Mar-Apr 2011 Issue by Texas Chiropractic Association

Texas Chiropractic Association

Texas Journal of Chiropractic Volume XXV, Issue 2 March/April 2011

TBCE NOW: Requires Eight Hours of Medicare CE; Restricts Prepaid Contracts for Multiple Treatments Proposes More Rules Changes and Sanctions TMA v. TBCE (II)--NEW Lawsuit Filed by Medical Profession Texas Court Reverses Decision on Vertebral Artery Dissection Governor Seeks Agency Consolidations Congress Seeks to Expand Chiropractic Role in Military health Chiropractic Ranks High Among Health Career Choices

March 11-13

I understand !"#$%!&%#'())*#+,-!

%(&$.,.*#+!,+/!,))(.)

are at stake in the event of a malpractice claim. —Donnis Francois, OUM Claim Specialist

Should a claim arise, you may want to make the decision to pursue other options. That’s why we will not settle any claim without your written consent.* Also, your claim will be reviewed by a chiropractic peer. You won’t see this level of commitment at other insurance companies. For more information or a no-obligation quote, call us at (800) 423-1504 or visit us online at oumchiropractor.com. *Except where prohibited by law. "OUM" and "OUM Chiropractor Program" do not refer to a legal entity or insurance company but to a program or symbol of a program underwritten, insured and administered by either PACO Assurance Company Inc. or PICA, both with Excellent ratings (A- and A, respectively) by A.M. Best.

Texas Chiropractic Association

Texas Journal of Chiropractic March/April 2011

Volume XXV, Issue 2

Texas Journal of Chiropractic

Inside

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.

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 Quinlan 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.

TBCE Adopts, Proposes, & Considers Rules Changes

NEW Lawsuit Filed--TMA v TBCE (II)

The Who, What, and When of TMA v TBCE (I)

The Why of TMA v TBCE (I)

Governor Seeks Agency Consolidation

Vertebral Artery Dissection Decision Reversed

Appeal Your Denied Insurance Claims

TCA at the Capitol

Federal Judge Overturns Health Reform A Summary of Legal Challenges

Congressional Proposal on Veteran’s Chiropractic Care

ERISA Class Action Against UnitedHealth Group

Medicare “Float” Nets Insurance $1/3 Billion

Medical Marketing Machine

Public Less Confused About Chiropractic

Chiropractic Still Ranks High Among Career Choices

College News

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

Gov. Agency Adopts, Proposes, and Considers New Chiropractic Rules Changes T h e Te x a s B o a r d o f Chiropractic Examiners on Thursday, February 10, 2011, adopted rules changes and voted to consider many other rules proposals.

(b) Requirements. (b)(1) Every licensee shall attend and complete 16 hours of continuing education each year unless a licensee is exempted under subsection (d) of this section. Each licensee's reporting year shall begin on the first day of the month in which his or her birthday occurs.

NEW RULES PASSED: "...amendment to Rule 73.3 concerning requiring 8 CE hours of Medicare coding/ documentation." Dr. Kathleen Summers moved and Dr. Pat Thomas seconded to adopt this amendment requiring that eight hours of “Medicare coding and documentation” be provided for the continuing education of chiropractic doctors in Texas. The TBCE passed the measure by a 3 to 2 vote. This amendment was p u b l i s h e d i n t h e Te x a s Register and reported in the Te x a s Journal of C h i r o p r a c t i c ( AT T H E ARTICLE FOUND HERE). RULE §73.3 Continuing Education (a) Condition of Renewal. A licensee is required to attend continuing education courses as a condition of renewal of a license.

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(b)(2) The 16 hours of continuing education may be completed at any course or seminar elected by the licensee, which has been approved under §73.7 of this title (relating to Approved Continuing Education Courses). (b)(2)(A) A licensee must attend any course designated as a "TBCE Required Course," and the course may be counted as part of the 16 hour requirement. Effective with all doctor of chiropractic licenses renewed on or after July 1, 2009, a minimum of four of the 16 required hours of continuing education shall include topics designated by the board. (b)(2)(A)(i) A minimum of two hours of the total required continuing education shall consist of an ethics course specifically related to the practice of chiropractic. In addition to the requirements in §73.7, an instructor for this continuing education must have a doctorate degree and must either have an active license to

practice chiropractic or law or be part of the full-time faculty of a chiropractic college accredited by the Council of Chiropractic Education. This continuing education may not be taken online except as provided under paragraph (4) of this subsection. (b)(2)(A)(ii) A minimum of one hour of the total required continuing education shall relate to risk management relating to the Chiropractic Act, the board's rules, and other laws relevant to the practice of chiropractic in Texas. For the purpose of this rule, risk management refers to the identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method of correcting, reducing, or eliminating, identifiable risks. In addition to the requirements in §73.7 of this title, a risk management instructor shall have a doctorate degree and must either have an active license to practice chiropractic or law or be part of the fulltime faculty of a chiropractic college accredited by the Council of Chiropractic Education. This continuing education may be taken online through a course offered by the board. (b)(2)(A)(iii) A minimum of one hour of the total required continuing education shall consist of recordkeeping, documentation, and coding relevant to the practice of c h i r o p r a c t i c i n Te x a s . I n addition to the requirements in §73.7 of this title, a recordkeeping, documentation, and coding instructor shall have a doctorate degree and must either have an active license to practice chiropractic or law or be part of the full-time faculty of a chiropractic college accredited by the Council on

Texas Journal of Chiropractic

Chiropractic Education. This continuing education may not be taken online except as provided under paragraph (4) of this subsection. Notwithstanding the requirements in this clause, all chiropractic licensees must complete at least eight hours of continuing education in coding and documentation for Medicare claims during either calendar year 2011 or 2012, except that licensees who receive their initial Texas chiropractic license on or after September 1, 2012, have 12 months after their initial licensure date to complete the eight hours of continuing education in coding and documentation for Medicare claims. No licensee who was initially licensed in Texas prior to September 1, 2012, shall be allowed to renew his or her chiropractic license at any time during calendar year 2013 unless he or she has completed the required eight hours of continuing education in coding and documentation for Medicare claims during either calendar year 2011 or 2012. Licensees who were initially licensed on or after September 1, 2012, must complete the eight hours of continuing education in coding and documentation for Medicare claims no later than one year after their initial licensure in order to be eligible to renew their licenses at their next renewal date on or following the first annual anniversary of their original licensure date. The eight hours of required continuing education in coding and documentation for Medicare claims may be counted as part of the total of 16 continuing education hours

Texas Journal of Chiropractic

required during the year in which the eight hours were completed. (b)(2)(A)(iv) In addition, from time to time, the board may issue public memoranda regarding urgent or significant public health issues that licensees need to be aware of. The board will publish such memoranda on the board's web site and distribute the memoranda to the major continuing education providers. (b)(2)(B) A licensee who serves as an examiner for the National Board of Chiropractic Examiners' Part IV Examination may receive credit for this activity, not to exceed eight (8) hours each year. (b)(2)(C) No more than six hours or credit may be obtained through online courses. ( b ) ( 3 ) A l i s t o f a p p r ove d courses, including TBCE Required Courses, is available on the board's website, www.tbce.state.tx.us, as provided in ยง73.7(f) of this title. The board will also provide notice of a TBCE Course in its newsletter. (b)(4) A licensee who is unable to travel for the purpose of attending a continuing education course or seminar due to a mental or physical illness or disability may satisfy the board's continuing education requirements by completing 16 hours of approved continuing education courses online. Video courses will no longer qualify for credit. (b)(4)(A) If the licensee is unable to take an online course, the licensee must submit a request for special accommodations to complete their continuing education requirements.

(b)(4)(B) In order for an online course to be accepted by the board, a licensee must submit a letter from a licensed doctor of c h i r o p ra c t i c , m e d i c i n e , o r osteopathy who is not associated with the licensee in any manner. In the letter, the doctor must state the nature of the illness or disability and certify that the licensee was ill or disabled, and unable to t ra ve l f o r t h e p u r p o s e o f obtaining continuing education hours due to the illness or disability. (b)(4)(C) A licensee is required to submit a new certificate for each year an exemption is sought. An untrue certification submitted to the board shall subject the licensee to disciplinary action as authorized by the Chiropractic Act, Occupations Code ยง201.501 and ยง201.502. (b)(4)(D) The six hour limit provided in subsection (b)(2) of this section for online courses does not apply to a licensee who submits a certification under this subsection. (c) Verification. (c)(1) At the request of the Board, a licensee shall submit, to the board, written verification from each sponsor, of the licensee's attendance at and completion of each continuing education course which is used in the fulfillment of the required hours for all years requested. (c)(2) A licensee submitting hours as a National Boards examiner must submit written verification of the licensee's participation from the National Boards, on National Boards letterhead. The verification must include the licensee's name, board license number,

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and the date, time, and place of each examination attended by the licensee as an examiner. ( c ) ( 3 ) Fa i l u r e t o s u b m i t verification as required by paragraph (1) of this subsection shall be considered the same as failing to meet the continuing education requirements of subsection (b) of this section. (d) Qualifying exemption. The following persons are exempt from the requirements of subsection (b) of this section: (d)(1) a licensee who holds an inactive Texas license. However, if at any time during the reporting year for which such exemption applies such person desires to practice chiropractic, such person shall not be entitled to practice chiropractic in Texas until all required hours of continuing education credits are obtained and the executive director has been notified of completion of such continuing education requirements; (d)(2) a licensee who served in the regular armed forces of the United States during part of the 12 months immediately preceding the annual license renewal date; (d)(3) a licensee who submits proof satisfactory to the board that the licensee suffered a mental or physical illness or disability which prevented the licensee from complying with the requirements of this section during the 12 months immediately preceding the annual license renewal date; or (d)(4) a licensee who is first licensed within the 12 months immediately preceding the annual renewal date.

~~~ A new rule was also adopted www.chirotexas.org

"...to restrict use of prepaid contracts for multiple visits or treatments and to adopt inclusion of failing to comply with requirements of prepaid plans as a Category One violation in the Maximum Sanctions Table (Penalty Matrix)." RULE ยง80.13 Treatment Plans

Prepaid

(a) A licensee may accept prepayment for services planned but not yet delivered, but must provide the following: (a)(1) The plan must be cancellable by either party at any time for any reason without penalty of any kind to the patient. (a)(2) Upon cancellation of the plan the patient shall receive a complete refund of all fees paid on a pro rata basis of the number of treatments provided compared to total treatments contracted. (a)(3) The plan must provide for a limited, defined number of visits. (a)(4) The patient's file must contain the proposed treatment plan, including enumeration of a l l a s p e c t s o f e va l u a t i o n , management, and treatment planned to therapeutically benefit the patient relative to the condition determined to be present and necessitating treatment. (a)(4)(A) The patient's financial file must contain documents outlining any necessary procedures for refunding unused payment amounts in t h e e ve n t t h at e i t h e r t h e patient or the doctor discharge the other's services or therapeutic association.

(a)(4)(B) The treatment plan in such cases where prepayment is contracted must contain beginning and ending dates and a breakdown of the proposed treatment frequency. (a)(5) A contract for services and consent of treatment document must be maintained in the patient's file that specifies the condition for which the treatment plan is formulated. (a)(6) If nutritional products or other hard goods including braces, supports, or patient aids are to be used during the proposed treatment plan, the patient documents must state whether these items are included in the gross treatment costs or if they constitute a separate and distinct service or fee. (b) This rule does not create a ny e xe m p t i o n s f r o m a ny requirements applicable under the Texas Insurance Code.

