Legal Experts Put Colorado Board on Notice: You are acting outside statutory authority

Legal Experts Put Colorado Board on Notice: You are acting outside statutory authority

Rule 15 seeks to impermissibly expand the law on informed consent 

The Colorado Board of Chiropractic Examiners held a stakeholder meeting to collect input on proposed changes to Board Rule 15 on November 14, 2018.  The Rule has to do with so called UNPROVEN tests or procedures. It lays out what is considered unproven and how you must get informed consent from doing tests or procedures the BOARD deems to be unproven. The language of RULE 15 allows only those tests and procedures that are taught in chiropractic schools accredited by the Council on Chiropractic Education (CCE). 

Whether the test or procedure is taught as part of the regular curriculum of at least one college of chiropractic approved by the Council on Chiropractic Education. 

It gets worse. Read the language very carefully. 

Any practice system, analysis, method, or protocol which that does not include the complete assessment, evaluation, or diagnosis of the condition to be treated before beginning treatment of the patient. 

Any practice system, analysis, method or protocol, which that relies upon diagnostic methods that are not generally recognized or accepted within the profession or which that does not have scientific validity. 

Any practice system, analysis, method, or protocol, which that is represented as a means of attaining spiritual growth, comfort, or well-being. 

According to attorney Kari Hershey who represents multiple chiropractors with respect to the Colorado Board of Chiropractic Examiners’ proposed rulemaking, the rule: 

“. . . seeks to impermissibly expand the law on informed consent, generates ambiguity, increases liability on doctors, and adds unnecessary regulatory burden.” 

Hershey took her warning a step further stating: 

“Agency actions in excess of statutory authority are void.    Because the Board can only act pursuant to its statutorily authorized powers, the Board is limited to rulemaking only within the four corners of its governing statute and does not have the ability to expand this authority absent legislation amending the Chiropractic Practice Act.” 

The Colorado Board of Chiropractic is following the playbook of several rogue chiropractic regulatory boards across the country that have been using their rulemaking ability to expand the scope of practice and enact other changes in an effort to get around the statute which can be changed only through the legislature.     

Regulatory boards in chiropractic are generally controlled by chiropractors who want to expand the scope of practice while at the same time restrict chiropractors who wish to manage vertebral subluxation. They have used their perceived ability to add or change rules in order to fulfill their agenda. 

Texas and Florida are two recent examples of where this is happening in addition to Colorado. In Texas the Board started by attempting to add MUA and needle EMG to the scope. This backfired on the Texas Board and resulted in a protracted legal battle where just recently the court ruled that chiropractors can no longer claim the nervous system as within their domain as part of the subluxation. 

In Florida, it’s been used in regards to online continuing education which has harmed practicing chiropractors while at the same time enriching trade associations whose main source of income is through traditional “butts in seats” CE programs. 

Some board members have or had clear conflicts of interest with CE providers and schools, did not disclose those conflicts and did not abstain from voting.        

SEE MORE about Texas 

SEE MORE about Florida 

In Colorado, Hershey warned: 

“The Board’s powers with respect to rulemaking are limited.  The constitutional doctrine of separation  of  powers  mandates  that  agencies  act  only  within  the  scope  of  their  delegated authority.” 

Addressing the influence being leveled on state boards by trade organizations such as the American Chiropractic Association (ACA) who has member chiropractors sitting on state boards across the country and ostensibly doing their bidding for them in their effort to expand the scope of practice nationwide and marginalize the practice of managing vertebral subluxation - Hershey stated: 

“ . . .the board shall not adopt the code of ethics of any professional group or association by rule or regulation.” 

The ACA recently re-branded itself and has adopted ethics rules that make it impossible for chiropractors who rely on radiographs to assess the biomechanics related to vertebral subluxation. 

Hershey goes on to educate the Colorado Board on the doctrine of informed consent and their overstepping of boundaries in that regard: 

“The Chiropractic Practice Act does not confer authority on the Board to expand consent requirements beyond procedures to include an undefined universe of testing.  Nowhere in the Act is the Board conferred any authority to expand the legal requirements for informed consent. The rule, as proposed oversteps.” 

According to attorney and chiropractor Christopher Kent DC, JD, President of the Foundation for Vertebral Subluxation: 

“The proposed requirements are unacceptably vague. Enforcement of such provisions would necessarily require establishing an arbitrary and capricious standard. The board may be exposed to allegations of abuse of discretion. Existing rules adequately protect the public.” 

Kent continued: 

“Furthermore, it may be argued that the proposed language interferes with a licensee’s constitutional right to freely contract with a patient for the provision of lawful services.” 

Addressing the requirement that the only tests and procedures allowed to be used are only those taught in a school accredited by the Council on Chiropractic Education, Kent asserted: 

The criteria that a “test or procedure is taught as part of the regular curriculum of at least one college of chiropractic approved by the Council on Chiropractic Education” is absurd on its face. If such a requirement were imposed on medical practitioners, many, perhaps most, medical and surgical procedures would be considered “unproven” merely because they are taught at the postgraduate (residency) level. The exclusion of postgraduate chiropractic education is preposterous. In addition, permitting one college of chiropractic to define whether a procedure is “unproven” is improper delegation.” 

Addressing the recent Supreme Court case: North Carolina Board of Dental Examiners versus the Federal Trade Commission, Kent warns: 

“The proposed regulation appears designed to confer an economic advantage to benefit board members and those who adopt a particular philosophical approach to chiropractic. One could argue that the board, as configured, lacks appropriate state supervision, and would be abusing its discretion in promulgating such rules.” 

Making matters worse for Colorado chiropractors is that they are unlucky enough to have one of the most outspoken and venomous anti subluxation zealots in the profession actually sitting on the Board: Michael Simone DC. Past Chairman of the Board of the American Chiropractic Association and card carrying member of the West Hartford Group – a rabid anti subluxation special interest group. Readers may recall that Simone has stated publicly that chiropractors who practice in a vitalistic subluxation model should be ELIMINATED

Kent stated:

“The Colorado chiropractic board should realize that its mandate is to protect the consumer public, and not to promulgate regulations which limit free market competition.”

Hershey’s closing comments include: 

“Perhaps most importantly, the Board proposes a rule that appears to give the Board de facto power to decide, without specific advance notice to doctors, tests that are ‘unproven.’ The law requires more.”

The following statement from Kent gets to the heart of the Colorado Board's inability to think critically:  

"Furthermore, prohibition of 'Any practice system, analysis, method, or protocol, which is represented as a means of attaining spiritual growth, comfort, or well-being' is so bizarre that it defies commentary. This should be the objective of every doctor, regardless of profession."

McCoy Press