed as a component of the vertebral (spinal) subluxation complex. These guidelines were first published in 1998 and have had two successful and very helpful revisions, still listed in the NGC today." "The 1990s seemed to be the explosion years for "evidencebased health care." The lynchpin was guidelines. Inherent in guidelines is that

fact that they are objective. Inherent in the term objective is the ability to verify the presence of; anyone can read and verify what is in a guideline, which is why they are so important. Guidelines build consensus, which builds group solidarity of belief or sentiment. We often see that guidelines in one area are cited for the foundation of other guidelines. This guideline-building p h e n omenon has led to further validation of the s i g n i fi c a n c e o f A O M S I fi n d i n g s a n d , i f w e acknowledge and apply it, leads to further credibility of our profession as the leaders; the body with the longest and highest level of experience in spinal subluxation management."

contraindication to return to contact sports, which makes complete sense. Why would you put an athlete with this level of spinal ligamentous injury right back into fullcontact sports, without stabilizing the injury and allowing it to heal? These guidelines provided further consensus as to the significance of the findings of AOMSI. This fact seems to go unnoticed and unacknowledged by some in our profession."

"All providers were engaging in this activity, including the sports medicine specialists .... These providers were building guidelines to handle the health and safety of athletes who received an injury or had a condition that could affect their ability to safely participate in their chosen athletic activity. They needed to develop guidelines (consensus) as to what to do with athletes when they sustained certain types of injuries...."

"The chiropractic profession established the technology to assist with accurately and reliably locating AOMSI. The AMA gave it a name and credibility, and established its significance. It is now time for our profession to fully endorse and incorporate the evaluation of AOMSI in every one of our patients who has suffered a traumatic injury to their spine."

"These guidelines openly acknowledged that spinal subluxations due to spinal ligament damage can be serious and included them. AOMSI findings now became either a relative or an absolute 21

"Common sense tells us that patients who have significant spinal subluxations from acute ligament trauma need to be managed by providers who understand the significance of the condition they are treating."

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Check ww

w.chirotex as.org Click HER E for the “Texas Jo urnal of Chiroprac tic”

Texas Journal of Chiropractic

Palmer College President Retires After 50-Year Career Concluding a career that has spanned more than 50 years, Donald P. Kern, D.C., Ph.C., president of the Davenport Campus of Palmer College of Chiropractic, has announced his retirement.

TCC, TSU Enter Into Academic Partnership Texas Chiropractic College (TCC) and Texas Southern University (TSU) have entered into an academic partnership, signing an articulation agreement. This agreement facilitates the admission and academic transfer of students from TSU to TCC ensuring a seamless transition of students seeking to complete their Bachelor of Science degree from TSU, while at the same time pursuing a Doctor of Chiropractic degree through TCC. The agreement will enable future and current TSU students to complete both degrees in six years, with the first three occurring at TSU and the final three at TCC. 

Texas Journal of Chiropractic

A 1958 graduate of Palmer College, Dr. Kern earned his Doctorate of Chiropractic Philosophy in 1959. His professional career with Palmer began in 1960 when he joined the B.J. Palmer Clinic staff. He served as a

faculty clinician until 1976 and also held the post of clinic director from 1965 to 1970. Dr. Kern held numerous administrative positions at Palmer. Dr. Kern was named senior campus administrator at Palmer Collegeʼs Florida Campus upon its opening in 2002. In 2004, he was named interim president of Palmerʼs Davenport and Florida campuses. In 2005 when he was named president of the Davenport campus for an unprecedented second time.

"Five generations of the Kern family have graduated from Palmer College with Dr. Kern as part of the third generation. “My grandfather, Clyde G. Kern (ʼ21), and my father, Donald O. Kern (ʼ23), were both Palmer graduates, as well as my older brothers, Raymond T. (ʼ50) and James O. (ʼ52), so I was introduced to The Fountainhead early on,” said Dr. Kern. “I decided on a career in chiropractic as a teenager and it was a natural choice to come to Palmer.” That passion has been passed on to his children and grandchildren. Dr. Kern and his wife of 53 years, Nancy, are parents of three children: Gregory Kern, D.C.

(Davenport ʼ84), Jeffrey Kern and Karen Onken, D.C. (Davenport ʼ97). Dr. Gregʼs son, Zachary, represents the fifth generation as a 2007 graduate of the Davenport Campus. 