~~~ The TBCE also amended Rule 71.3 "to remove sections that have become obsolete due to changes to admissions requirements to chiropractic colleges made by the Council on Chiropractic Education (the accrediting body for chiropractic schools)." RULE ยง71.3 Qualifications of Applicants (a) All applicants must comply with the application process and license requirements in the Chiropractic Act, Subchapter G of Chapter 201 of the Occupations Code. (b) The board may deny an application for a chiropractic license if it receives information

Texas Journal of Chiropractic

from an administering entity that the applicant has defaulted on a student loan or has breached a student loan repayment contract or scholarship contract by failing to perform his or her service obligation under the contract. The board may rescind a denial under this subsection upon receipt of information from an administering entity that the applicant whose application was denied is now in good standing. For the purposes of this subsection, "good standing" means that the applicant has: (b)(1) entered into an agreement with the administering entity to: (b)(1)(A) repay the student loan; (b)(1)(B) perform the service obligation; or (b)(1)(C) pay any damages required by the student loan repayment contract or scholarship contract; or ( b ) ( 2 ) t a ke n o t h e r a c t i o n resulting in the applicant no longer being in default on the loan or in breach of a repayment or scholarship contract. (c) For each student admitted a C h i r o p ra c t i c C o l l e g e m u s t 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

Texas Journal of Chiropractic

student admitted to begin the study of chiropractic on the basis of academic credentials from institutions within the United States must meet the following requirements: (c)(1) All applicants must furnish proof of having earned a minimum of 90 semester hour credits of courses at an institution or institutions accredited by a nationally recognized agency not including

