TMA Defends Patients' Safety, Physicians' Authority
Cover Story – April 2011
Tex Med. 2011;107(4):20-26.
By Crystal Conde
The Texas Medical Association is fending off attacks on the practice of medicine by nonphysician practitioners who want to expand their scope of practice and diagnose and treat patients without going to medical school. Most recently, TMA went to court to protect patients, filing another lawsuit against the Texas Board of Chiropractic Examiners (TBCE).
On Jan. 31, TMA sued TBCE to challenge its rule allowing chiropractors who meet certain educational and training criteria to perform vestibular-ocular-nystagmus (VON) testing.
TMA emphasizes in the lawsuit that allowing some chiropractors to perform the testing puts Texans' health in danger and that the diagnostic test is outside chiropractors' scope, because "the eyes and ears are not part of the spine or musculoskeletal system of the human body."
It is the second time in five years that TMA has taken the chiropractors to court. The first suit challenged the chiropractic board's rules on diagnosis, needle electromyography (EMG), and spinal manipulation under anesthesia (MUA).
James V. Kemper, MD, frequently performs VON testing in his Austin otolaryngology practice and says physicians use the test to diagnose problems of the brain, inner ear, or eyes. Symptoms of dizziness, imbalance, and vertigo often prompt such testing, frequently requiring medications that can be prescribed only by a medical doctor, he says.
Dr. Kemper, who signed an affidavit to support TMA's position in the lawsuit, adds that health care professionals wishing to expand into another branch or subspecialty of health care have, at the very least, a moral and ethical obligation to be able to meet the standards of care within the specialty.
"Unless the practitioner has a comprehensive understanding of how to interpret a particular test and is skilled at managing possible complications from the diagnostic procedure and can discern what further diagnostics are indicated, that practitioner is jeopardizing the standard of care due the patient," he said.
TMA President Susan Rudd Bailey, MD, also signed an affidavit in the lawsuit. Dr. Bailey says TMA's dispute with the chiropractic board over scope of practice focuses on patient safety.
"TMA believes very strongly that chiropractic care isn't the same as primary care and that chiropractors aren't trained to be medical doctors," she said.
TMA maintains that expanding chiropractors' scope of practice requires the legislature to amend the Texas Chiropractic Act, which defines what the practice of chiropractic may include in Texas.
Besides suing the chiropractic board, TMA also has been involved in a lawsuit with the Texas State Board of Examiners of Marriage and Family Therapists since 2008 over that board's attempt to allow therapists to diagnose medical conditions. (See "Scope of Practice Familiar Territory for TMA.")
Additionally, TMA's ongoing negotiations with the Texas Podiatric Medical Association to draft agreed-upon scope-of-practice legislation to take to lawmakers this session are at a stalemate. (See "TMA Still Toe-to-Toe With Podiatrists.")
The scope-of-practice battles, of course, go beyond the courtroom. Allied health care professionals filed several bills in this legislative session aimed at increasing their authority to practice.
TMA President-Elect C. Bruce Malone, MD, an Austin orthopedic surgeon, believes TMA will prevail in its lawsuit against TBCE because physicians "have science on their side."
"The lawsuits TMA has been involved in with the chiropractic and podiatry boards are in the best interests of TMA's members and the patients of Texas. The Medical Practice Act needs to be maintained. TMA believes if you want to be a physician, go to medical school," he said.
"The position TMA has taken is that chiropractors by law are restricted to an analysis, examination, and evaluation of the biomechanical condition of the spine and musculoskeletal system," said David Bragg, JD, outside counsel for TMA in the litigation with the chiropractic board. "Vestibular-ocular-nystagmus testing is unrelated to those systems in the body, and it goes beyond the scope of chiropractic."
TBCE Executive Director Glenn Parker didn't comment on TMA's latest lawsuit against the board. However, in a series of e-mails TMA obtained through the Open Records Act, Mr. Parker told the board it must work with the legislature to change the law, not try to expand chiropractors' scope of practice through rulemaking.
Testing Dangerous if Unqualified
Before the lawsuit, Dr. Bailey wrote Mr. Parker in July that VON testing "should not be performed by chiropractors whatsoever, regardless of any additional chiropractic education or training they may obtain pertaining to the test."