Parker in Haiti D r. F a b r i z i o M a n c i n i , president of Parker College of Chiropractic, and Dr. Gilles Lamarche, vice president of Parker Seminars traveled to Haiti where they served the

people in the earthquake devastated country. The two provided much needed care for the people in the destitute country. The trip was led by ChiroMission (CM) cofounders, Dr. Todd Herold, vice president and cultural liaison of CM, and Dr. JC Doornick, president of CM. The group included a team of 68 chiropractors, students, and volunteers. Dr. Doornick assembled a team of 11 and headed across the border from their entry point of Puerto Plata, Dominican Republic and began serving in Haiti. Meanwhile in Puerto Plata, Dr. Herold announced the coming aid through television and radio to prepare the northern coast of the Dominican Republic. Over the course of one week, the teams gave nearly 70,000 chiropractic adjustments.

The group also raised funds for food, clothing, and toy donations to people in the communities. In addition, notebooks, pencils, and other school supplies were distributed to local schools. Teachers that have been working for free will also now receive a monthly donated salary. ChiroMissionʼs goal is to promote chiropractic and adjust people throughout the world, especially in third world countries where resources are so limited. They also cultivate students of chiropractic from those deprived areas so they may return to their countries a n d w o r k i n o f fi c e s established by ChiroMission. They also raise necessary funds to help those in need reclaim their lives and gain a satisfactory standard of living.

in the complementary and alternative healthcare disciplines. Said the medical school: ".... the academic affiliation is intended to “… break down the silos that hold the disciplines apart and create relationships between the disciplines and the educational institutions that prepare the nationʼs future healthcare providers.” ".... Georgetownʼs unique Master of Science in Physiology program that emphasizes complementary and alternative medicine in an effort to provide instruction in three areas: grounding in science (especially systems and cell physiology), introductory exposure and understanding of CAM disciplines and philosophies, and the ability to rigorously

 During the trip, nearly $55,000 was raised by the doctors, their patients, and volunteers. Dr. Lamarche spearheaded 90 percent of the effort after visiting a dilapidated mosquito infested orphanage housing 25 children. Dr. Lamarche learned of the effort to move the children to safety and accommodate another 50 abandoned children with $30,000. Within three hours, Dr. Lamarche raised more than $30,000 and the construction had already begun. The team will see the completion of the safe house on their next trip in March 2010.

NYCC Teams with Med School Georgetown University Medical School has selected N e w Yo r k C h i r o p r a c t i c College (NYCC) to assist it in training licensed professionals 23

assess the state of evidence regarding safety and efficacy of various CAM therapies. With this education in hand, students may then pursue career options related to research (advanced study leading to the doctorate degree), policy and administration (in government or the non-profit sector), or Texas Journal of Chiropractic

continue their training in one of the health professions." "NYCCʼs robust research program and widespread reputation for academic excellence among chiropractic and acupuncture professionals made it an attractive candidate for the affiliation. Pleased with the new collaboration, NYCC Executive Vice President and Provost Dr. Michael Mestan said, “We welcome the opportunity to partner with a university the caliber of Georgetown, and are enthused at the prospect of training such capable students with expressed interest in natural healthcare.”

drug reps per month, but that there was no change for anesthesiologists and surgeons. 

In Other News... •

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70.8% said they received any gifts, down from 83% in 2004.

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18.3% said they had received reimbursements for such things as meeting attendance, down from 2004's 35%.

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14.1% said they had been given payments for such things as serving on advisory boards and enrolling patients in clinical trials. In 2004, the comparable figure was 28%.

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Physician-Pharma Industry Contact Remains High Physicians are reporting fewer relationships with the pharmaceutical industry and the frequency of all types of such relationships has fallen significantly since 2004, yet more 80% of doctors still report at least one connection. The results of a recent study showed "that 83.8% of respondents reported at least one type of 'physicianindustry' relationship, down from 94% in 2004." The study found that

Texas Journal of Chiropractic

63.8% said they received drug samples, compared with 78% in 2004.

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There was also a decrease in the number of meetings between physicians and drug representatives in an average month from three per month to only two per month.

The study found that pediatricians, internal medicine specialists, family practice physicians, and cardiologists all saw fewer 24

27% of Hospitalized Medicare Patients Experience Adverse Events The Office of the Inspector General in the Department of Health and Human Services reports that "An estimated 13.5% of hospitalized Medicare patients experience adverse events ranging from pulmonary embolisms to wrong-body-part surgery, and such events result in the death of 1.5% of all hospitalized Medicare patients.” Another 13.5% of hospitalized Medicare patients experience minor adverse events such as excessive bleeding and prolonged nausea that cause temporary harm. Of the major and minor adverse events combined, 44% are preventable, and all these events accounted for an estimated $4.4 billion in Medicare inpatient spending in fiscal year 2009 the OIG reports. "On the basis of these fi n d i n g s , the OIG recommends that the Centers for Medicare and Medicaid

Services and the Agency for Healthcare Research and Quality broaden their definition of adverse events and work harder to identify them. In addition, the Centers for Medicare and Medicaid Services should expand the list of adverse events for which it will not foot the bill and should look for opportunities to hold hospitals accountable for adopting evidence-based practice guidelines, according to the OIG." 