courses included in a doctor of chiropractic degree program. (c)(2) All applicants must present proof of graduation from a bona fide Chiropractic College that is accredited by chiropractic educational accrediting body that is a member of the Councils on Chiropractic Education International.

~~~

Call for Keeler Award Nominations Established in 1934 by Dr. Clyde Keeler, The Texas Chiropractic Associationâ&#x20AC;&#x2122;s award designating the Chiropractor of the year, The Keeler Plaque, is Texas Chiropracticâ&#x20AC;&#x2122;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 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 candidateâ&#x20AC;&#x2122;s main endeavor must be in the practice of chiropractic and must have promoted chiropractic throughout their career. Civic, church or community involvement, individually or within organizations or groups, and holding offices in local, state or national chiropractic organizations, chiropractic boards, and chiropractic college boards may also be considered.

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A new rule was also adopted "...to update the schedule of sanctions.” RULE §75.11 Schedule of Sanctions (a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise: (a)(1) A PA - - A d m i n i s t r a t i v e Procedure Act, Government Code, Chapter 2001; (a)(2) Board--Texas Board of Chiropractic Examiners; (a)(3) Chiropractic Act or CA-Occupations Code, Chapter 201 (formerly Texas Civil Statutes, Article 4512b); (a)(4) HPCA--Health Professions Council Act, Occupations Code, Chapter 101; (a)(5) Code;

HRC--Human Resources

(c) In a case where a respondent has committed multiple violations or multiple occurrences of the same violation, board staff, the enforcement committee or an administrative law judge may recommend and the board may impose sanctions in excess of a maximum sanction specified in the maximum sanction table provided by subsection (b) of this section, if otherwise authorized by law. For the fourth and subsequent offenses of any violation listed in the maximum sanction table with three levels of sanctions, the maximum sanction is revocation and/or $1000 administrative penalty. (d) An administrative penalty may not exceed $1,000 per day for each violation. Each day a violation continues or occurs is a separate violation for the purposes of imposing an administrative penalty. (e) For violation of a statute which is not listed in the maximum sanction table and for which the board is authorized to take disciplinary action, the maximum sanction is revocation and/or $1000 administrative penalty.

(a)(6) Licensee--A person who is licensed by the board to practice chiropractic in the State of Texas;

RULES TO BE PUBLISHED FOR COMMENT

(a)(7) MRTCA--Medical Radiologic Technologist Certification Act, Occupations Code, Chapter 601;

At this same meeting in February, the TBCE voted to publish rules proposals for further comment and action.

(a)(8) Code;

Occ. Code--Occupations

(a)(9) Respondent--an individual or facility regulated by the board against whom a complaint has been filed; (a)(10) SOAH--State Office of Administrative Hearings; (a)(11) DSHS--Department of State Health Services. (b) The following table contains maximum sanctions that may be assessed for each category of violation listed in the table: See Table Next Page

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"...amendment to Rule 78.1 Registration of Chiropractic Radiologic Technologists (Rad Te c h s ) t o r e m o v e t h e requirement that a Rad Tech must show proof of continuing education upon renewal" to TBCE as the Department of State Health Services "tracks those CE hours and it is a duplication of effort for TBCE to do so." "...propose new Rule 77.5 Misleading Claims to the 7

advertising section of Board Rules to further clarify advertising requirements and prohibitions (e.g. , advertising out of scope, unsupported claims, etc.)” When the proposed rules are p u b l i s h e d i n t h e Te x a s Register they will also be p u b l i s h e d i n t h e Te x a s Journal of Chiropractic, Online.

POTENTIAL RULES TO BE CONSIDERED The TBCE voted to direct the staff to "draft rule proposals" to address the "following question(s) from staff". Presumably one or more of the three staff attorneys will undertake this endeavor. 1. May a licensed chiropractor advertise to treat, claim to treat, attempt to treat, or treat a patient for Type II Diabetes? 2. May a licensed chiropractor advertise to treat, claim to treat, attempt to treat, or treat a patient for thyroid problems (hypo or hyper thyroidism)? 3. Are "chiropractors allowed to practice homeopathy...?" "Is homeopathy within the scope of practice in your state or are chiropractors specifically excluded from practicing homeopathy?" 4. "... what can I say as far as treatment of ear infections?" 5. "Is 'dry needling' within scope of practice?" [preliminary Texas Journal of Chiropractic

CATEGORY II Violation.

MAXIMUM SANCTIONS TABLE

1st Offense: $500 2nd Offense: $750 and/or suspension 3rd Offense: $1000 and/or suspension

CLICK HERE for Complete Chart

Submitting an untrue continuing education certification Operating a facility without a certificate of registration or with an expired registration Practicing in a facility without a certificate of registration or with an expired registration Unauthorized disclosure of patient records Overtreating/overcharging a patient Deceptive advertising and other prohibited advertising

CATEGORY I Violation. 1st Offense: $1000 and/or revocation 2nd Offense: $1000 and/or revocation 3rd Offense: $1000 and/or revocation Practicing without a chiropractic license Practicing with an expired license (nonrenewal due to default student loan)

CATEGORY III Violation.

Practicing with an expired license (nonrenewal) Practicing while on inactive status

1st Offense: $250 2nd Offense: $500 and/or suspension 3rd Offense: $1000 and/or suspension

Practicing in non-compliance with continuing education requirements Improper control of patient care and treatment

Failure to furnish patient records Overcharging for copies of patient records Failure to disclose charges to patient Failure to submit to medical examination Failure to maintain patient records

Grossly unprofessional conduct Lack of diligence/gross inefficient practice Performing radiologic procedures without registering, with an expired registration, or without DSHS approval; failure to renew (including non-payment of fees) Performing: (1) radiologic procedures without supervision; or (2) cineradiography or other restricted procedure

CATEGORY IV Violation. 1st Offense: $250 2nd Offense: $500 3rd Offense: $1000

Permitting a non-registered or non-DSHS approved person to perform radiologic procedures or CRT to perform procedures without supervision

Failure to respond to board inquiries Failure to display public interest information Displaying an invalid license or renewal card Failure to complete CRT continuing education

Delegating to a non-licensee authority to perform adjustments or manipulations Failure to supervise a student Delegating authority to a licensee whose license has been suspended or revoked Failure to comply with the CA, other law or a board order or rule

CATEGORY V Violation. 1st Offense: $250 2nd Offense: $400 3rd Offense: $500

Failure to comply with down-time restrictions Medicaid fraud Solicitation

Failure to report change of address Failure to report change of facility address/ownership Failure to report locum tenens information Failure to report criminal conviction Use of the term "physician," "chiropractic physician" Failure to use "chiropractor," "D.C." in advertising

Default on Student Loan Failure to comply with requirements/restrictions on prepaid treatment plans Other statutory violations

Texas Journal of Chiropractic

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indications are that the board desires to address this under the acupuncture portion of their rules]. 6. "Is the use of laser to treat toe fungus within the scope of practice?" [preliminary indications are no]. 7. "Is it within scope of practice for a DC to conduct screening of arteries to determine the risk of stroke or a heart attack?" 8. "Is the performance of video fluoroscopy within scope and is having a radiology diplomate the only acceptable qualification for a DC who performs the procedure?" 9. "Is it within scope of practice for a DC to use an oxygen concentrator (not bottled oxygen) as part of the treatment of a patient?" 10. "Is it within scope of practice for a DC to perform an 'internal coccyx adjustment' or to perform a manual lymphatic drainage near a female's breast?" Future dates for TBCE Meetings are scheduled for: May 19, 2011 August 11, 2011 November 17, 2011 February 23, 2012 May 24, 2012 August 16, 2012 November 15, 2012

★★★★★★★★ www.chirotexas.org

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

NEW Lawsuit Filed TMA v TBCE (II) On January 31, 2011 the Texas Medical Association once again sought to make use of the court system to enforce its opinion upon others. The TMA filed a lawsuit in Travis County Court that challenges a rule of the Texas Board of Chiropractic Examiners. Says the TMA: "The rule authorizes certain licensed chiropractors to “In this lawsuit, TMA is seeking to protect the value of its members' right to practice medicine.” p e r f o r m ' Te c h n o l o g i c a l I n s t r u m e n t e d Ve s t i b u l a r Ocular-Nystagmus' testing. This suit seeks a declaration that the Vestibular-OcularNystagmus testing provision violates [law] because it 9

exceeds the lawful scope of the practice of chiropractic ...." The TMA further claims that "The rule also is void because it unlawfully authorizes chiropractors to practice medicine in violation of the Te x a s M e d i c a l P r a c t i c e Act ...." TMA states "In this lawsuit, TMA is seeking to protect the value of its members' right to practice medicine. The question of who has the right to practice medicine is directly related to the quality of the care provided."

Texas Journal of Chiropractic

TMA also alleges, as it did in its other lawsuit against the chiropractic profession, "the authority of a chiropractor to 'analyze, examine, or evaluate' and treat a patient is limited to the biomechanical condition of that patient's spine or the biomechanical condition of that patient's m u s c u l o s k e l e t a l s y s t e m . There is no definition of 'biomechanics' that includes the function of the brain, eyes and inner ear." [emphasis in the original] In their attempt to limit the scope of chiropractic practice the TMA states "a chiropractors analysis, examination, evaluation, and treatment of a person's biomechanical condition is limited to the spine and musculoskeletal system, neither of which includes the brain, eyes or inner ear." More statements of the medical professional association include: "..the eyes and ears are not part of the ... musculoskeletal system of the human body." "Vestibular-Ocular-Nystagmus testing has but one purpose: i t i s a d i a g n o s t i c t e s t . Chiropractors have no statutory authority to make diagnoses ...." [emphasis in original] "The legislature did not authorize chiropractors to diagnose medical conditions ...." A full copy of the lawsuit is posted HERE.

Texas Journal of Chiropractic

★★★★★★★★

TMA v TBCE; Who, What, When... The matter of TMA v TBCE has been appealed to the Third Court of Appeals and the TBCE's 30-plus page brief to that court may be found HERE in three parts. The brief includes a myriad of information and is used to create this summary article. The TCA's 60-plus page brief is also found at the above link and summarized in the article following. HISTORICAL SUMMARY Here is a history of what has thus far happened in the Texas Medical Association's endeavor to 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."

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." "In the fall of 2009," the brief continues, "the parties filed cross motions for summary judgment. On November 24, 2009, the trial court entered an order that granted TMA and TMB's motions as to 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 www.chirotexas.org

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 to offer illustration. T H E L E G I S L AT U R E 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 www.chirotexas.org

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 11

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 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 Texas Journal of Chiropractic

include a needle entry is subject to debate,' the court failed to then defer to TBCE's determination that the use of a needle would not be an incision .... the trial court instead substituted its own finding that use of a needle would constitute an incision in place of TBCE's finding and rule." The brief cites legal precedent for its conclusion. "As the Chiropractic Act does not include a definition for 'incision,' TBCE adopted a rule defining the term as '[a] cut or a surgical wound; also, a division of the soft parts made with a knife or hot laser' .... Further, TBCE adopted a policy describing when the use of needles was consistent with the scope of practice of chiropractic in Texas: Needles may be used in the practice of chiropractic under standards set forth by the Board but may not be used for procedures that are incisive or surgical. (A) The 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 Texas Journal of Chiropractic

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."

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."

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

"The trial court additionally relied on legislative history from 1995 as support for determining that needle EMG was not part of the scope of practice in Texas .... This reliance disregarded the subsequent ten year review of this issue, substantive changes made to the Chiropractic Act in 2005 as part of HB 972, and other statutory changes since 1995."

"The court acted arbitrarily in applying the common meaning of 'incisive' in place 12

"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 www.chirotexas.org

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 Representative 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.â&#x20AC;? 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 www.chirotexas.org

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." MANIPULATION WHILE ANESTHETIZED "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.â&#x20AC;? "The court and TBCE agree that MUA is listed in the 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 manipulation; and that 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 order to give effect to all of the provisions. TBCE's construction does that. The 13

court's construction relies on a double negative ...." "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 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 The conclusion argued is that ".... the trial court erred in construing the Chiropractic Act and TBCE's scope of practice rule, giving too much weight to legislative history and insufficient consideration to TBCE's construction of the Act and the definitions and policies adopted by rulemaking as directed by the Legislature."

Texas Journal of Chiropractic

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."

★★★★★★★★

TMA v TBCE (I): Why? This article utilizes the brief supplied to the Third Court of Appeals, and FOUND HERE, to investigate the reasons behind this lawsuit. WHY? The TCA's legal brief notes: "The practice of chiropractic in Texas is primarily governed by ... the Texas Occupations Code ('the Chiropractic Act'). ... The Texas Board of Chiropractic Examiners ('the B o a r d ' ) i s s p e c i fi c a l l y authorized to adopt rules clarifying the scope of practice. ... The Texas Medical Association ('TMA') filed this suit in 2006 against the Board .... [and] because constitutional issues were raised by the parties' pleadings, the State of Texas also intervened." MEDICINE HOLDS "MUA IS SURGERY"

Texas Journal of Chiropractic

There are many issues addressed in this brief. "The first provision at issue allows chiropractors to perform manipulation under anesthesia ('MUA'). ... This procedure is ... manipulation of the musculoskeletal system by a chiropractor while the patient is under general anesthesia. ... At the time this provision was adopted, chiropractors in Texas had been performing MUA for over twenty-five years and the Board had never received a complaint stemming from a chiropractor's use of the procedure." MEDICINE HOLDS "NEEDLE EMG IS INCISIVE" "Also at issue are a set of provisions that allow chiropractors to perform needle electromyography (needle EMG'). ... At the time the Board adopted these provisions, chiropractors in Texas had been performing this procedure for over twenty-five years and the Board was aware of no complaints or malpractice claims related to the procedure." MEDICINE HOLDS THAT "CHIROPRACTORS CAN NOT DIAGNOSE . . . ANYTHING!" "The remaining provisions at issue deal with the bodily conditions that chiropractors may diagnose. The first authorizes chiropractors to diagnose 'biomechanical condition[s] of the spine and 14