TBCE didn't heed Dr. Bailey's comments. The Texas Register published the rule Oct. 22, and it took effect Oct. 27.
The adopted rule 75.17(c)(3) declares that VON testing "may be performed by a licensee with a diplomate in chiropractic neurology and that has successfully completed 150 hours of clinical and didactic training in the technical and professional components of the procedures as part of coursework in vestibular rehabilitation including the successful completion of a written and performance examination for vestibular specialty or certification. The professional component of these procedures may not be delegated to a technician and must be directly performed by a qualified licensee."
The chiropractic board's proposed rules are posted online.
Dr. Kemper says chiropractic training does not include education in differential diagnosis related to electronystagmography (ENG) and VON testing. ENG is a group of eye-movement tests that look for signs of vestibular dysfunction or neurological problems by measuring nystagmus, an involuntary side-to-side eye movement. Physicians commonly conduct ENG tests on patients with dizziness, vertigo, and/or balance disorders.
"A normal ENG or VON test does not exclude the possibility of a vestibular or central nervous system lesion or disorder. Depending on the patient's symptoms and physical findings, magnetic resonance imaging, CT scan, or other diagnostic exams may be imperative to discover what may be a serious neoplastic or other disorder of the nervous system. Chiropractors are not trained to diagnose or treat any of these disorders," Dr. Kemper said.
Sara Austin, MD, an Austin neurologist and member of TMA's Council on Legislation, testified at a TBCE meeting on VON testing last year.
"A correct diagnosis must be made rapidly because dizziness, vertigo, and imbalance can be caused by something as benign as a viral infection of the inner ear or by something as ominous as a brain tumor or an impending brain stem stroke," she said.
Dr. Austin adds that both of TMA's lawsuits on scope of practice are important.
"Patients assume that if a health care practitioner advertises or is allowed to do a certain test or procedure, he or she is competent to do that test or procedure," she said.
A recent survey by the American Medical Association shows patients want physicians in charge of their medical care, but they're confused about health professionals' qualifications.
Dr. Austin calls on TBCE to make sure chiropractors receive adequate education and training.
"Physicians are the safety net, providing the care only someone with our education, training, and proven expertise can render. Physicians are the lifeguards for patients swimming in a sea of limited health care practitioners," she said.
David Teuscher, MD, a Beaumont orthopedic surgeon and member of the TMA Board of Trustees, says the results of an abnormal VON test require patient evaluation by a physician such as an ear, nose, and throat specialist or a neurologist.
"If pathology is missed, patients could be harmed. If a false-positive is interpreted, patients without pathology could be subjected to unnecessary testing or procedures," Dr. Teuscher said.
EMG, MUA Case on Appeal
TMA sued the chiropractic board in 2006 to block its rules on MUA, EMG, and diagnosis because, the association said, they constitute the clinical and legal practice of medicine. Last summer, Austin State District Judge Stephen Yelenosky declared the rules invalid.
Mr. Parker subsequently released a statement that the ruling affected only certain sections of the board's rules on diagnosis. "The board's interpretation of its scope-of-practice rule in light of this judgment is that doctors of chiropractic retain the authority to diagnose a patient's condition and to bill under diagnostic codes," the statement said.
TBCE and the Texas Chiropractic Association (TCA) appealed the ruling to an Austin appeals court, but a hearing had not been scheduled at press time.
Mr. Bragg says allowing chiropractors to diagnose medical conditions has patient safety implications.
"The scope-of-practice rule the chiropractic board developed authorized chiropractors in Texas to diagnose a whole host of medical conditions that they can't treat. The rule was so broad chiropractors could diagnose cancers, muscular dystrophy, and even Lou Gehrig's disease. We [TMA] don't think chiropractors have any business doing this," Mr. Bragg said.
"In my opinion, the driving force behind many of the board's rules is a desire by chiropractors to become primary care doctors. That's why they're making a concerted effort to get closer and closer to the practice of medicine," he said.