"Whistle-blower Cheryl Eckard, a former GSK quality assurance manager, will receive about $96 million of the $436.4 million federal share. The award is the largest to an individual under the False Claims Act, according to Justice Dept. spokesman Charles Miller. The act's whistle-blower provisions allow private citizens to sue on behalf of the United States and share in any recovery. Eckard filed the original complaint in February 2004, according to her attorneys, Getnick & Getnick

recovery under an effort by HHS and the Dept. of Justice, known as Health Care Fraud Prevention and Enforcement Action Team, or HEAT Task Force. The team, unveiled in May 2009, helped recover nearly $3 billion in Medicare and Medicaid fraud in fiscal 2009. The national health reform law includes $350 million during the next decade, among other measures, to combat fraud in the health system."

of New York."

"Federal attorneys said they will pursue similar cases. 'The knowing, unlawful distribution of drugs whose strength, purity and quality are not reliable undermines the integrity of our health care system, and we will continue to pursue these types of violations,' said Tony West, assistant attorney general for the Justice Dept.'s Civil Division."

Pharmaceutical Company Hit with $750 M Penalties The American Medical Association REPORTS HERE that "Attorneys representing the Health and Human Services Dept., states and a whistle-blower announced on Oct. 26 that pharmaceutical m a n u f a c t u r e r GlaxoSmithKline will plead guilty to selling faulty drugs to Medicare and Medicaid and pay $750 million in penalties. The agreement is the latest milestone in a federal effort to combat Medicare and Medicaid fraud." "The GSK payments will be split among the federal government, an undetermined number of states and a former GSK employee-turnedwhistle-blower."

"The previous overall largest False Claims Act whistleblower payment was more than $100 million to two individuals as part of a $1.7 billion Medicare and Medicaid fraud settlement with hospital chain HCA Inc., announced in June 2003." "States will receive up to $163.6 million in the GSK case." "The case is also the latest Medicare and Medicaid fraud 25

"The $750 million GSK penalty is based on the net sales of four drugs .... GSK will admit to selling limited numbers of faulty batches of the drugs to Medicare and Medicaid. The drugs -manufactured at GSK's Cidra, Puerto Rico, facility between 2001 and 2005 -- were antinausea medication Kytril, topical antibiotic Bactroban, antidepressant Paxil CR, and type 2 diabetes drug Avandamet."

"The investigation did not find any evidence that the faulty drugs harmed consumers, said Christina Sterling, Texas Journal of Chiropractic

Antidepressant Approved to Treat Back Pain

spokeswoman for the U.S. Attorney's Office for the District of Massachusetts. The investigation also involved the FDA, the FBI and the Office of Inspector General, among others." "GSK sent Eckard to the Cidra factory in August 2002 to lead a team of scientists and q u a l i t y e x p e r t s t o fi x manufacturing violations cited by the FDA, according to her attorneys. Eckard discovered manufacturing problems not i d e n t i fi e d b y t h e F D A , including mixed-up products, diabetes drugs with too much or too little of the clinically effective ingredient, a nonsterile area of the facility that was used to make injectable drugs and a water system contaminated with microorganisms."

The FDA has now approved an antidepressant, duloxetine hydrochloride (Cymbalta), to treat chronic back pain and osteoarthritis pain. The FDA granted the new indication based on results of four double-blind, placebocontrolled, randomized clinical trails in which patients randomized to duloxetine reported a greater reduction compared with the placebo group. The approved dose is 60 mg/daily. "In addition to its use for treatment of depression, duloxetine is approved for treatment of diabetic p e r i p h e r a l n e u r o p a t h y, generalized anxiety disorder, and fibromyalgia."

"Eckard urged GSK managers to fix the problems at the C i d r a f a c i l i t y, i n c l u d i n g shutting down the plant, according to Getnick & Getnick. GSK fired Eckard in May 2003. The FDA seized $2 billion worth of drugs from the Cidra facility in October 2003 and February 2005, according to Eckard's attorneys."

"The most common side effects reported in the back pain and osteoarthritis trials were nausea, dry mouth, insomnia, drowsiness, constipation, fatigue, and dizziness. Other serious side effects, which occurred in less than 1% of patients, included liver damage, allergic reactions such as hives, rashes and/or swelling of the face, pneumonia, depressed mood, suicide, and suicidal thoughts and behavior."