m u s c u l o s k e l e t a l system.' ...The second authorizes chiropractors to diagnose 'subluxation complex[es] of the spine or musculoskeletal system.'" " T M A a n d T M B [ Te x a s Medical Board] moved for partial summary judgment declaring that the Board exceeded its statutory authority [and] .... that the authorization to diagnose was improper. On November 23, 2009, the trial court granted TMA/TMB's motion for partial summary judgment as to both MUA and needle EMG, and granted TCA's and the Board's motion with respect to the use of diagnosis. ... But the victory for TCA and the Board on the latter issue was mixed, as the court 'reserve[d] judgment regarding 'diagnosis' as it relates to scope of practice.' (emphasis in original)." WHY THIS LAWSUIT AND APPEAL? "In July 2010, TMA/TMB sought partial summary judgment that the provisions authorizing chiropractors to diagnose biomechanical conditions and subluxation complexes are invalid because they (1) exceeded the statutory scope of practice and (2) violate the Texas Constitution by authorizing the practice of medicine without a medical license." "On September 7, 2010, the trial court granted TMA/TMB's motion for partial summary www.chirotexas.org

judgment .... This appeal followed." "The trial court erred by granting TMA/TMB's motions for summary judgment and striking down provisions of the Board's scope-of-practice rule. For each provision, the court either construed the Chiropractic Act too narrowly or the Board's rule too broadly." "The authority to perform MUA is clearly implied by the Chiropractic Act. A section of the Act prohibits the Board from creating a process to certify chiropractors to perform MUA. This section w o u l d b e s u p e r fl u o u s i f chiropractors were completely barred from performing the procedure .... while the Chiropractic Act excludes surgical procedures from the scope of practice, this provision does not control here ... the Act's definition of 'surgical procedure' does not encompass MUA by chiropractors; the section of t h e A c t t h a t s p e c i fi c a l l y addresses MUA controls ... ; and the Act's definition of 'surgical procedure' creates an unconstitutional delegation of legislative power to a federal agency and private entity." "Needle EMG is permitted by the Act's broad authorization to use 'objective or subjective means' to evaluate patients. The Act's exclusion of incisive procedures from the scope of practice does not bar the use of needle EMG, since the www.chirotexas.org

Board reasonably construed the term 'incisive procedure' to encompass needle entries only if the entry results in the removal of tissue .... The absence of an explicit legislative reference to needle EMG should properly be understood as a delegation to the Board to interpret the vague contours of the Act's scope of practice."

that the Legislature passed a useless law authorizing an impossible act."

"Similarly, the provision of the scope-of-practice rule authorizing diagnosis of biomechanical conditions is not contrary to the Chiropractic Act .... Properly construed, those items are examples of biomechanical conditions that may be diagnosed, not an expansion of the authority to diagnose beyond biomechanical conditions. To hold otherwise requires taking the examples out of context and interpreting the provision in a way that leads to absurd results."

MUA IS WITHIN THE STATUTORY SCOPE OF PRACTICE

" F i n a l l y, t h e p r o v i s i o n authorizing diagnosis of subluxation complexes is n e c e s s a r y t o e ff e c t u a t e legislative intent. The Chiropractic Act expressly authorizes chiropractors to treat subluxation complexes .... treatment necessarily requires diagnosis, and only chiropractors are trained to understand and identify subluxation complexes. For this reason, denying chiropractors the authority to diagnose subluxation complexes frustrates legislative intent and implies 15

"The trial court thus erred by ... invalidating these provisions. ...this Court should reverse the judgment below and hold that the Board's scope-of-practice rule is in all things consistent with the Chiropractic Act."

"The Chiropractic Act authorizes chiropractors to 'perform nonsurgical, nonincisive procedures, including . . . manipulation,' to treat the musculoskeletal system. ...Pursuant to these provisions, the Board authorized chiropractors to perform MUA. ...The trial court struck down this provision .... the trial court reasoned that MUA was a 'surgical procedure' and thus outside the statutory scope of practice. The court's ruling was wrong." "The only specific reference to MUA in the Chiropractic Act proves that MUA is within the statutory scope of practice. Chiropractors cannot perform certain procedures unless they obtain additional training and receive ' c e r t i fi c a t i o n . ' . . . B u t t h e Chiropractic Act specifically prohibits the Board from 'adopt[ing] a process to certify chiropractors to perform manipulation under anesthesia.' This prohibition Texas Journal of Chiropractic

would be superfluous under the trial court's ruling, because a total ban on chiropractors performing MUA necessarily implies a ban on certifying chiropractors to perform MUA. And interpretations that create surplusage or fail to give effect to some part of a statute should be rejected." Neither does legislative history prove otherwise. "The first version of the prohibition on certification was proposed by Rep. Uher as a bill amendment and was in fact not a prohibition at all. It stated that the Board 'shall adopt a process to certify chiropractors to perform manipulation under a n e s t h e s i a . ' . . . T h e fi r s t version also expressly provided for the adoption of rules to govern the practice of MUA by chiropractors. ...this amendment was itself amended to state that the Board 'shall not adopt' a process to certify the practice of MUA .... The text of the amendment clearly contemplates that chiropractors in Texas will perform MUA."

spine requiring anesthesia,' the surgery section crossreferences code 97140 '[f]or spinal manipulation without anesthesia....'" "If the reference to manipulation requiring anesthesia was intended to encompass chiropractic procedures, one would expect code 97140 to encompass chiropractic procedures as well, since the two are stated to be counterparts of one another. ...But 'chiropractic manipulative treatment' is covered by codes 98940-98943, not code 97140. ...Thus, a chiropractor who bills for manipulation without anesthesia will use t h e c h i r o p r a c t o r - s p e c i fi c codes. And it follows, based on the CPT's cross-reference, that a chiropractor will use the same codes if anesthesia is used. ...MUA by a chiropractor is therefore not listed in the surgery section of the CPT."

The brief notes that ".... there are three reasons why these isolated facts fail to establish that MUA is a prohibited surgical procedure. First, the surgery section's reference to manipulation requiring anesthesia does not encompass chiropractic procedures. Although the surgery section of the CPT includes '[m]anipulation of

"Even if it were, the Chiropractic Act's prohibition on certification specifically addresses MUA, whereas the Act's general definition of 'surgical procedure' addresses an enormous number of procedures. Barring unusual circumstances, a specific provision prevails over a c o n fl i c t i n g g e n e r a l provision .... the clearest evidence of the Legislature's intent is the specific provision. In fact, the general provision deserves even less weight here, since the federal agency delegated the coding decision to the American Medical

Texas Journal of Chiropractic

Association--a group of rival health care providers--and the CPT itself warns that its coding classifications should not be used to 'restrict [a procedure's] use to a specific specialty group.'" "Finally ... section 201.002(a) (4) of the Chiropractic Act, which delegates the power to define 'surgical procedure' to CMS is unconstitutional. First, it creates a standardless delegation to a federal agency. ...Second, the AMA--a private entity--is solely responsible for drafting and revising the CPT codes, and it does so without any public input or legislative oversight. Delegations to private entities raise serious constitutional issues and are subject to more stringent requirements and less judicial deference than delegations to public entities. ...The private delegation in this case is particularly egregious, since it puts control over chiropractor's scope of practice in the hands of potential competitors. ...Once section 201.002(a)(4)'s delegation is swept aside, there is no rational reason to think that MUA qualifies as a 'surgical procedure.'" "In sum, the Legislature has not prohibited chiropractors from performing MUA and the Board's rule is not invalid. ... the Court should defer to the Board's reasonable interpretation of a complex statutory scheme or strike down the Legislature's www.chirotexas.org

delegation unconstitutional."

NEEDLE EMG IS WITHIN THE STATUTORY SCOPE OF PRACTICE "Chiropractors are authorized by statute to 'use ... objective or subjective means to analyze, examine, or evaluate' the biomechanical condition of the musculoskeletal system. ...But 'incisive or surgical procedures' are specifically excluded. ...These excluded procedures include 'making an incision into any tissue, cavity, or organ,' although 'use of a needle for the purpose of drawing blood' is explicitly excepted from the exclusion." "Interpreting these provisions, the Board adopted several provisions that permit needle EMG by chiropractors. ... The Board also removed a potential roadblock to needle EMG by categorizing use of a needle as 'incisive' ... only if 'the procedure results in the removal of tissue other than for the purpose of drawing blood.'" "The trial court invalidated the Board's provisions .... the court reasoned that unless 'incision' is read to encompass needle entries, the provision allowing use of a needle to draw blood would be surplusage .... And the court rejected the Board's rule that only needle entries resulting in removal of tissue qualify as 'incisive.' Hence the needle entries made during needle www.chirotexas.org

EMG are 'incisive' and outside the statutory scope of practice. ... there is no reason to think that all needle entries must count as 'incisive.' Indeed, the Legislature itself has defined acupuncture in part as the 'nonsurgical, nonincisive insertion of an acupuncture needle.' ... The Board's rule avoids either extreme -- needle entries that do not result in removal of tissue can be performed by chiropractors, whereas needle entries that do result in removal of tissue are incisive and beyond the scope of practice. This interpretation of the term 'incisive' avoids any surplusage problem identified by the trial court, since using a needle to draw blood results in removal of tissue and would be excluded from the scope of practice without an express provision to the contrary." "The Trial court agreed with the Board that the 'ordinary meaning' of 'incision' is 'a surgical cut or wound' .... the trial court acknowledged, '[w]hether the ordinary meaning would include a needle entry is subject to debate .... The Board was thus faced with a conceptually d i f fi c u l t q u e s t i o n o f interpretation: when does a needle entry qualify as a 'cut' or 'wound' (and hence become 'incisive')? The Board's answer--when the needle entry removes tissue-has a sound rational basis, since the removal of tissue is likely to create the ... separation of tissue that is the hallmark of a 'cut' or 'wound.' 17

Because the Board's interpretation is reasonable and lies squarely within the Board's expertise, courts should defer to the Board's interpretation." Again, legislative history does not contradict this. "In an early draft of the statute, needle EMG was listed as an exception to the definition of 'incisive procedure' along with drawing blood. ... An amendment during the floor debate removed the reference to needle EMG, leaving use of a needle for drawing blood as the only remaining exception .... If the Legislature intended to exclude needle EMG from the statutory scope of practice, as TMA/TMB argued ... it could have done so explicitly, rather than remain silent on the issue. ... The more likely explanation is that the Legislature's silence was an implied delegation to the Board. Elsewhere in the Chiropractic Act, the Legislature has specifically authorized the Board to adopt rules clarifying the scope of practice. ... In any event, absent clearer direction from the Legislature, the Board's interpretation is reasonable and entitled to judicial deference." The TMA and TMB would have us believe that "because the Chiropractic Act excepts using needles to draw blood from the definition of 'incisive procedure,' all other uses of a needle by a chiropractor are impliedly included in that definition. ... But this sweeps Texas Journal of Chiropractic

too broadly .... [this] argument assumes that all uses of a needle are 'incisive' and require an explicit exception in order to be performed by chiropractors. ... however, the term 'incisive' can be reasonably construed to apply to needle entries only if tissue is removed. Under this interpretation, no explicit exception is necessary because needle EMG never came within the term 'incisive' in the first place. ... an explicit exception for needle entries to draw blood only negates additional exceptions for needle entries of the same type--namely, those that remove tissue." "In short, the Board was expressly charged by the Legislature with using its expertise to interpret the vague scope-of-practice language in the Chiropractic Act, and the Board executed that charge in a wholly reasonable way." DIAGNOSING BIOMECHANICAL CONDITIONS IS NOT CONTRARY TO THE CHIROPRACTIC ACT "It is undisputed that chiropractors have the statutory authority to diagnose some conditions. This a u t h o r i t y fl o w s f r o m a provision of the Chiropractic Act that allows chiropractors to 'analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system.' ... The trial court ruled that the Texas Journal of Chiropractic

Board's use of the word d i a g n o s i s w a s p r o p e r, reasoning in a decision letter that the 'ordinary meaning' of the word diagnosis is 'not different substantively from evaluation or analysis.' [TMA/ TMB] have not appealed the court's ruling, so it stands. ... The issues on appeal are the extent of diagnosis permitted by the Chiropractic Act and whether the Board's scope-ofpractice rule exceeded that scope."

necessarily imply diagnosis of disease .... And even if diagnosis did imply diagnosis of disease, there is no reason to think that chiropractors are statutorily barred from diagnosing diseases per se, so long as the diseases also qualify as 'biomechanical conditions of the spine or musculoskeletal system.' Plenty of diseases meet this criterion, such as tendonitis, herniated disc, or rotator cuff tear."

"The trial court held that subsection (A) of Rule 75.17 (d)(1) crossed the line. That subsection allows chiropractors to diagnose 'the biomechanical condition of the spine or musculoskeletal system including, but not limited to' several examples,such as 'the existence of structural p a t h o l o g y, f u n c t i o n a l pathology or other abnormality of the system.'"

TMA/TMB "objected below to the inclusion of 'nerves' in this definition. But appellees' own definition encompasses 'all of the muscles, bones, joints, and related structures, such as tendons and connective tissue, that function in the movement of the body parts and organs. Nerves are clearly one such 'related structure' that function in movement. As noted above, construction of a statute by the agency charged with its enforcement is entitled to deference by the courts if it is reasonable and consistent with the statutory language, especially when the statute involves complex subject matter within the agency's expertise. The Board's definition of 'musculoskeletal system' plainly meets this standard for deference."

"TMA/TMB ... argued that the examples effectively authorize unlimited diagnosis of diseases ... rest[ing] their argument on ... the language ... 'include[e], but [are] not limited to' .... None of these concerns has merit." "The opening phrase of subsection (A)--permitting 'diagnosis' . . . regarding the biomechanical condition of the spine or musculoskeletal system' .... tracks the Chiropractic Act itself. ... Both [TMA/TMB's] and the trial court's definitions prove that diagnosis does not 18

"TMA/TMB argued ... that the items listed under subsection (A) gave chiropractors excessive authority to diagnose. On its face, this is a strange conclusion, since the items in the list are specifically www.chirotexas.org

stated to be examples of 'biomechanical condition[s] of the spine and musculoskeletal system. And it is undisputed that chiropractors may diagnose biomechanical conditions of the spine and musculoskeletal system, as the Chiropractic Act s p e c i fi c a l l y m e n t i o n s them. ...TMA/TMB reached the opposite conclusion by viewing the examples in isolation. The argued ... that the examples permit 'diagnosis of any abnormality--not just abnormal biomechanical conditions." "Here, subsection (A)'s seemingly broad references to 'pathology' and 'abnormality' of the musculoskeletal system must be interpreted in light of the fact that the provision characterizes them as examples of biomechanical conditions. According to the plain language of the rule itself, these references are not free-standing authorizations to diagnose any pathology or abnormality of the musculoskeletal system. Thus, a proper interpretation of the examples under subsection (A) would read as follows: chiropractors may diagnose a 'structural p a t h o l o g y, f u n c t i o n a l pathology or other abnormality of the biomechanical condition of the system.'" The trial court's interpretation "leads to absurd results. To accept it, one must believe t h a t t h e B o a r d fl a t l y www.chirotexas.org

