Scope Whac-A-Mole

Expansion Attempts Keep Popping Up

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Cover Story – October 2012 



Tex Med. 2012;108(10):16-22.



By Crystal Conde 
Associate Editor  

When Sara Austin, MD, performs needle electromyography (EMG) in her Austin neurology practice, she inserts an electrode into a patient's muscles to find the cause of neuromuscular diseases ranging from carpal tunnel syndrome to Lou Gehrig's disease. The results of this diagnostic test allow her to determine whether the patient needs surgery or further testing or has a disability.

She knows what she's doing because she's been thoroughly trained.

"Performing EMG is extremely difficult and requires a lot of training. An incorrect diagnosis can harm patients by resulting in delayed or inappropriate treatment and diminished quality of life," Dr. Austin said.

EMG took center stage, along with manipulation under anesthesia (MUA), in 2006 when the Texas Medical Association sued to invalidate the Texas Board of Chiropractic Examiners' (TBCE's) rules permitting chiropractors to make diagnoses and to perform EMG and MUA.

An appellate court determined earlier this year Texas chiropractors may not perform EMG or MUA, a decision that supports arguments from TMA and the Texas Medical Board (TMB) that the chiropractic board exceeded its legal authority when it adopted the rules. However, the appeals court justices ruled the "diagnosis" of "biomechanical conditions of the spine or musculoskeletal system" is within chiropractors' scope of practice. TMA asked the Texas Supreme Court in August to reverse the ruling on diagnosis. A decision was pending at press time.

Scope-of-practice expansion attempts have long been a point of contention between TMA and some nonphysician practitioners (NPPs). The association doesn't oppose scope expansion outright, however. TMA will consider NPPs' licensure expansion efforts when they improve patient care and adhere to safety guidelines, when they have appropriate training, when a physician remains the supervisor of the health care team, and when TMB provides appropriate regulatory oversight. TMA works to prevent scope expansion efforts beyond what NPPs' education, training, and skills safely permit.

Additionally, TMA has always maintained that expanding chiropractors' or any other practitioner group's scope of practice requires legislative action to amend state laws governing licensees in Texas. It is not something the regulatory boards can do on their own.

TBCE Executive Director Yvette Yarbrough says her board is "very aware that any expansion of scope of practice must be done through the legislature," adding that "any perception that the board is currently attempting to circumvent legislation is not accurate. On the contrary, my personal observation is that the current board is very diligent in adherence to the Texas Occupations Code."

David Teuscher, MD, a Beaumont orthopedic surgeon and a member of the TMA Board of Trustees, sees it differently.

"The public views physicians as the captain of the medical team. As long as we're protecting patients, we're doing what's right for Texas. We have to ensure unqualified people aren't harming patients by performing tests and treatments they're not trained to do," he said.

"Chiropractic Neurology" Dropped

Dr. Austin is an outspoken opponent of inappropriate scope-of-practice expansion by chiropractors. As a member of the TMA Council on Legislation, she testified for the association at a TBCE meeting in opposition to scope expansion rules and before the 2011 legislature against a bill that would have expanded scope of practice for chiropractors and other health care practitioners.

But TBCE's most recent proposed rules recognizing "chiropractic neurology" as a specialty concerned Dr. Austin.

She worried that the use of the title by chiropractors could confuse patients who already have a difficult time discerning among health care professionals' qualifications.

A 2010 American Medical Association Truth in Advertising survey that revealed that 68 percent of respondents thought a podiatrist is a medical doctor validates her concern. Fifty-four percent answered that optometrists are medical doctors, and 41 percent said psychologists are medical doctors.

However, the board voted Aug. 16 not to adopt the rules in the face of opposition from organized medicine and legislators.

TMA asked TBCE to withdraw them because they "mislead, confuse, and even defraud the public."

TMA President Michael E. Speer, MD, outlined two primary concerns in a letter to Ms. Yarbrough: "First, 'neurology' connotes the practice of medicine," he wrote. "If TBCE recognizes 'chiropractic neurology' as a specialty, it will confuse, deceive, and potentially injure the public. Second, neurology is beyond the lawful scope of practice of chiropractic in Texas, so a 'chiropractic neurology' specialty is inappropriate."

Rep. John Zerwas, MD (R-Simonton), Sen. Jane Nelson (R-Flower Mound), Sen. Bob Deuell, MD (R-Greenville), and Rep. Charles Schwertner, MD (R-Georgetown), all wrote letters asking TBCE to withdraw inappropriate scope expansion rules and to obtain proper stakeholder input when proposing rules in the future.  

TMA wasn't the only organization to oppose the board's proposed rules. American Association of Neuromuscular & Electrodiagnostic Medicine Executive Director Shirlyn Adkins and American Academy of Neurology President Bruce Sigsbee, MD, wrote to TBCE to contest the proposed rules. Like TMA, they say chiropractors' use of the term "chiropractic neurologist" could confuse and mislead patients as to practitioners' qualifications.

David Bragg, TMA's attorney in its litigation against the chiropractic board, says TBCE continues to "push the envelope" by expanding scope of practice through rulemaking.

"Each time the board proposes scope rules, chiropractors tread further into the practice of medicine," he said.

TMA has persuaded the chiropractic board to withdraw disputed scope-of-practice rules in the past. Earlier this year, TBCE attempted to redefine chiropractors' practice rules to include the peripheral nervous system. That would have allowed chiropractors to perform needle EMG or other nerve testing, which the courts already rejected.

The law limits chiropractors to treating the biomechanical condition of the spine and musculoskeletal system. The proposed rules also would have permitted chiropractors to perform video fluoroscopy and "dry needle" treatment. The chiropractic board withdrew the rules in February after facing stiff opposition from TMA.