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Texas Journal of Chiropractic

Antibiotics for Ear Infections Adversely Effective up to 10% of the Time A recent report in MedpageToday.com states that "The meta-analysis of 135 studies conducted among children ages four weeks to 18 years, also suggested that antibiotics were only "modestly effective" in treating the infection -- while causing adverse effects in 4% to 10% of pediatric patients ...." "At the same time, the review revealed large gaps in knowledge about the common condition ....The researchers noted the lack of a "gold standard" for diagnosing otitis media -- which means that clinical methods based on otoscopy (findings of tympanic membrane bulging and redness) and symptoms are the only way to diagnose the common childhood condition." "Background provided in the review noted that acute otitis media is the most common childhood infection for which antibiotics are prescribed in the U.S. The authors cited a 2006 study which estimated the average cost of treating a child with a middle ear infection at $350 -- adding up to $2.8 billion in annual medical expenses." "The researchers were able to pool data from seven placebo-

controlled studies of amoxicillin or ampicillin, comprising about 2,000 patients. Clinical success rates at day 14 were 12 percentage points higher with the antibiotics relative to placebo. But the average success rate with placebo was 60%, raising questions as to whether adverse events -- chiefly rash and diarrhea -- offset the benefit." "The researchers cited government data indicating that 14% of children with otitis media receive cefdinir. 'If just half of [these patients] were to receive amoxicillin instead of cefdinir ... the estimated annual savings would exceed $34 million,' they wrote."

There are about 1,900 schoolbased health centers nationwide, according to the National Assembly on SchoolBased Health Care, a n o n p r o fi t b a s e d i n Washington, D.C. A majority of the centers -- 96% -- are in school buildings, and the remaining ones are in separate facilities on school properties or are mobile programs. "The majority of students helped by school-based centers fall through the cracks of the health care system … and are not covered by Medicaid, school medical services or a primary care physician." School-based health centers are health clinics that:

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School-based Health Centers The Department of Health and Human Services announced grants for doctors' offices that usually are based on school grounds and provide comprehensive medical, dental, mental and community-based services to students and families. HHS calls the centers 'a major component of the nation's health care safety net.'" "The additional money will help children with acute or chronic illnesses attend school and improve their health through screenings and disease prevention."

Use physicians and other health professionals to provide primary health care services to children in accordance with state and local laws. Are located in or near a school facility of a school district or board, or an Indian tribe or tribal organization. Organize through school, community and organized medicine relationships. Are administered by a sponsoring facility, such as a hospital, public health department, community health center, nonprofit health care a g e n c y, l o c a l e d u c a t i o n agency or the Indian Health 27

Service or the Bureau of Indian Affairs. 

Obesity is a $30.3 Billion Workplace Problem Data from two large national surveys indicated that obesity is associated with $30.3 billion in direct medical costs, $12.8 billion in workplace absenteeism, and $30.0 billion in "presenteeism" -- at work but less productive because of health problems. "Between excess medical costs and lost workplace productivity, individuals with body mass index values of 30 or more cost the U.S. economy about $73.1 billion annually, researchers said.” Women who were overweight had 1.1 more days of missed work annually, 0.9 days of lost productivity while on the job and $529 of additional medical expense. For those with grade I obesity: 3.1 more days of missed work, 6.3 days of lost on-the-

Texas Journal of Chiropractic

job productivity, and $1,274 in additional medical costs. Those with grade III obesity reported means of 9.4 additional days of missed work, 22.7 days of lost productivity, and $2,395 more in medical expense. The values for men were smaller. The extra annual medical expense for grade III obese men was $1,269 and additional lost workdays numbered 5.9. Men who were classed as overweight rather than obese did not have significantly higher medical costs than those of normal weight, and they actually had fewer days of presenteeism. Among women, direct medical costs tended to be affected most strongly by excess weight. When extrapolated to the entire population -- taking into account that grade I obesity is more common than grade III, and that more men than women hold jobs -- the aggregate economic impact was about the same across all three levels of obesity and for men versus women." "For men and women combined, the total economic cost of grade I obesity was $29.4 billion, compared with $23.1 billion for grade III obesity. Across all levels of obesity, the total cost was $33.8 billion for men and $39.3 billion for women."