contradicted itself in a single subsection: at the same time the Board was purporting to give specific examples of a general concept, it actually intended to smuggle far more expansive authorizations into the rule. ... In fact, the interpretation defended by TMA/TMB borders on an insinuation of dishonesty by the Board. By simply looking to context and imputing reasonable motives to the Board, the meaning of subsection (A) becomes clear--only biomechanical conditions of the musculoskeletal system may be diagnosed. And that meaning is plainly consistent with the limits set by the Chiropractic Act." ".... the trial court believed that subsection (A) was overly broad in part because the list of examples was prefaced by the phrase 'including, but not limited to.' The trial court apparently thought that this phrase somehow threw the door open to inappropriate diagnoses. But its effect is far more innocuous. It merely indicates that what follows is a 'nonexclusive list of illustrative examples.'" "In sum, neither subsection (A)'s opening phrase, its examples, or the transitional language in between causes the provision to slip beyond the boundaries set by the Chiropractic Act. The provision should be upheld."

ALLOWING CHIROPRACTORS TO DIAGNOSE SUBLUXATION COMPLEXES IS NOT CONTRARY TO THE CHIROPRACTIC ACT. "The Chiropractic Act authorizes chiropractors to perform certain procedures 'to improve the subluxation complex . . . of the musculoskeletal system.' The Act also authorizes chiropractors to diagnose certain conditions, although the text does not expressly mention subluxation complexes. Interpreting these provisions, the Board authorized chiropractors to render a 'diagnosis . . . regarding a subluxation complex of the spine or musculoskeletal system.' The Board defined a subluxation complex as 'a neuromusculoskeletal condition that involves two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in the biomechanical and/or neurophysiological reflections of these articular structures, their proximal structures, and/ or other body systems that may be directly or indirectly affected by them.'" "The trial court struck down the provision permitting diagnosis of subluxation complexes. ... TMA/TMB argued that this provision is invalid because it 'fails to restrict diagnosis to the biomechanical condition of the spine and musculoskeletal Texas Journal of Chiropractic

system.' They worried that the B o a r d ' s d e fi n i t i o n o f 'subluxation complex' throws the door wide open, authorizing diagnosis of 'not only neurological conditions, and pathological consequences that effect [sic] the spine and musculoskeletal system, but also any condition that might affect undefined and unlimited other body systems.'" The Board however was correct to authorize the diagnosis of subluxation complexes, for the "Legislature's authorization to treat subluxation complexes necessarily implies an authorization to diagnose them. There are two reasons for this conclusion. First, the concept of a subluxation complex is unique to chiropractic. The term 'subluxation complex' is used exclusively by chiropractors, as attested by medical dictionaries. ... Indeed, TMA/ TMB admitted in their motion for summary judgment that two of the three medical dictionaries they relied on contain no entry for 'subluxation complex.' And although the medical profession sometimes uses the term 'subluxation', chiropractors and physicians ascribed two different meanings to the term. ... Thus, only chiropractors are q u a l i fi e d t o d i a g n o s e subluxation complexes." "Second, the trial court's interpretation completely frustrates legislative intent. Texas Journal of Chiropractic

The Chiropractic Act gives chiropractors a clear mandate to treat subluxation complexes. ... But because the concept of a subluxation complex is unique to chiropractic, only chiropractors are trained to understand and identify the condition. Thus, the Chiropractic Act creates a need that only chiropractors can meet. To hold that the Legislature did not impliedly authorize diagnosis by chiropractors is to accuse the Legislature of demanding the impossible--treatment without diagnosis. ... the Legislature clearly intended for chiropractors to treat subluxation complexes. To effectuate that intent, chiropractors must have the authority to diagnose subluxation complexes. An explicit authorization to diagnose is unnecessary." "As a practical matter, TMA/ TMB's concern about the breadth of these provisions is overblown. On the face of the rule, the scope of diagnosis is c o n fi n e d to the 'neuromusculoskeletal condition' of 'adjacent articular structures.' Although the definition of 'subluxation complex' goes on to note that a diagnosable condition may 'caus[e] an alteration in the biomechanical and/or neurophysiological reflections' of 'other body systems,' this is a description of the effects (or symptoms) of a subluxation complex, not an expansion of the conditions that chiropractors may diagnose. 20

For example, pain is the most common symptom from which chiropractic patients seek relief. But pain is just a 'neurophysiological reflection' of a 'body system' that may be caused by the 'neuromusculoskeletal condition' of 'adjacent articular structures,' such as spinal vertebrae. In short, upholding these provisions will not open the door to unlimited diagnosis by chiropractors." "Our Constitution states that 'no preference shall ever by given by law to any schools of medicine." --TMA/TMB It seems to this editor that our medical cousins DO recognize chiropractic as a "school of medicine."

BOARD RULES DO NOT UNCONSTITUTIONALLY FAVOR "ONE SCHOOL OF MEDICINE OVER ANOTHER" The TMA/TMB argued that the Board's scope-of-practice rule v i o l a t e s t h e Te x a s Constitution. "Our Constitution states that 'no preference shall ever by given by law to any schools of medicine." It would seem to this editor, then, that our medical cousins DO recognize chiropractic as a "school of medicine." They believe "the rule authorizes chiropractors to practice medicine without a medical license, thereby giving them www.chirotexas.org

an unconstitutional 'preference' over [medical] physicians." "This argument rests on a false premise. As Texas courts have consistently held, only fields that diagnose and treat conditions of the entire body must be treated equally. ... Chiropractors may only diagnose and treat certain conditions of the 'musculoskeletal system.' While perhaps not as spatially limited as dentistry or podiatry, this scope of practice still falls far short of encompassing the entire body. Chiropractors are not authorized to diagnose or treat [diseases or] conditions afflicting the vast majority of the body's organ systems, including the cardiovascular, r e s p i r a t o r y, d i g e s t i v e , reproductive, and endocrine systems." CONCLUSION "Fundamentally, the trial court erred by construing the Chiropractic Act too narrowly and the Board's scope-ofpractice rule too broadly. Properly construed, the Chiropractic Act allows chiropractors to perform MUA and needle EMG and to diagnose subluxation complexes. And the provision of the scope-of-practice rule governing diagnosis of biomechanical conditions is consistent both internally and with the Chiropractic Act. For these reasons, the portions of the trial court's judgment striking down parts of the www.chirotexas.org

Board's scope-of-practice rule should be reversed and judgment should be rendered for the Board and TCA."

★★★★★★★★

Governor Seeks Agency Consolidations The Austin American Statesman REPORTS HERE that "Gov. Rick Perry will ask the Legislature … to indefinitely suspend funding for four Texas agencies and consolidate the functions of dozens more as part of a sweeping budget plan that would make deep spending reductions across state government." Perry would also create a new Health Professions Agency, and fold into it a variety of agencies that oversee health professionals — including the Texas Medical Board, t h e Te x a s B o a r d o f Chiropractic Examiners, the Texas Board of Nursing and the Board of Dental Examiners.

"Two smaller agencies, the Board of Professional Geoscientists and the Board of Professional Land Surveying — which oversee licensing requirements for people in those professions — would also disappear under a 21

list of "suspensions/ consolidations" that will accompany the governor's budget proposal to the Legislature …." "Taken together, the proposals to zero out funding for some agencies while consolidating others would save the state about $50 million." "Besides the four agencies that would go away, Perry would target at least 21 agencies for consolidation and put their responsibilities into 11. He would put the Texas Facilities Commission, which oversees government buildings, into the General Land Office, for example." "Perry would also create a new Health Professions Agency, and fold into it a variety of agencies that oversee health professionals — including the Texas Medical Board, the Texas Board of Chiropractic Examiners, the Texas Board of Nursing and the Board of Dental Examiners."

★★★★★★★★

Appeals Court Reverses Decision on Vertebral Artery Dissection A newly reported legal decision reports on an appeal "from a judgment entered ... for personal injuries ... allegedly caused by Texas Journal of Chiropractic

chiropractic manipulation.” The court states “... We need only address that which involves whether he had a duty to inform ... of the chance of suffering a dissected vertebral artery from a cervical spine manipulation. We r e v e r s e a n d r e n d e r judgment.'" The court stated "Simply put, the injury suffered ... was not an inherent risk of which [the doctor] had a duty to disclose at the time. ... we sustain [the doctor's] contention that he had no duty to inform ... of the potential for arterial dissection before administering the spinal manipulation, reverse the trial court's judgment, and render judgment denying ... recovery ...." "'[c]urrent medical literature indicates that it is highly unlikely, if not impossible, for a cervical spine manipulation to injure a healthy vertebral artery.' He also stated that for the manipulation to have caused the dissection suffered ... one of two other circumstances would have had to exist or occur. First, [the] vertebral artery would have to have been unhealthy or, second, the manipulation would have to have been applied improperly. From this, we see that the potential for a dissection of the vertebral artery arose only when some other factor or condition was present. If neither of those additional indicia was present, the manipulation would not have resulted in an arterial dissection. So, the potential Texas Journal of Chiropractic

for the latter to occur did not exist in the procedure itself; nor was it inseparable from the procedure." “Simply put, the injury suffered by [the patient] was not an inherent risk of which [the doctor] had a duty to disclose at the time. To the extent that the jury found otherwise, it erred as a matter of law." "...we sustain [the doctor's] contention that he had no duty to inform ... of the potential for arterial dissection before administering the spinal manipulation...." The full legal opinion may be FOUND HERE.

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Appeal Your Denied Insurance Claims The American Chiropractic Association (ACA) encourages providers and their patients to appeal denied health insurance claims. While this seems like a fruitless task, there is some encouraging news. The Ohio Department of Insurance recently reported that patients and providers in Ohio recovered more than $900,000 as a result of claim appeals in 2009. Much of this is due to the Ohio Patient Protection Act, which gives Ohio citizens the opportunity 22

to request an independent external review for denial, reduction or termination of certain healthcare services by their health insurers. Insurers may then be required to provide for an external review by an accredited independent review organization or allow the consumer to request a review by the Ohio Department of Insurance. It is interesting to note, that the greatest number of reviews were for surgery, oncology, psychiatry, and chiropractic. State Insurance Departments provide consumers and health care providers with an easy method to file complaints, which are usually reviewed in a prompt manner.

★★★★★★★★

TCA at the Capitol T h e Te x a s C h i r o p r a c t i c Association hosted a TCA Day at the Capitol on Tuesday, January 25, 2011. Doctors from around Texas, and bus loads of students from Parker College of Chiropractic and the Texas Chiropractic College converged on the Capitol of Texas today to share the chiropractic professionʼs m e s s a g e w i t h Te x a s Legislators.

www.chirotexas.org

Several hundred attended the TCA lunch reception and heard the legislative message and strategies of the chiropractic profession. Many hundreds more legislative members and their staff attended the legislative dinner and reception later that evening. Some of the key points that chiropractors shared with their legislators included pointing out that Texans should have the right to choose their own health care provider, and that Chiropractic care is both safe and results oriented health care.

Chiropractic care may not be for everyone, but millions of Texans prefer a health care profession that does not rely excessively upon drugs or s u r g e r y. T h e Te x a s Chiropractic Association has always believed, and fought for, the right of Texans to have the ability to choose their own health care provider. It was this message that many of the c h i r o p r a c t o r s i n Te x a s converged upon the Texas legislature to share with their elected representatives.

separated out from the rest of the law.

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"Other states that have joined the lawsuit are: Alabama, Alaska, Arizona, Colorado, Georgia, Indiana, Idaho, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South D a k o t a , Te x a s , U t a h , Washington, Wisconsin and Wyoming. The National Federation of Independent Business is also part of the lawsuit.

“Overturn of Health Care Reform” Appealed

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Being the third largest primary health care profession nationally, recent research has indicated and reported the safety, the positive results, and the cost effectiveness of chiropractic care. Recently the medical profession has taken aim at the chiropractic profession in hopes of denying chiropractic doctors the right to diagnose, and to perform medical testing that they deem is within their scope of practice. The medical profession has made it clear that they desire, and intend to achieve, being named the exclusive gatekeeper for the health care decisions of Texans and of Americans. www.chirotexas.org

Health care reform legislation, assailed as an abuse of federal power in a 26-state lawsuit, was ruled unconstitutional by U.S. District Judge Roger Vinson in Pensacola, Florida. Vinson ruled the entire law "void" because the individual mandate provision can't be 23

Vinsonʼs ruling will be appealed to the U.S. Court of Appeals in Atlanta. A federal appeals court in Richmond, Virginia, is already slated in May to hear challenges to two c o n fl i c t i n g f e d e r a l c o u r t rulings in that state, one of which upheld the legislation while the other invalidated part of it. The U.S. Supreme Court may ultimately be asked to consider the issue.

A Summary of Legal Challenges to Health Reform As most know a key component of Health care Reform--the Affordable Care Act (ACA)--is the provision that becomes effective in 2014 requiring most individuals to purchase health insurance or pay a penalty. The Act also significantly Texas Journal of Chiropractic

expands health insurance coverage to the uninsured through the Medicaid program. Since passage of the Act, numerous lawsuits have been filed and are winding their way to the Supreme Court of the United States. "Section 1501 of Title I of the ACA requires that most individuals maintain minimum essential health insurance coverage for themselves and their dependents. Those who fail to do so will be required to pay a penalty, administered through the tax code for each month of noncompliance," the American Medical Association reports. "Qualified individuals will be provided subsidies to help pay for their premiums and costsharing,” the AMA reports. “Others will be exempt from the individual mandate, including those with qualifying religious exemptions, those in a health care sharing ministry, individuals not lawfully present in the United States and incarcerated individuals. No penalty will be imposed on those without health insurance coverage for less than 90 days, members of Indian tribes, individuals whose household income does not exceed 100 percent of the federal poverty level (FPL), or any individual who is determined by the secretary of Health and Human Services to have suffered a hardship with respect to being able to obtain health Texas Journal of Chiropractic

