Law Feature - June 2009
Tex Med. 2009;105(6):27-30.
By Crystal Conde
The Texas Medical Association and podiatrists are locked in a lengthy scope-of-practice battle that started over the definition of the foot. Physicians, who went to medical school, have one definition; podiatrists, who didn't, have another.
Back in 2001, the Texas State Board of Podiatric Medical Examiners adopted rules that defined the ankle as part of the foot. At that time, TMA and the Texas Orthopaedic Association (TOA) objected to the rules, which defined the foot as "the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons, ligaments, and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes."
TMA and TOA sued the board and the Texas Podiatric Medical Association in 2002, contending that the board's change in definition illegally expanded podiatrists' scope of practice. Then-Texas Attorney General John Cornyn agreed and issued an opinion that the podiatry board acted outside its authority. He added that only the Texas Legislature has the power to establish or change the scope of practice for podiatrists, physicians, or any other health care practitioners.
David Teuscher, MD, a Beaumont orthopedic surgeon, says former Attorney General Cornyn got it right. In an affidavit to the Texas Supreme Court, Dr. Teuscher underscores the limits to podiatric practice.
"The statute regulating podiatry limits the Texas State Board of Podiatric Medical Examiners to testing and qualification of podiatrists on diagnosis and treatment of ailments of the foot only. As an undisputed matter of anatomy, the human foot includes only bones or tissues below but not including the ankle joint," he wrote.
The case has been ongoing for seven years, and the journey to this point has been a long one. At press time, the Supreme Court of Texas had not determined whether it would hear the case.
A Lengthy Battle
In August 2005, an Austin district judge ruled in favor of the podiatrists. TMA and TOA took the case to the Third Court of Appeals, and in 2008, it reversed the trial judge's decision, siding with TMA and TOA.
The podiatry board then asked for a rehearing, and the appeals court once again found the rule defining the ankle as part of the foot invalid. The appeals court justices said it is up to the legislature to decide whether podiatrists should be allowed to treat other anatomical systems that interact with and affect the foot.
TMA agrees with that position. It maintains that expanding the scope of podiatry requires an amendment to the Podiatry Act, which is the state law governing the podiatric medical treatment and diagnosis of diseases and disorders of the human foot.
The podiatry board and association have appealed the Third Court's decision to the Supreme Court of Texas.
Robert P. Taylor, DPM, president of the Texas Podiatric Medical Association, says his organization and the podiatry board don't consider the 2001 rule change an expansion of scope of practice.
"We believe the action of the board was done to give a clear definition of the contemporary practice of podiatric surgery and medicine to the citizens, hospitals, and insurance companies of Texas," he said.
At the beginning of this year, the Texas State Board of Podiatric Medical Examiners published in the Texas Register a new administrative rule that proposed striking the original definition of foot and in its place adding an amendment that would potentially expand podiatrists' scope even further. The proposed rule would allow podiatrists to perform surgical and nonsurgical procedures on the bones and tissues of the lower leg below the knee cap, including "fractures that extend into the ankle joint."
Susan Henricks, JD, an attorney representing TMA and TOA, says the podiatry board and podiatry association told the Supreme Court that repealing the old rule and adopting the new one would moot the question of the validity of the old rule.
"Our problem with that is that the new rule, in our opinion, has substantially the same effect as the old rule. Even though it's different language, in our view, it's the same rule in the sense that we believe it's inconsistent with the statute that defines the practice of podiatry," she said.
In a letter to the podiatry board, TMA requested the proposed changes not be adopted. "These types of injuries are among the most challenging to optimally treat, requiring the utmost skill and experience found among highly trained and experienced board certified orthopedic surgeons," the letter stated.
At a March meeting, the podiatry board didn't repeal the original rule. Instead, it voted to revise the new proposed rule and referred it back to its Rules Committee.
TMA strongly advocates for the safety of patients and believes that any individual making a mental or medical diagnosis should be appropriately educated, trained, and licensed to provide such care.
The association has been blocking attempts by nonphysician health professionals that would allow them to practice medicine without going to medical school.
Patient Safety First
A single high standard of care delivered by a well-trained team of professionals under the supervision of a physician and centered on each patient's needs is a TMA priority. Physician members of the association say the legal battle with the podiatry board isn't just a matter of law, but also is a patient health and safety concern.
"I'm most concerned that the overwhelming majority, if not all Texas podiatrists, haven't been qualified through training or board certified to a level equal to a board-certified orthopedic surgeon to treat the human body at or above the ankle joint," Dr. Teuscher said.
He emphasizes that the "unsuspecting public" could potentially be harmed when health care practitioners with limited training exceed their professional abilities.
Ms. Henricks says some podiatrists have a license in podiatry but no advanced training, raising concern about their ability to carry out safely some of the procedures they want to be able to perform.