Open Records Revealing
On Aug. 24, 2010, TMA asked TBCE for copies of all policy statements, interpretations of the law or rules, or e-mails relating to scope of practice for chiropractors, including but not limited to laser fat removal, diagnosis, and treatment of diabetes and thyroid disorders, or the advertising for these conditions since Jan. 1, 2010.
TMA asked for the information after last year's TBCE meeting on VON testing. A TMA attorney attended the meeting and said that when the issue of scope came up, a board member instructed anyone with comments on scope to forward them to a designated board member, rather than circulate the comments to all board members, to avoid the requirements of open meetings.
The board turned over the information that TMA requested only after Attorney General Greg Abbott ruled that it must do so.
As a result, TMA obtained eye-opening e-mails from Mr. Parker, in which he wrote on March 3, 2010, that "[The board is] not ultimately free to define fully what chiropractic is or is not in Texas … The Board cannot unilaterally go beyond the statute."
Further, he wrote, the Chiropractic Act "does not say anything about the circulatory system, the central nervous system, the endocrine system, the immune system, the lymphatic system, the digestive system, etc."
When discussing EMG and MUA with past TBCE Board President Kenneth Perkins, DC, Mr. Parker explained the board is "losing on MUA because of how our statute defines surgery … We are losing on Needle EMG because of how the courts (and the Attorney General) consistently interpret the statutory reference to needles being surgery except for drawing blood." In addition, he wrote, the procedures are "contrary to statute … as long as the courts continue to interpret the reference to needles in the same way."
Mr. Parker reiterated the board must "work with TCA to get the statute changed by the legislature."
Scope of Practice in the Legislature
Allied health professionals have been busy filing legislation to expand their scope of practice. At press time, two bills related to the scope of advanced practice registered nurses had been filed.
In January, Rep. Kelly Hancock (R-North Richland Hills) filed House Bill 708. The bill allows advanced practice registered nurses, nurse practitioners, nurse anesthetists, and clinical nurse specialists to prescribe, diagnose, and order therapeutic care without physician supervision. It stipulates that an advanced practice registered nurse may prescribe, procure, administer, and dispense dangerous drugs and controlled substances, too. They would be supervised by the Texas Board of Nursing.
Similarly, HB 915 by Rep. Wayne Christian (R-Nacogdoches) grants authority to advanced practice registered nurses to make medical diagnoses and to prescribe and order prescription drugs and devices.
Also at press time, Rep. Craig Eiland (D-Galveston) had filed HB 637. It authorizes physical therapists to treat patients without a physician referral.
TMA's 2011 scope-of-practice platform seeks to:
- Prevent any efforts to expand scope of practice beyond that safely permitted by nonphysician practitioners' education, training, and skills.
- Defend a single standard of care, the physician's role as leader of the health care team, and the physician's ability to delegate responsibility to supervise medical care for patients.
- Support licensure efforts by nonphysician practitioners when it improves patient care, when the practitioners have appropriate training, and when there is appropriate linkage to the Texas Medical Board for regulatory oversight.
Not every scope-of-practice bill that has been filed is a point of contention among physicians, however. TMA supports Senate Bill 188, known as the Licensed Genetic Counselor Act, by Sen. Jane Nelson (R-Lewisville). The bill defines the practice of genetic counseling and prohibits genetic counselors from practicing medicine and making medical diagnoses. TMA collaborated closely with the Texas Society of Genetic Counselors to draft agreed-upon legislation.
Senator Nelson says she appreciates the input of genetic counselors and physicians on the bill.
"More and more Texans are turning to genetic counselors for information on genetic conditions that could affect their health, and they should have access to properly educated, reliable, and licensed specialists," she said.
Raymond Lewandowski, MD, who specializes in medical genetics in Corpus Christi, worked with the Texas Society of Genetic Counselors to develop approved language for SB 188.
"The Texas Medical Association has taken the position that counselors may be independent practitioners but have to be affiliated with a physician of an appropriate specialty and have to work on referral from a physician," he said.
The collaboration between TMA and genetic counselors to craft agreed-upon legislation is beneficial to both physicians and patients. Dr. Lewandowski says working together was pivotal to the effort's success.