insurance coverage under a qualified health plan." The American Medical Association states "The individual mandate is generally consistent with AMA policy, which states that individuals and families earning greater than 500 percent of FPL should be required to obtain health insurance coverage for at least catastrophic health care and evidence-based preventive health care." [emphasis added] "AMA policy also supports using the tax structure to achieve compliance," they state. "Beginning in 2014 or earlier if the state chooses, nonelderly, nonpregnant individuals with income below 133 percent of FPL will be newly eligible for Medicaid. The Act also adds new mandatory benefits that states must cover. From 2014 to 2016, the federal government will cover 100 percent of the Medicaid costs of these newly eligible individuals, with the percentage dropping to 90 percent and the states covering the difference by 2020. AMA policy supports maintaining Medicaid as a safety net program and covering all individuals with incomes below the poverty level," the AMA states. Several law suits have been brought in the process of health care reform. The AMA summarizes the major cases in this way: 24

Commonwealth of Virginia v. Sebelius (U.S. District Court, Eastern District of Virginia) "On Dec. 13, 2010, in the first ruling against the constitutionality of the individual health insurance mandate, Judge Henry Hudson held that the ACA's mandate that all individuals must purchase health insurance or pay a penalty is unconstitutional.” “This ruling, however, is limited to Section 1501 of the ACA (the minimum essential coverage provision). And because the ACA does not include a severability provision (i.e., maintaining the rest of the statute when one provision is determined to be unconstitutional), he exercised his judicial discretion to sever Section 1501 from other provisions of the law. Judge Hudson also declined to issue an injunction blocking the entire law, noting that the mandate does not take effect until 2014, and that his ruling would most likely not be the final word on this issue.” “ F u r t h e r, J u d g e H u d s o n rejected the government's claims that the ACA was valid under the Constitution's ʻnecessary and properʼ clause, and that the penalty for failing to obtain health insurance is a tax that could be upheld under the ʻgeneral welfareʼ clause. This case most likely will be appealed to www.chirotexas.org

the U.S. Court of Appeals for the Fourth Circuit." State of Florida v. U.S. Department of Health and Human Services (U.S. District Court, Northern District of Florida) "This lawsuit was brought by 13 states (there are now 20 participating states and the National Federation of Independent Business) challenging the constitutionality of the individual health insurance mandate and the expansion of Medicaid. See the previous article Federal Judge Overturns Health Care Reform. Thomas More Law Center v. Obama (U.S. District Court, Eastern District of Michigan) "On Oct. 7, 2010, Federal District Court Judge George Steeh dismissed this case, and found the individual mandate constitutional under the commerce clause. This case has been appealed to the U.S. Court of Appeals for the Sixth Circuit." Liberty University, Inc. v. Geithner (U.S. District Court, Western District of Virginia) "On Nov. 30, 2010, Federal District Court Judge Norman Moon ruled that the requirement that most Americans obtain health insurance coverage falls within Congress' authority to www.chirotexas.org

regulate interstate commerce. This case has been appealed to the U.S. Court of Appeals for the Fourth Circuit." "After the Courts of Appeals issue their rulings, it is widely expected that the constitutional challenges to the ACA ultimately will be determined by the U.S. Supreme Court, most likely this year or in 2012," the AMA reports.

★★★★★★★★ H.R. 329 would require the VA to have a chiropractic physician on staff at all major VA medical facilities by 2014. It would also amend the current statute, the D e p a r t m e n t o f Ve t e r a n s Affairs Health Care Programs Enhancement Act of 2001, ensuring that chiropractic benefits are included in the U.S. Code of Federal Regulations and therefore, cannot be denied.

Congress Proposes to Expand Chiropractic to Veterans and their Beneficiaries Newly introduced legislation in the U.S. House of Representatives is intended to expand the availability of the services delivered by 25

chiropractic physicians in the federal Department of Veterans Affairs (VA) and to those who utilize the militaryʼs health care delivery system, TRICARE, run by the Department of Defense (DoD). Ranking member of the H o u s e Ve t e r a n s A f f a i r s Committee, Rep. Bob Filner (D-Calif.), has again introduced the Chiropractic Care to All Veterans Act (H.R. 329), a bill similar to legislation that was overwhelmingly passed by the entire House in 2010 but was not considered in the Senate. H.R. 329 would require the VA to have a chiropractic physician on staff at all major VA medical facilities by 2014. It would also amend the current statute, the D e p a r t m e n t o f Ve t e r a n s Affairs Health Care Programs Enhancement Act of 2001, ensuring that chiropractic benefits are included in the U.S. Code of Federal Regulations and therefore, cannot be denied. “Our nationʼs veterans and active-duty military, along with their family members, have sacrificed so much for our country. They deserve the best health care available, and that includes chiropractic care,” said ACA President Rick McMichael, DC. “It makes me proud to see the chiropractic profession working with our congressional allies in support of this important legislation.” Texas Journal of Chiropractic

Through previous congressional action, chiropractic care is now available at 36 VA facilities across the country; however, in the more than 100 major VA medical facilities without a chiropractic physician on staff, the chiropractic care benefit Congress authorized for Americaʼs veterans remains virtually nonexistent. Detroit, Denver, and Chicago are a few of the major metropolitan areas still without a chiropractic physician at the local VA medical facility. A 2010 report from the Veterans Health Administration indicates that over half of all veterans returning from the Middle East and Southwest Asia who have sought VA health care were treated for symptoms associated with musculoskeletal ailments – the top complaint of those tracked for the report. In addition, Rep. Mike Rogers (R-Ala.) has re-introduced another piece of legislation in the House that would extend chiropractic care to U.S. military retirees, dependents and survivors as part of the TRICARE program. H.R. 409, the Chiropractic Health Parity for Military Beneficiaries Act, would require the Secretary of Defense to develop a plan to allow any beneficiary covered under TRICARE to select and have direct access to a chiropractic physician. The plan deadline is Aug. 31, 2011. Currently, only active Texas Journal of Chiropractic

duty members are afforded the chiropractic benefit. H.R. 409 defines “chiropractic services” as diagnosis (including X-ray and tests), evaluation and management, and therapeutic services for the treatment of neuromusculoskeletal health conditions. The legislation s p e c i fi c a l l y n o t e s t h a t chiropractic services may only be provided by a chiropractic physician. Rep. Rogers introduced nearly identical legislation in the past two sessions of Congress. Chiropractic doctors are urged to contact their congressional representatives and request that they cosponsor both of these bills.

★★★★★★★★

ERISA Class Action Against UnitedHealth Group On Feb. 8, 2011, the Board of the Congress Of Chiropractic State Associations (“COCSA”) voted to join a national ERISA Class Action against UnitedHealth Group to challenge overpayment recoupment abuses. The action was originally filed o n J a n . 2 4 , 2 0 11 b y Pomerantz Haudek Grossman & Gross LLP on behalf of a group of chiropractors, and the Ohio State Chiropractic 26

Association (OSCA). Pomerantz seeks to represent a nationwide class of all health care providers who have been subjected to improper demands by UnitedHealth Group to repay previously paid health care benefits for services provided to UnitedHealth Group subscribers, only to have such funds forcibly recouped by the withholding of future payments from unrelated claims in alleged violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), the Federal law governing private employee benefit plans. The latest Class Action against UnitedHealth Group is the third national class action filed by Pomerantz, following similar litigations brought against Aetna and 23 Blue Cross Blue Shield entities filed within the last two years. Initial court rulings have been favorable to provider plaintiffs. UnitedHealth Group is the nation's largest private health plan by revenue. The action alleges that the post-payment audit and review process as applied by the Defendants violates ERISA in that its repayment demands are retroactive adverse benefit determinations that particular services are not covered under the terms of the United and Health Net health care plans, but without proper appeals or other protections otherwise available under ERISA for both self-funded and fully insured health care www.chirotexas.org

plans offered through private employers. “ERISA establishes the procedures that insurance companies must follow when making benefit determinations – whether prior to payment or retroactively,” said Plaintiffs' counsel, D. Brian Hufford of Pomerantz. “The Defendants here, as is true for many insurance companies, are violating their ERISA obligations in order to recover funds that simply do not belong to them." A copy of the official Class Action Complaint against UnitedHealth Group can be found at http:// w w w. e r i s a c l a i m . c o m / UHC_Complaint.pdf On Jan. 24, 2011, a Federal district court in Chicago dismissed BCBSʼs state law counterclaims against one of the plaintiff chiropractors in the largest ERISA class action brought against 23 BCBS entities filed in 2009, after the court upheld the ERISA claims on May 17, 2010, in denying Defendantsʼ motion to dismiss. On October 27, 2010, a Federal district court ruled against BCBS of Rhode Island which was seeking to pursue state law claims for more than $400,000 against a chiropractic physician and an occupational therapist, finding that ERISA “completely preempts,” supersedes and limits BCBSRI overpayment recoupment practices. www.chirotexas.org

The court reaffirmed this decision on Jan. 19, 2011, in denying BCBSRIʼs motion to reconsider its earlier ruling on

T h e Te x a s C h i r o p r a c t i c Association is an active participant in COCSA.

★★★★★★★★

Medicare "Float" Nets Insurance $1/3 Billion

federal subject matter jurisdiction and denying its parallel motion to certify the Courtʼs interlocutory order for immediate appeal to the First Circuit. A Preliminary Injunction against BCBSRI was issued by the court on Nov. 11, 2010 to force it to halt its ongoing recoupment of new benefit payments." “The Congress of Chiropractic State Associations, COCSA, was formed in the late 1960ʼs a n d i s a n o t - f o r - p r o fi t organization consisting of state chiropractic associations in all 50 states. The mission of the Congress is to provide an open, nonpartisan forum for the promotion and advancement of the chiropractic profession through service to member state associations. COCSA will lead the profession in compliance with new h e a l t h c a r e r e f o r m l a w, PPACA and existing federal l a w, E R I S A , f o r p r o p e r reimbursement."

Private health insurance plans catering to Medicare recipients are making millions by taking money the government sends and using it to make investments, federal investigators say. The Associated Press reported that in financial parlance, it's called “playing the float." Medicare lets its plans keep the cash the AP noted. "An audit by the Health and Human Services inspector general's office estimates that private Medicare Advantage plans collected $376 million from investment income on advance payments from the government in 2007, the latest year available." "Of 50 plans audited, only two told investigators that they subtracted investment earnings from their Medicare bids for the following year. The rest pocketed the money." "Medicare typically pays the plans 46 days before they need the money to cover medical services, the audit found." Texas Journal of Chiropractic

"If Medicare had hung on to the money for a few more weeks, the program's trust funds could have collected $450 million in interest income from the Treasury, auditors estimated."

"The problems conclude that the overuse and misuse of medical procedures is so widespread as to now be accepted as 'conventional wisdom' and institutionalized as 'standard of practice'".

"Having Medicare pay on the fi r s t o f t h e m o n t h i s a headache for the Treasury, which also sends out Social Security checks at that time. But Medicare says it can't change the date without getting Congress to sign off."

"The academic medical centers are the worst," says Medical Doctor Lundberg, "because they posture as presenting the best medical science while practicing as the largest generator of the most revenue for their institutions."

★★★★★★★★

Medical Marketing Machine Medical Doctor George Lundberg, Editor-at-Large for MedPageToday, REPORTS HERE that "'the MBA has done more to harm the public through bottom-line hospital administration than have many dread diseases'." "One of my favorite journalists, Maggie Mahar, has been writing about the stent problem as well as many other overuses of TOL (technology for lucre)[sic], in columns and her book, Money Driven Medicine, for many years." "And Dr. Nortin Hadler, a professor at UNC in Chapel Hill has a number of books that document the mass misbehavior of American medicine at large for many years." Texas Journal of Chiropractic

The overuse and misuse of medical procedures is so widespread as to now be accepted as 'conventional wisdom' and institutionalized as 'standard of practice. Don't continue to be entrapped by the AMMM, the American Medical Marketing Machine. --Editor-at-large, MedpageToday.com

"And they thereby teach the students and residents to emulate them, doing with great competence loads of procedures that don't need to be done at all." "Don't continue to be entrapped by the AMMM, the American Medical Marketing Machine. That's my opinion. I'm Dr. George Lundberg, At Large for MedPage Today."

★★★★★★★★ 28

AMA Survey Shows Public LESS Confused Regarding Chiropractic The American Medical Association states that "A new survey announced by the AMA shows that … many are confused about the qualifications of health care professionals." "A physician-led team approach to care with each member of the health care team playing the role they are educated and trained to play is key to ensuring patients receive high-quality care, and most Americans agree," AMA Board of Trustees member Rebecca Patchin, MD, said. The AMA reports that 90% of the respondents believe that a "physician's additional years of medical education and training (compared to a nurse practitioner) are vital to optimal patient care, especially in the event of a complication or medical emergency." They state that 83% of respondents said "they prefer a physician to have primary responsibility for the diagnosis and management of their health care." Notice that their focus is shifting from the diagnosis of disease to the diagnosis and management of health care. www.chirotexas.org

about 20% who believe that they are MDs.

In the 2008 survey, the AMA reports, 38% believed that a doctor of chiropractic was a medical doctor, 53% knew that they were not, and 9% were not sure. The 2010 follow up survey reports that NOW only 31% believe that a doctor of chiropractic is a medical doctor, 64% know that they are not, and only 6% are unsure. Of the healing arts listed in the survey dentistry demonstrated, and continues to demonstrate that some 70% or more respondents believe that they are medical doctors. A similar number believe podiatrists are MDs as well. Nearly half of the respondents believed, and still do, that optometrists are MDs. Slightly fewer than half believe physchologists are MDs. Doctors of nursing practice, and audiologists each demonstrate about 30% of the respondents believing that they are MDs. Nurse practitioners and PTs have www.chirotexas.org

The survey also found that 70 to nearly 95% of the respondents believe that ONLY MDs should be allowed to perform: foot amputations, eye surgery requiring a scalpel, facial surgery, drug therapy for chronic pain, the use of medication for mental conditions, use spinal injections to treat chronic pain, administer and monitor anesthesia before and during surgery, and commit persons for psychiatric care against their will. Says the AMA: 91% in 2008 and 93% in 2010 said that "only licensed medical doctors should be able to use the title 'physician'." In 2008 48%, as opposed to 51% in 2010, state "It is easy to identify who is a licensed medical doctor and who is not by reading what services they offer, their title, and other licensing credentials in advertising or other marketing materials." It also seems that support is waning for "legislation in your state to require all health care advertising materials to clearly designate the level of education, skills and training of all health care professionals promoting their services." 93% supported such measures in 2008, only 87% support it in the 2010 survey.