Changing Dogma of Medicine G e o r g e Lundberg, MD, Editor-at-Large, for MedPage To d a y, i n a November 10, 2010, editorial FOUND HERE makes several observations regarding what science assumes to be "state of the art". He observes "once an erroneous 'fact' becomes established dogma in the mind and actions of the profession and the public, it is very hard to change that belief and those practices. Of course, a change also interrupts many income streams." Finally! Someone in the medical profession is realizing that medical dogma is hard to change and that income is a primary impediment to promoting that change. Scientists in the chiropractic profession have been trying to point this out to our profession for years now. It is unusual to see the editor of a large medical publication stating virtually the same message.

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The point of Dr. Lundberg's editorial, however, was not to highlight medical dogma, but to illustrate that science outpaces dogma. He states that "One by one, the big-time screening tests for dread

Texas Journal of Chiropractic

diseases, begun with good intentions, the best science known at the time, and a mass public health campaign, bite the dust." "Sometimes the most intuitive and seemingly l o g i c a l observations and conclusions are simply wrong." Observes Dr. Lundberg: "Real science, that of statistically and clinically valid outcomes over time, obviously takes time to be realized. It also takes unbiased scientists and physicians with minimal conflicts of interest to study, deduce, report and then take the heat while putting change into practice." It seems that the key obstacle is the availability of "unbiased scientists and physicians." The purpose of Dr. Lundberg's editorial was his call to "Stop pushing screening m a m m o g r a m s n o w. " H e reports that "The new large study out of Norway reported in the Sept. 22, 2010 issue of NEJM again documents that any benefits of mammography are so small. [And] We already know that the harms and costs [for the procedure] are not small." He reports that "Finding a breast cancer or a prostate cancer early so it can be treated when tiny seems so logical. However, such an

approach has always meant also finding "cancers" that are not going to hurt the patient even if untreated." He notes that "in the 1960s, I worked for a while as a pathologist in west Texas. One hospital there was famous for its very high breast cancer cure rate. Then someone looked at some of those 'cured breast cancers.' Guess what; on [a] pathologist second opinion, many were not cancers in the first place." He reports "The strangely controversial 2009 recommendation of the U.S. Preventive Services Task Force, which downplayed the value of mammograms is looking better all the time. It further said that the patient and the physician together should consider the data and share in deciding about mammography. I like that, especially if both the patient and physician are well informed. Stop pushing screening mammograms now." It may be difficult, if not sometimes impossible, to change the dogmatic mindset of a healing arts professional, but at least one MD recognizes that "once an erroneous 'fact' becomes established dogma in the mind and actions of the profession and the public, it is very hard to change that belief and those practices" and that it "interrupts many income streams." Now, if we could JUST change the dogma of political medicine.

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Documentation of Supplement Usage Lacking 73% of the Time. M e d p a g e To d a y. c o m REPORTS HERE that "Although nearly half of older adults take some kind of herbal or dietary supplement, most of them don't tell their healthcare provider -- or are not even asked about supplement use, researchers reported here." "A survey of 100 patients taking the anticoagulant warfarin (Coumadin) found that 69% took some kind of herbal or dietary supplement, but only 35% reported that their healthcare provider asked them about supplement use ...." "The survey noted that 63% of warfarin-treated patients had used a supplement without first consulting their provider, despite the fact that 54% recognized herbal and dietary supplements can act as drugs. Only 33% of patients in the study learned about herbal or dietary supplements from a healthcare professional." "Information on supplement or herb use was not noted in the medical records of 73% of patients. Supplement use is going up, patients are using them more and more, and 29

they often don't talk to their doctors about it for various reasons. ... [Patients] don't see herbal supplements as drugs; they don't think about the supplements they're taking because they think they're natural, they're safe, and they're not medications." Stated one cardiologist in the report: "As a practicing cardiologist, patients frequently ignore listing supplements when filling out medication history for their physicians, and physicians, pressed for time, do not routinely spend time exploring this. Yet, literally millions and millions of Americans take various dietary and nutritional supplements on their own, not p r e s c r i b e d b y, a n d s o unknown to, their physician." It appears as if the medical physician is falling down on the job of seeking to document these chemical supplements. The authors note "that doctors should prompt patients to disclose supplement use, that the supplement industry should provide labeling that lists potential drug interactions, and patients should not balk at talking to their doctors about nonprescription remedies they use." The study's authors "concluded that unrecognized interactions between warfarin and herbal or dietary supplements could cause bleeding or stroke complications. They cited increased stroke risk from reduced INR in patients taking Texas Journal of Chiropractic

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Texas Chiropractic Association Serving Texas Chiropractors and their patients for nearly 100 years! Are You supporting your profession? www.chirotexas.org 1122 Colorado, Suite 307 Austin, TX 78701 Phone: 512 477 9292 Fax: 512 477 9296 E-mail: info@chirotexas.org