"The genetic counselors were open to interacting with the appropriate agencies to get feedback about potential obstacles and to make some concessions pertaining to what they wanted to accomplish," Dr. Lewandowski said. "The genetic counselors established contacts and opened the dialogue. They did not just introduce a bill without any discussion with physicians."
Dr. Teuscher urges physicians to support TMA in its effort to thwart nonphysicians' efforts to expand their scope of practice and to voice their opposition to these efforts. He suggests physicians talk to their legislators about the risks to patient safety when health professionals attempt to practice medicine without going to medical school and completing a residency.
Additionally, he encourages physicians to attend First Tuesdays at the Capitol to voice their opposition to unsafe expansion of scope of practice by nonphysician health care practitioners. The next First Tuesdays event is May 3. To register, click here.
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail.
Scope of Practice Familiar Territory for TMA
For years, TMA has been blocking attempts by nonphysician health professionals to practice medicine without going to medical school. Scope of practice consistently has been one of TMA's hot-button issues.
In 2008, TMA persuaded the state's Licensed Chemical Dependency Counselor (LCDC) Program not to allow counselors to diagnose substance disorders. State law allows only properly trained physicians to make such medical diagnoses, TMA said.
The LCDC Program had proposed a rule under "Scope of Practice" that permitted chemical dependency counselors to "diagnose substance disorders, but anything other than a mental health diagnostic impression [was required to] be determined by a qualified professional."
TMA objected because "the proposed rule would expressly permit LCDCs to engage in the practice of medicine by making a medical diagnosis."
Currently, the association is in litigation against the Texas State Board of Examiners of Marriage and Family Therapists.
TMA's lawsuit against the marriage and family therapists centers on the board's attempt to allow therapists to diagnose medical conditions. TMA went to court after the board adopted rules to that effect in 2008.
TMA says in its lawsuit that "because marriage and family therapists are neither licensed nor trained to practice medicine," giving them the ability to diagnose mental and physical conditions would diminish the quality and standards of the practice of medicine. The suit is pending in Travis County District Court after TMA asked the court to declare the board's rule invalid and to prohibit the board from enforcing it.
Meanwhile, negotiations continue with the board to determine if the rule can be modified in a way that TMA could accept.
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TMA Still Toe-to-Toe With Podiatrists
Last year, TMA and the Texas Orthopaedic Association (TOA) prevailed in an eight-year legal battle stemming from podiatrists' definition of the foot. (See "Foot Fight," October 2010 Texas Medicine, pages 20-24.) Since 2002, TMA and TOA had been locked in litigation with the Texas State Board of Podiatric Medical Examiners and the Texas Podiatric Medical Association over podiatrists' scope of practice.
The case concluded in August, when the Texas Supreme Court again decided not to review a lower court ruling that rejected the podiatry board's rule allowing podiatrists to treat ankle injuries.
Throughout the case, TMA maintained that expanding the scope of podiatry requires an amendment to the Podiatry Act, the state law governing the podiatric medical treatment and diagnosis of diseases and disorders of the human foot.
TMA has been attempting, to no avail, to draft scope-of-practice legislation with input from the Texas Podiatric Medical Association to take to lawmakers this session.
According to Susan Henricks, JD, the attorney who represented TMA and TOA in the case, negotiations are at an impasse. She says the main issue preventing TMA and the podiatry association from agreeing on draft bill language is the effect of any expanded scope on podiatrists who have not completed a three-year residency but who have obtained privileges for ankle procedures based on the now-invalid rule passed in 2001.
According to David Teuscher, MD, a Beaumont orthopedic surgeon and member of the TMA Board of Trustees, the podiatry association was unwilling to consider anatomic expansion of scope of practice for a select group of colleagues based on objective criteria, such as the level of residency training and the higher level of time-limited board certification.
"There is a wide range in the level of training, certification, and qualifications of podiatrists in Texas. They [Texas Podiatric Medical Association] insisted that all Texas podiatrists – regardless of qualifications – who managed to gain privileges beyond the foot retain those. The podiatry association adopted the slogan 'no podiatrist left behind,' creating an unhealthy environment after a year of mediation," he said.
Ms. Henricks says she doesn't expect the podiatry board and association to sue in this matter and is unaware of any plans by the podiatry association to file legislation related to scope of practice.
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