Both the 2008 and the 2010 surveys were conducted on behalf of the "Scope of Practice Partnership" and surveyed only "850 adults nationwide." A 3.4% margin of error is reported.

★★★★★★★★

General Anesthesia--not Sleep, Coma Medscape.com reports that "Despite what anesthesiologists may tell surgery patients, the brain under general anesthesia is not "asleep," it is placed in a reversible drug-induced coma, according to 3 neuroscientists who reviewed and synthesized the latest research in general anesthesia, sleep, and coma." "Anesthesiologists use the term 'sleep' so as not to scare patients with the word 'coma' .... In reality, however, general anesthesia is a type of coma." "General anesthesia, the scientists say, is functionally equivalent to brainstem death, and perhaps explains why some patients do not fully recover consciousness for several hours after general anesthesia, as well as why postoperative cognitive dysfunction could persist in elderly patients for several months afterward."

Texas Journal of Chiropractic

The authors "hope their article will facilitate more informed discussions among anesthesiology, sleep, and coma researchers and lead to new approaches to creating the state of general anesthesia, sedation, and sleep, as well as new approaches to facilitating coma recovery. They hope it will also lead to better education of the public about general anesthesia."

participation with one plan •

•

★★★★★★★★ •

Humana Victory The American Chiropractic Association reports that "ACA, in collaboration with the Kentucky Chiropractic Association, has led a longfought effort against Humana and its network, Healthways. " "Humana was fined $100,000. This is typical of the amount o f fi n e s i s s u e d b y t h i s DOI. ...the order reflect[s] the complaints brought by the ACA and KAC, including: •

•

subjecting providersʼ claims to UR based on discriminatory geographic location incorrectly coding chiropractic claims and misrepresenting network and negotiated reimbursement rates forcing providers to participate in all plans as a condition of

Texas Journal of Chiropractic

•

failing to provide a grievance procedure that provides notice in accordance with statutory time frames doing business with unlicensed TPAs and failing to notify enrollees of the identity of and their relationship with these TPAs improperly denying claims that were sent to Humana instead of to the TPA (providers were inappropriately instructed by customer service reps) issuing EOBs that were misleading and did not provide a reasonable explanation related to claim resolution failing to notify the Office of Insurance of UR policy and procedure changes"

"We are hopeful that we have sent a strong message to Humana that the chiropractic profession must be listened to and that turning a deaf ear to us is not a good idea." Says the order: "WHEREAS, the Kentucky Department of Insurance [hereinafter, "DOl" or "Department"] conducted an on-site Target Market Conduct Examination of the activities of Humana for the time period of October 1, 2008 through September 30, 30

2009 ....; WHEREAS, the Market Conduct Examination Report alleged deficiencies the Company's business practices as follows: (1) The Company subjected providers' claims to utilization management review based on discriminatory geographic location; (2) The Company incorrectly coded chiropractic claims and misrepresented the network and negotiated reimbursement rates; (3) The Company failed to retain and/or produce records for examination by the commissioner including a complete and accurate listing of all providers and their contracts, filed policies, and other documents; (4) The Company required providers to participate in all plans offered as a condition to participation in any health plan offered; (5) The Company failed to file provider contracts and other forms with the Department; (6) The Company failed to disclose the internal and external appeal review procedures and failed to file such procedures with the Department. The Company failed to develop a grievance procedure that offers notice in accordance with statutory time frames; (7) The Company entered into business arrangements with www.chirotexas.org

unlicensed administrators. The Company also failed to provide notice to insureds advising them of the identity of, and the relationship between, the third party administrators and the insurer; (8) The Company failed to identify the correct insuring entity on members' ID cards; (9) The Company improperly denied and rejected claims sent directly to Humana instead of the appropriate TPA; (10) The Company issued EOBs that were misleading and confusing and failed to provide a reasonable explanation related to the claim resolution; (11) The Company failed to hold the member harmless after claim settlement; (12) The Company failed to file changes to the utilization and review policies and procedures with the Department." "NOW, THEREFORE, after consideration and review of the Market Conduct Examination Report of Humana, it is ORDERED .... that Humana shall continue to establish and implement procedures to correct the deficiencies and violations noted in the Report. The Department will conduct another target exam in 2011 to review Humana's corrective action. It is further www.chirotexas.org

ORDERED .... that Humana shall pay a civil penalty in the amount of one hundred thousand dollars ($100,000.00). The Company shall be subject to additional penalties should the future target examination referenced herein reveal further violations of the Kentucky Insurance Code. It is further ORDERED that the terms of this Order shall not limit, inhibit, or restrict the DOl's ability to investigate individual complaint files, regardless of their sources, which may involve Humana; nor shall this Order limit, inhibit, or restrict in any manner the Office's ability to take disciplinary action against Humana for any proven violations i d e n t i fi e d t h r o u g h t h e course of any specific i n d i v i d u a l investigation."

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Chiropractic Still Ranks High Among Career Choices

than several other healthcare professionals, including physical therapists (70), physician assistants (89), dentists (97), and registered nurses (100)."

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Doctor Shortage Stats. The American Medical Association states: "We anticipate a deficiency of at least 125,000 physicians by 2025." "Already, 22 states and 17 medical specialty societies are reporting shortages." "For decades, we have watched the p h y s i c i a n population move into cities and high-population areas, leaving vast areas of this country woefully underserved."

As reported in the Wall Street J o u r n a l , chiropractic ranked 56 out of 200 career choices in a list of The Best and Worst Jobs.

"There still is a primary care shortage -- at least partially because pay differentials for primary care physicians make it even more difficult to repay medical school debts, which average $155,000."

"The data ... rated jobs based on income, working environment, stress, physical demands and job outlook. Chiropractors scored higher

"And then there is 2014, the year of shrinking access. That year, when the full provisions of the health reform law kick in, we will see 32 million more

Texas Journal of Chiropractic

patients -- people who up to now have been uninsured and often without a physician." "If all that isn't enough, HHS estimates that a third of today's practicing physicians will retire during the next decade." "Although medical school tuition remains a huge stumbling block, especially for minorities, first-year medical students are on the increase -- predicted to be up 21% by 2013 over 2009. Many programs are growing; moreover, nearly two dozen new medical schools have opened, sought accreditation or been announced in the past three years." "The 2009 stimulus package and health reform law designated nearly $300 million for the NHSC to fund primary care practitioners. NHSC plans to have nearly 11,000 clinicians caring for more than 11 million people by the end of this year, a threefold increase since 2007." "Individual medical schools also are taking steps to build physician populations in underserved areas. One example is the new Texas Tech Paul L. Foster School of Medicine in El Paso, which aims to supply physicians for El Paso, the Texas-Mexico border area and west Texas. Currently, this region has fewer than half the national average of 254 doctors per 100,000 residents." Texas Journal of Chiropractic

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COLLEGE

off of the website if you already have a box that youʼd like to collect your items in. Go to www.terracycle.net to find out more info. Recyclable items may be dropped off at Parker College of Chiropractic by contacting: R e b e k a h G a g n a r d ( Tr i 2 S t u d e n t ) – Rebekah.Gagnard@gmail.co m or 318.613.9585.

Parker Students Invite You to Recycle to Support Chiropractic Students at Parker Chiropractic College have developed a fundraiser project to raise funds for the support of the chiropractic profession. The students have teamed with TerrCycle at http:// www.terracycle.net to offer free waste collection programs for hard to recycle materials which are then turned into affordable green products. Products for sale can be found at the Terracycle.net website. Terracycle operates to collect waste products. You will be shipped prepaid postage labels and collection materials. Once youʼve collected enough packets or packages to fill the collection b a g , a f fi x t h e p r e - p a i d postage label. Drop it off at a UPS location. You will also be able to print your own labels 32

Join the “Parker Patriots” An invitation code will then be emailed for you to join the team, with money from recyclable items donated to TCA PAC Defense Fund.

TCC partners with Logan, Parker to form ICON Texas Chiropractic College is excited to announce its partnership with Logan College of Chiropractic and Parker College of Chiropractic and the formation of a new collaborative research program, the Integrative Chiropractic Outcomes Network (ICON). "ICON is a practice-based research network (PBRN), www.chirotexas.org

which the U.S. Agency for Healthcare Research and Quality defines as a group of clinicians and practices working together in ambulatory care to answer community-based healthcare questions and translate r e s e a r c h fi n d i n g s i n t o practice." "For ICON, each partner does what they do best: practitioners provide their customary excellent care, and the research team collects and analyzes data to answer important research questions. Data collection is streamlined to avoid intruding into individual practices." "To be a success, ICON needs the assistance of as many doctors of chiropractic from across the country as possible, not just the alumni of TCC, Parker, and Logan. There are no costs to practitioners involved in the PBRN, and continuing education credits may be available in some states for the training portion of participants." "ICON is unique in that the goal is not only to enhance the health of the public but to contribute to the evidence base related to health promotion and disease prevention." "The first project will collect cross-sectional data on patients presenting in participating offices for one week. It involves a brief form patients complete only once. www.chirotexas.org

Doctors also complete two forms, once, about their practice characteristics. This usually takes about five minutes. Phone training for you and your staff will take approximately 20 minutes." "Any DC interested in participating may learn more online at w w w. C h i r o A C C E S S . c o m / ICON. Interested parties with specific questions may also contact TCCʼs Director of Research Will Evans, DC, PhD, at wevans@txchiro.edu; Loganʼs Director of Clinical Research Cheryl Hawk, DC, PhD, at cheryl.hawk@logan.edu; or Parkerʼs Dean of Research Ronald Rupert, DC, MS, at rrupert@parkercc.edu."

TCC Welcomes New Clinic Dean Texas Chiropractic College (TCC) welcomed Dr. Barry C. Wiese, DC, MSHA, as the schoolʼs new dean of clinics, TCC President Dr. Richard G. Brassard announced. Wiese will be responsible for overseeing the quality of patient care and student education at the Moody Health Center and the Campus Health Clinic. “Itʼs great to be here, and to have the opportunity to be involved with TCC,” said Wiese. “The college has tremendous vision, and a 33

strong desire to be the best chiropractic college anywhere — it was a simple decision to be a part of what I consider the future of chiropractic clinical education. In addition, we are blessed with a phenomenal faculty and staff — Iʼm very excited about the possibilities.” "Wiese received his Doctor of Chiropractic degree from Palmer College of Chiropractic in 1994 and his Masterʼs of Science in Healthcare Administration and Management from Rosalind Franklin University in 2009. He additionally holds a diplomate in chiropractic neurology and is both a certified chiropractic sports p h y s i c i a n a n d c e r t i fi e d strength and conditioning specialist." "With almost 16 years of clinical and teaching experience, Wiese has been a valued member of the clinics at both New York Chiropractic College (NYCC) and Palmer and has also been successful in private practice." "In addition to his clinical, teaching, and practical experience, Wiese is currently a member of the editorial board for the Journal of Chiropractic Medicine. He has presented a several symposiums on the topics of geriatrics and integrative healthcare as well as rehabilitation and clinical education."

Texas Journal of Chiropractic

PCC Names New VP of Development Parker College of Chiropractic recently appointed JoLynne Jensen as vice president of development. In her new role, Jensen will work to develop the college and foster relationships with others in the community. “Parker College is expanding in many ways and JoLynne will play a vital role in these expansions,” said Dr. Fabrizio Mancini, president of Parker College of Chiropractic. “Weʼre especially excited about her experience in advancing and extending new opportunities.” "Previously, Jensen served as a nonprofit and fundraising consultant, a role she played for many years with organizations from Dallas to Tokyo. She has more than 30 years of experience in the nonprofit sector." “Working with nonprofits and higher education institutions is truly my passion,” said Jensen. “Iʼm eager to support the college in its future endeavors.” "She spent 18 months as vice president of development at the Dallas Symphony where she was responsible for an annual contributed income of 10 million dollars plus, and planning a 100 million dollar endowment campaign."

Texas Journal of Chiropractic

"For nearly six years, Jensen worked as executive director for a newly created organization, The Advisory B o a r d o f t h e B o o k e r T. Washington High School for the Performing and Visual Arts. She coordinated a 32 million dollar capital campaign for the 55 million dollar project to renovate and expand the Arts Magnet High School in Dallas, TX. As of December 2007, the campaign had secured more than 34 million dollars in contributions — a public school record. “She was honored as Greater Dallas Chapterʼs 2009 Outstanding F u n d r a i s i n g Executive by the Association of Fund R a i s i n g Professionals."

PCC Scholars honored "Whoʼs Who Among Students awarded 17 Parker College of Chiropractic students with one of the most prestigious awards the academic community can bestow — selection to Whoʼs Who Among Students." "This elite honor is conferred by more than 2,842 universities and colleges in all 50 states and the District of Columbia. A committee of faculty and students selected the nominees based on GPA, participation and leadership in academic activities, and school or community service." 34

"Among those students honored were Chad Adams, Nick Anthony, Asha Brewer, Jonnathan Camacho, Kara Dudowicz, Kayla Glover, Michael Medlock, Jordan Pellien, Abby Perone, Lauren Rains, Jeremy Rawls, Dan Sullins, Jenna Swanson, S t e p h e n Ti e t j e n , C a r o l Watkins, Aaron Wilson, and Anna-Marie Winner."

GPA Requirement for DC Degree Program Raised

Dynamic Chiropractic reports that "In an unprecedented move to increase academic standards in the chiropractic profession, National University of Health Sciences (NUHS) announced that it is raising the minimum grade point average required for admission to its Doctor of Chiropractic Medicine degree program from 2.50 to 2.75. The new standard will be applied to the Fall 2012 incoming class." "Currently, the Council on Chiropractic Education (CCE) requires a 2.50 GPA for students entering accredited DC programs. National's new standard will also apply to students seeking the Doctor www.chirotexas.org

of Naturopathic Medicine degree, the university's other first professional doctoral degree program." "The impetus for raising our GPA requirement started back in 1991. At that time, the Foundation for Chiropractic Education and Research (FCER) published a report by the Corporate Health Policies Group analyzing why chiropractic institutions were not receiving federal funding from various government programs. Their findings pointed to a relative lack of academic achievement markers by most professionals in chiropractic medicine when compared to professionals from other medical specialties." "In 1993, ... an advisory paper for National's Board of Trustees that recommended specific changes in admissions criteria and academic programming that National and other chiropractic institutions could and should implement in order to bring the profession more in line with the academic standards held to by other medical professions. This included recommendations for requiring candidates for admission to have completed a baccalaureate degree, and ultimately to raise the grade point average requirement from 2.50 to 2.75." "In 1999, National added the requirement for a baccalaureate degree." www.chirotexas.org

