Scope Issues Continue to Plague Texas Board

Originally signed in 1949, Texas statutorily defined chiropractic in its purest, subluxation-centered definition. As the ensuring decades progressed, however, Texas DCs began to engage in activities outside the “narrow” scope of locating, analyzing and correcting vertebral subluxation. Subsequently, after a steady, effective push in the Legislature, a groundbreaking Act was signed into law in 1989 that officially permitted chiropractors to use (1) “objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body” and (2) “adjustment, manipulation, or other procedures in order to improve subluxation or the biomechanics of the musculoskeletal system. (See Act of May 12, 1989, 71st Leg., R.S., ch. 227, §§ 1–3, 1989 Tex. Gen. Laws 1005, 1005–06).

Ultimately giving DCs the freedom to interpret the law according to their own paradigm, the Texas Board of Chiropractic Examiners (TBCE) has continued to expand the scope and has, subsequently, been under fire by key health care stakeholders because they have permitted examination and treatment procedures that are ostensibly outside of this statutory scope. Two key areas of contention that have proven to be a thorn in the TBCE’s side have been performing procedures requiring needle insertion into the body (i.e. needle EMG and acupuncture) and manipulation under anesthesia (MUA).

Due to significant pressure from the Texas Medical Association, the Legislature’s hands were forced to sign two key amendments in 1995, which prohibited MUA and updated the scope of chiropractic practice to read, “Nonsurgical, nonincisive procedures, including but not limited to adjustment and manipulation, in order to improve the subluxation complex or the biomechanics of the musculoskeletal system,” and excluding “incisive or surgical procedures’ from the scope of chiropractic practice.” Thereby, prohibiting making an incision into the body for ANY reason, including the use of a needle for the purpose of drawing blood for diagnostic testing. (See Act of May 29, 1995, 74th Leg., R.S., ch. 965, §§ 13, 18, 1995 Tex. Gen. Laws 4789, 4802–03.)

Interestingly, this led to amending the statutory definition of acupuncture, which had previously been “the insertion of an acupuncture needle,” to read, “The nonsurgical, nonincisive insertion of an acupuncture needle.” (See Act of May 28, 1997, 75th Leg., R.S., ch. 1170, § 1, 1997 Tex. Gen. Laws 4418).

Ultimately, by describing the use of acupuncture needles as “nonsurgical and nonincisive,” Texas DCs were given the legal sanction to conduct acupuncture at will. However, as stated by the TBCE in the more recent 2012 case titled, “Board of Chiropractic Examiners, Glenn Parker, Executive Director, and Texas Chiropractic Association, Appellants v. Texas Medical Association, Texas Medical Board, and the State of Texas, Appellees,”

The broader underlying disagreement concerning the use of needles in chiropractic remained, as did the controversy regarding whether chiropractors could perform MUA. However, due in part to the advisory nature of the administrative pronouncements and related jurisdictional and procedural limitations, the controversies eluded judicial resolution for several years.

Subsequently, this disagreement led the Legislature to revisit out-of-scope concerns in TBCE’s 2005 Sunset Review. Interestingly, although the 2004 TBCE staff report explicitly states their opinions of disputed practices within scope, the Sunset Advisory Commission review did not directly address these contentions.

Subsequently, the Legislature adopted vague language mandating that DCs cannot engage in “surgical procedures,” as described in the surgery section of the common procedure coding system as described by the Centers for Medicare and Medicaid Services. Additionally, the Legislature also mandated that the TBCE adopt their own rules to clarify what activities are in- and out-of-scope. (See Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 1, 2005 Tex. Gen. Laws 3464, 3465 & § 8, 2005 Tex. Gen. Laws at 3466).

As expected, the TBCE took full advantage of the Legislature’s mandate and initiated a “Scope of Practice” rule permitting Texas DCs to perform both MUA and needle EMG. (See 22 Tex. Admin. Code § 75.17). This is how the past several years has panned out:

• June 2006 – TBCE officially included acupuncture into the scope.
• July 2009 – TBCE adopts a 100-hour certification requirement to practice acupuncture.
• February 2010 – An official “specialty” in acupuncture is proposed after completing 300 hours of training.
• May 2010 – After receiving significant opposition from the TAAOM because of the “meager” training to gain specialist status, TBCE tables its specialty rule. Some of the pressure TBCE received included a 2,000 signature petition representing “the concern, and even outrage, of licensed acupuncturists, educators, students, patients from all walks of life (including patients of chiropractic) and the Chinese community.”
• May 2012 – Bill Decken, Chairman of the International Federation of Chiropractors and Organizations (IFCO), writes an official declaration that the IFCO is adamantly against implementing an acupuncture specialty under the auspices of a chiropractic license.
• July 2012 – During an eventful roundtable including TBCE and acupuncture stakeholders, the stakeholders make a convincing argument against passing the rule that chiropractors could be acupuncture specialists after a “minimal number of hours and training and no clinical component.”
• August 2012 – After receiving significant pressure from key stakeholders and Legislature, TBCE tables its proposed specialty ruling in neurology and nutrition.
• December 2012 – An amendment to Rule 75.21 was proposed, which clarifies the scope to include acupuncture.
• February 2013 – TAAOM President Wally Dogget deliveres a public testimony opposing the proposed changed to Rule 75.21.
• February 2013 – TBCE openly dismisses TAOOM’s opposition, but postpones adopting the rule change.
• May 2013 – TBCE adopts amendment to Rule 75.21.
• May 2013 – Texas State Board of Acupuncture Examiners (TSBAE) sends a request to Attorney General for support.
• February 2014 – TAAOM files suit against TBCE.

According to the TAAOM Facebook page:

It's official: TAAOM has sued the Texas Board of Chiropractic Examiners. We are seeking a declaratory judgment in District Court, challenging their statutory authority to allow, and attempt to regulate, the practice of acupuncture by chiropractors. Frankly, this is the most significant undertaking by TAAOM in Texas since gaining legal status for acupuncture some 20 years ago. If you are not a member, now's the time. More info to come. We will be doing some serious fundraising in the weeks and months ahead.

IFCO Speaks Out

At this point, subluxation-based chiropractors are encouraged to support the TAAOM and stand up against the TBCE like IFCO member Gary Brettman, DC. On a post he wrote in response to the above TAAOM Facebook announcement, Brettman states:

Gary Brettmann As the only chiropractor who stood up against the TBCE support of the "Diplomat" status for acupuncture for chiropractors in 2012, You know I support your efforts. All the DC's I know who want specialty in Acupuncture state that if DC's want this they should hold dual licensure, I fully agree. There's no need for a DC to use anything other than specific Chiropractic adjustment to correct vertebral subluxation. When the Chiropractor addresses 'medical conditions' with Chiropractic, he/she is practicing outside their scope of practice. I've been told by a few young DC's 'certified' in Acupuncture (100hrs) that they couldn't do Chiropractic under an Acupuncture licenses, but can do Acupuncture under Chiropractic. I told them it isn't right if they want to do Acupuncture they need to get licensed by Acupuncture board.

And Brettman is in good company. In a recent statement written in response to the TBCE’s scope expansion, International Federation of Chiropractors and Organizations (IFCO) President Shane Walker, DC writes,

The introduction of acupuncture into the chiropractic scope of practice is a blurring of professional boundaries that in combination with other allopathic modalities dirties our separate and distinct status that the profession has worked so hard to obtain."

The American Chiropractic Association and International Chiropractic Association have not spoken out about this issue in Texas. the IFCO continues to support chiropractic principles and fights against scope expansion and the medicalization of chiropractic through primary care and drugs. Show your support and join the IFCO today.

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