According to Dr. Teuscher, the training programs available to podiatry graduates are inconsistent. For example, the focus of residency programs varies; some concentrate on medical training, some on nonsurgical orthopedic concerns, and some on surgery.
And as Dr. Taylor points out, some, but not all, podiatrists leave residency training having completed a significant number of procedures on the lower leg and ankle joint.
"Not all podiatrists want to do those procedures [of the lower leg and ankle joint]," he said. "But the ones who are trained to do so are requesting to do those procedures."
Dr. Teuscher says the podiatry board should require more rigorous, uniform training of its constituents across the board and should concentrate its efforts on patient safety.
"The podiatry board needs to focus on whether its licensees are acting in a safe and professional manner and not worry about promoting and expanding the scope of practice of podiatry to new areas," he said.
The dispute over scope of practice with podiatrists is a lesson in human nature, according to Bruce Malone, MD, an Austin orthopedic surgeon and past member of TMA's Board of Trustees.
"You want to be able to do things, but you don't want to go through the hard work it takes to do them," he said. "I'd love to be a pilot, but I haven't undergone the training. If I try to fly a plane without the appropriate training, I'll die and probably others on the ground will, too."
He contends the lawsuit also touches on the issue of economics and business competition. He says podiatrists want to expand the procedures they are able to do in order to earn extra income.
Dr. Teuscher agrees.
"It's about business and competition for them [podiatrists]. They don't want to have to go to medical school and take an orthopedic surgical residency to treat the complex conditions of the ankle and leg," Dr. Teuscher said. "They don't want to have to meet the same standard of education, training, and certification as medical doctors, and they want to legislate through a regulatory agency."
According to Dr. Taylor, the podiatry board and podiatry association are willing to work through the legislature to accomplish their goal. For the past four sessions, he says, members of the legislature have been reluctant to get involved with what they see as a "turf battle" between medical doctors and podiatrists.
"And they [legislators] definitely don't want to get involved when a case is pending in the Supreme Court," he said. "We've been told for the past eight years that they want to see legislation brought to them that both sides agree on."
Scope War Nothing New
Scope of practice has been one of TMA's hot-button issues for years. Currently, TMA is also involved in litigation against the Texas Board of Chiropractic Examiners and the Texas State Board of Examiners of Marriage and Family Therapists.
Last year, 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 diagnoses, TMA asserted.
The LCDC Program, part of the Professional Licensing and Certification Unit, Division of Regulatory Services of the Department of State Health Services, had proposed a rule under "Scope of Practice" that would have 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."
The battle with the chiropractic board is a different story.
When the board didn't back down in its effort to expand chiropractors' scope of practice, TMA filed suit in 2006. TMA asked a Travis County district court to invalidate the board's rules that would permit chiropractors to perform clinical needle electromyography - a diagnostic procedure - and spinal manipulation under anesthesia - a surgical procedure - because both procedures constitute the clinical and legal practice of medicine. Both procedures can cause serious patient injuries if improperly performed by unqualified practitioners, TMA maintains.
In 2007, the Texas Medical Board joined as a party in the lawsuit. The case will likely go to trial this year.
TMA's lawsuit against the Texas State Board of Examiners of Marriage and Family Therapists centers on the board's attempt to allow its therapists to diagnose medical conditions. TMA went to court after the board adopted rules last year to that effect.
TMA says in the suit 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.
TMA asked the court to declare the board's rule invalid and to prohibit the board from enforcing it. The suit is pending in Travis County District Court.
And this past legislative session, TMA backed Senate Bill 532 by Sen. Dan Patrick (R-Houston), which ensures physicians maintain supervision and accountability of physician assistants and/or advanced practice nurses in retail health clinics. At press time, the Senate had unanimously passed the bill but the House had not yet acted.
Nonphysician practitioners' infringement on the practice of medicine worries Dr. Malone, who says it's essential that physicians fight to uphold their autonomy, which the Medical Practice Act confers upon them.
"Diagnosis is what doctors have the ability to do alone," he said. "If we give that up, things change dramatically."
Dr. Malone adds that allied health care professionals are valuable members of the health care team but must be supervised by qualified physicians to ensure high-quality patient care.
As the Texas Supreme Court decides whether it will hear TMA and TOA's case against the podiatry board and association, Dr. Taylor says both organizations are preparing to file briefs on the merits of the case.
"Our organization remains ready for honest negotiations to come to some kind of resolution on this. The legislative agenda and mission statement of our organization are similar to those of TMA. It's this one issue of scope where we differ greatly. We could be working together instead of fighting," Dr. Taylor said.
Dr. Teuscher says he hopes for a final ruling from the Supreme Court by the end of this year.
"If our side prevails, what will happen next is that all these credentialing bodies that have prematurely granted podiatrists consent to do ankle and leg procedures will have to reevaluate whether they did that in a manner consistent with state law," Dr. Teuscher said.
Crystal Conde can be reached at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by e-mail at Crystal Conde .
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