"The NUHS board agreed that raising the GPA would be a positive step for the university. Dr. Winterstein advised not to push such a major change too quickly without adequate time to inform the public. The board agreed to implement the change for Fall 2012." "National's current average GPA for incoming students is 3.20."

Parker Gala Raises Chiropractic Research Funds

Parker College of Chiropractic held the Third Annual Parker Gala during Parker Seminars Las Vegas. Event proceeds will provide additional funding for chiropractic research and will benefit the advancement of the profession. Over the last several years, the profession has made great strides in gaining acceptance among both the 35

public and the greater medical community. Millions of dollars are given to medical research each year with only a small number of federal grants being awarded to projects involving chiropractic. The gala proceeds provide grants to support small studies conducted by researchers at academic institutions. These studies become significant when the research project is published in scientific or peerreviewed chiropractic journals, and this achievement serves as the bridge to secure larger federal and foundation grants. The Drugless Research Hall of Fame Award was presented to the third inductee, Dr. Arlan W. Fuhr, president of The National Institute of Chiropractic Research and co-founder and chief e x e c u t i v e o f fi c e r o f Activator Methods International. Dr. Fuhr was honored with the award because of his dedication to chiropractic research and pursuit of excellence as a chiropractor to impact the health care of the world without drugs. Dr. Fuhr is the co-inventor of the Activator速 Adjusting Instrument and the Activator Method Chiropractic Technique速. In 1985, he received the first grant ever given to chiropractic from the National Institutes of Health. The Drugless Research Hall of Fame is an innovative recognition platform designed by Parker College to showcase significant drug-

Texas Journal of Chiropractic

free contributions in research worldwide.

★★★★★★★★

Life Expectancy Lags in the U.S. REPORTED HERE is "Life expectancy in the U.S. lags behind that of many other high-income countries and is currently ranked by the United Nations at number 28, despite spending the most on healthcare ...." "In 2006, the average life expectancy at birth was 75.1 years for American men and 80.2 years for women, rising from 47.9 years and 50.7 years, respectively, in 1900 and 65.4 and 71 in 1950." "In contrast, life expectancy for men in Japan was 79.2 years in 2007 and 86 years for women, up from 57.6 and 60.9 in 1950, respectively ...." "The U.S. performs well in the detection and treatment of several of the main sources of early mortality, including cancer and strokes, but its major shortcomings have been its failure in preventive medicine and in curbing unhealthy lifestyles," the report cites.

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Federal Credential Disclosure The American Medical Association REPORTS HERE t h a t " Tw o c o n g r e s s m e n introduced a measure on Jan. 26 that would require people providing medical care to be honest about their training a n d q u a l i fi c a t i o n s . T h e Healthcare Truth and Transparency Act has the backing of several physician organizations, including the American Medical Association, the American Osteopathic Assn. and the American Society of Anesthesiologists. Several states have taken similar action to rein in patient confusion and prevent fraud, and more are considering such legislation." "This is the second consecutive year the federal bill has been sponsored by Reps. John Sullivan (R, Okla.) and David Scott (D, Ga.). The measure would require anyone advertising health care services to state in the advertisement the license that authorizes them to provide those services."

"Moreover, the impact of unhealthy behaviors and inadequate access to healthcare is most concentrated at the lower end of the socioeconomic ladder."

"The proposal would make it unlawful for anyone to provide deceptive or misleading information that causes patients to believe they have training or qualifications that they do not. The Federal Trade Commission would enforce the law."

Texas Journal of Chiropractic

"The AMA has drafted even more stringent model legislation to require practitioners to identify their license type in ads, wear a visible photo ID badge when seeing patients and post their type of license in their offices." Authors claim that this legislation "would not limit any health professional's approved scope of practice. 'We just want people to do what they were trained to do.'

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Decrease Diagnostic Imaging The American Medical Association REPORTS HERE that "The American College of Physicians wants doctors to stop and think before ordering diagnostic imaging for patients with low back pain. Such tests are recommended only for those with severe or progressive neurologic deficits or signs of "a serious or specific underlying condition," according to ACP clinical guidance ..." "Research shows that unnecessary diagnostic imaging drives up health care costs and has little value for most patients. The tests might cause harm through unnecessary radiation exposure and lead to more tests or invasive procedures that fail to ease symptoms." www.chirotexas.org

"Low back pain is one of the most common reasons patients visit physicians. Studies have shown that about a quarter of adults report experiencing back pain for one day in the last three months ..." "The ACP and the American Pain Society have recommended selective use of diagnostic imaging -- such a s l u m b a r r a d i o g r a p h y, computed tomography and magnetic resonance imaging -- since 2007 ...." "The clinical guidelines were issued to help reduce direct costs from the tests as well as costs from follow-up visits, additional tests, referrals and invasive procedures that have questionable benefit ...." "Physicians often feel compelled to recommend diagnostic imaging because of patient pressure, the expectation of a clear diagnosis, excessive precaution due to medical liability concerns or financial considerations because of high reimbursements for such tests ...." "One survey found that more than a third of physicians said they would order an imaging test if a patient insisted on it." "They found no difference in pain, function, quality of life or overall improvement between patients who underwent imaging tests and those who did not. There was no www.chirotexas.org

difference in patients who received radiography versus advanced imaging tests such as MRI and CT scans."

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Osteoporosis Guidelines Change It is REPORTED HERE that "The U.S. Preventive Services Task Force (USPSTF) has finalized new guidelines expanding the pool of women for whom osteoporosis screening is recommended. The guidance, which was released in draft form in July, recommends screening for all women ages 65 and older, as well as younger women who have a level of risk equivalent to a 65-year-old white woman with no additional risk factors. White women have a greater osteoporotic fracture risk than women of other races or ethnicities." "Although no lower age limit was recommended, the task force noted that women as young as 50 might have a level of risk justifying screening on the basis of the type and number of risk factors." "The new recommendations update the 2002 USPSTF 37

guidelines that recommended bone-density screening for women ages 65 and older and women ages 60 to 64 who are at increased risk for osteoporotic fractures. The earlier guidelines did not address screening in women younger than 60 or in men." "The task force provided examples of younger white women who would have comparable risk: A 50-year-old current smoker with a body mass index of less than 21, daily alcohol use, and parental fracture history. A 55-year-old with a parental fracture history. A 60-year-old with a BMI of less than 21 and daily alcohol use. A 60-year-old current smoker with daily alcohol use." "The majority of the draft recommendations remained u n c h a n g e d i n t h e fi n a l version. The key guidance included the following: Although no controlled studies have evaluated the effect of screening for osteoporosis on outcomes, the benefit of treating screening-detected osteoporosis is judged to be "at least moderate" in women 65 and older and in younger women with equivalent risk on the basis of risk factors. There is convincing evidence that bone-density tests -- most commonly dual-energy x-ray Texas Journal of Chiropractic

absorptiometry of the hip and lumbar spine and quantitative ultrasound of the calcaneus -predict short-term risk of osteoporotic fractures in women and men.

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Walking Lowers Diabetes Risk It is REPORTED HERE that "Walking more not only wards off weight gain in middle age but also helps prevent or delay diabetes, a population-based study in Australia affirmed. Middle-age Australians who increased their daily step count over five years maintained significantly higher insulin sensitivity at the end of that period than those who didn't boost their steps ...." "This effect appeared largely due to lower adiposity, though independent of calories consumed, the group reported .... If causal, sedentary individuals who change their habits to walk an extra 2,000 steps (about one mile) a day might expect to shave 0.16 kg/m2 off their body mass index and boost insulin sensitivity by 2.76 units, the researchers estimated."

steps (about five miles) per day could expect their BMI to drop 0.83 kg/m2 and their insulin sensitivity to rise 13.85 units -- a 12.8% increase from the mean for men and 11.5% for women." "Thus, sedentary individuals who reach 10,000 steps (about five miles) per day might expect a three-fold improvement in HOMA insulin sensitivity compared with increasing steps to a recent recommendation of 3,000 steps five days a week, the investigators projected."

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Sleep Linked to Healthier Kids It is reported that "Children who get more sleep, even if it's only "catch-up" sleep on weekends, may be protected against obesity and other metabolic problems, researchers suggested. A study conducted among more than 300 children ages four to 10, found that those who slept the least and had the most irregular sleep schedules were over 4.4-fold more likely to be obese, ...."

"A relatively inactive person who gets to the goal of 10,000

"Short nights and variable sleep patterns were also linked to altered levels of insulin, LDL cholesterol, and the inflammatory marker highsensitivity C-reactive protein among a subsample of the study group .... But compensating with extra sleep on the weekends lowered the

Texas Journal of Chiropractic

kids' risk of obesity to less than 2.2-fold excess, the group wrote." "Even just an extra half hour of sleep per night might lower body mass index (BMI) and reduce the metabolic effects that predispose to diabetes and cardiovascular disease later in life, they proposed." "Not getting enough sleep could cause changes in neuropeptides that regulate appetite -- raising ghrelin and reducing leptin -- and lead to more eating and obesity ...." "Optimal sleep is associated with better attention, better ability to learn, and better memory. There are a lot of advantages about sticking to a regular bedtime routine with appropriate time being allowed for the child to sleep." "... consistently long sleep in the recommended range of about 9.5 hours on both weekdays and weekends was associated with the healthiest metabolic profile." "Significant alterations in insulin, LDL, and highsensitivity C-reactive protein levels were linked to short sleep duration (about 6.5 hours) throughout the week as well as normal duration (about eight hours) on the weekend whether long or short on school nights." "In other words, the longer and more-stable sleep duration is, the less likely a child is to manifest metabolic www.chirotexas.org

dysfunction," the researchers concluded in the paper.

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New Study Shows Benefit of Chiropractic Maintenance Theraapy

Delaying Hormone Use Cuts Breast Cancer Risk "Women who begin using hormone therapy close to the time of menopause are at greater risk for breast cancer than those who wait five years or more, a large prospective study found. Among current users of estrogen-only hormone formulations who began the therapy soon after menopause, the risk of breast c a n c e r w a s s i g n i fi c a n t l y higher than in nonusers." "But for those who deferred the therapy for five years or more, the relative risk was not increased ...."

REPORTED HERE Spine Journal will soon publish the "first ever randomized study on manipulation maintenance therapy for chronic low back disorders...." "The maintenance group actually showed even further improvement after the 10 once per month treatments! This is a very important study because of the benefit to patients and because chiropractic maintenance treatment is controversial among many non chiropractic providers and stakeholders."

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www.chirotexas.org

"The risk among women currently taking estrogenprogestin formulations was greater than for those taking estrogen alone, with relative risks of 1.53 and 2.04 among those beginning more and less than five years after menopause, respectively."

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Fruit and Veggies CUT Risk of Heart Disease It is REPORTED HERE that "People who want to significantly reduce their risk of dying from ischemic heart disease may do well to greatly increase their daily intake of fruits and vegetables, a large 39

prospective European study suggests. ...those who consumed eight or more portions of fruit and vegetables each day had a reduction of 22% in their risk of fatal ischemic heart disease compared with those who ate fewer than three portions ...." "In addition, increasing daily fruit and vegetable intake by just one portion led to a 4% decrease in risk of death from ischemic heart disease ...." "The World Health Organization has recommended a daily intake of 400 to 500 gm (around 14 to 18 oz) per day -- about five or six portions a day of fruits and vegetables." "A longstanding suggestion is that micronutrients in food have antioxidant effects that help prevent atherosclerosis, although randomized trials of supplementation of antioxidant vitamins have not confirmed benefits. 'It is, however, worth noting that consuming antioxidant supplements is not the same as increasing the consumption of fruits and vegetables because there are many other components in fruits and vegetables that may confer a cardioprotective effect....'" "Preventing inflammation may also contribute, some experts say. 'A possible mechanism is the impact of fruit and vegetables to lower i n fl a m m a t i o n , a k n o w n mechanism contributing to Texas Journal of Chiropractic

cardiovascular disease' …. These kind of results call out for greater emphasis on vegetable and fruit intake by healthcare professionals and by those directing public health policy.'"

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Dietary Guidelines Tweaked It is REPORTED HERE that "The federal government has issued the first update in five years of its "Dietary Guidelines for Americans" -but despite broad recognition of the U.S. obesity crisis, the update left the major cornerstones of the guidelines largely intact." "The revision, a joint effort of the U.S. Department of Agriculture (USDA) and the Department of Health and Human Services (HHS), was released today -- although it

carries a 2010 date. USDA and HHS last updated the guidelines in 2005." "Basic recommendations for maximum intake of fats and cholesterol, sodium, potassium, and fiber remain unchanged from the last edition."

•

Trans-fats: less than 1% of calories

•

Cholesterol: less than 300 mg

•

Fiber: 14 g per 1,000 calories

•

Potassium: 4,700 mg

•

Sodium: less than 1,500 mg for all African-Americans and those with hypertension, diabetes, and chronic kidney disease (including children), as well as persons older than 51; everyone else is advised to consume under 2,300 mg of sodium a day

•

Fruits and vegetables: at least 2.5 cups

•

Refined grains: less than 3 oz"

"Instead, the "Dietary Guidelines for Americans 2010" focused mainly on wording tweaks -reorganizing how some of the recommendations are presented." "The new edition of the dietary guidelines sets the following daily limits or targets: •

Fat intake: 20% to 35% of total calories

•

Saturated fat: less than 10% of total calories (monoand polyunsaturated fats may be substituted)

Remember to schedule your attendance at the TCA Annual Convention!

June 9-12, 2011

Texas Journal of Chiropractic

www.chirotexas.org

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