TMA and the chiropractic board have a history of litigation. TMA prevailed in its lawsuit over TBCE rules that allowed vestibular-ocular-nystagmus (VON) testing by chiropractors. TMA sued the board in early 2011 and emphasized to the court that allowing some chiropractors to perform the VON 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."

The trial court sided with TMA, but TBCE appealed the decision. In July, TMA asked the Third Court of Appeals to uphold the trial court ruling, saying in part that: 

  • The vestibular system isn't part of the spine or musculoskeletal system;
  • The vestibular testing rules unlawfully authorize chiropractors to practice medicine; and
  • The Chiropractic Act doesn't authorize chiropractors to make a "differential diagnosis" of a patient's medical condition. 

Ms. Yarbrough declined to comment because the case is on appeal. She did say her goal as TBCE executive director is reducing the scope-of-practice litigation "by not only ensuring that all board actions are in compliance with the Texas Occupations Code and other statutes but also by encouraging more communication between the chiropractic and allopathic communities."

"I believe that some of the concepts involved in chiropractic have not historically been accepted or understood in the allopathic community, leading to misunderstandings about the board's actions regarding scope of practice. There has also been a lack of acceptance regarding the ability of doctors of chiropractic to diagnose, even within the chiropractic scope of practice, leading to prolonged litigation," she said. 

Scope Litigation Nothing New

Besides chiropractors, TMA has taken podiatrists and marriage counselors to court. Dr. Teuscher describes the association's ongoing scope-of-practice litigation as a game of Whac-A-Mole.

"Just when you think you've addressed one agency that's trying to expand scope for its licensees, another one pops up doing the same thing," he said.

TMA's lawsuit with the Texas State Board of Examiners of Marriage and Family Therapists (TSBMFT) began in 2008 when the board attempted to allow therapists to diagnose medical conditions.

TMA's lawsuit contends 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 a Travis County District Court judge to declare the board's rule invalid and to prohibit the board from enforcing it.

TSBMFT, joined by the Texas Association for Marriage and Family Therapists, claims the board's rules authorizing marriage and family therapists to diagnose "are reasonable and consistent with the statutory scope of practice." They contend that therapists "have been exercising the authority to diagnose in this state for at least 18 years with no known complaints."

According to the board, "Law, public policy, and common sense all dictate that MFTs should be allowed to continue doing so."

Mr. Bragg anticipates the trial court judge will hear arguments in the case in early October.

TMA also has clashed previously in the courts with the Texas State Board of Podiatric Medical Examiners and the Texas Podiatric Medical Association (TPMA) over the scope of practice of podiatrists.

In 2010, TMA and the Texas Orthopaedic Association (TOA) won their eight-year legal battle with podiatrists stemming from their definition of the foot. (See "Foot Fight," October 2010 Texas Medicine, pages 20-24.) Throughout the case, TMA maintained that expanding the scope of podiatry requires amending the Podiatry Act, the state law governing the podiatric medical treatment and diagnosis of diseases and disorders of the human foot.

Dr. Teuscher says the ruling in TMA's lawsuit against the podiatrists sent a message that state agencies need legislative authority to expand scope.

"Unfortunately, the court decision hasn't deterred other agencies from trying to expand scope through the back door via rulemaking. Agreed-to legislation formulated with input from TMA is essential if NPP organizations want to succeed in lawfully and safely expanding their scope of practice," Dr. Teuscher said.

Shortcuts Not Allowed

NPPs were busy filing legislation to expand their scope of practice in 2011.

Rep. Kelly Hancock (R-North Richland Hills) filed House Bill 708, which allowed advanced practice registered nurses, nurse practitioners, nurse anesthetists, and clinical nurse specialists to prescribe, diagnose, and order therapeutic care without physician supervision.

The bill stipulated that an advanced practice registered nurse could prescribe, procure, administer, and dispense dangerous drugs and controlled substances under the supervision of the Texas Board of Nursing.

Similarly, House Bill 915 by Rep. Wayne Christian (R-Nacogdoches) would have granted advanced practice registered nurses the authority to make medical diagnoses and to prescribe and order prescription drugs and devices. (Mr. Christian will not be returning to the legislature next year; he was defeated in the Republican primary in part because organized medicine fought his reelection.)

Rep. Craig Eiland (D-Galveston) filed House Bill 637, which authorized physical therapists to treat patients without a physician referral.

TMA opposed all three bills, which died in the House Committee on Public Health when the legislative session ended.

TMA has met with NPP organizations to draft agreed-upon legislation with mixed results.

"What we've found in some instances is people want to take shortcuts in regard to certification and education or don't want to meet the same standard of patient safety required of physicians," Dr. Teuscher said.

During the 2011 session, TMA attempted, to no avail, to draft scope-of-practice legislation with input from TPMA to take to lawmakers.

In the end, Dr. Teuscher says, the podiatry association was unwilling to consider anatomic expansion of scope of practice for a select group of podiatrists based on objective criteria, such as the level of their 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 [TPMA] 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.

On the other hand, TMA supported House Bill 2098 by Rep. John Davis (R-Houston), which authorizes physicians and physician assistants (PAs) to form corporations for certain purposes. Under the legislation, which Gov. Rick Perry signed last June, physicians can allow a PA to invest in a practice as long as the PA has minority ownership and doesn't exert control over a physician's practice of medicine.

The bill provides regulatory authority under TMB and the Texas Physician Assistant Board over their respective license holders and establishes recordkeeping requirements.

"NPP groups can be most effective at the legislature if they work with us rather than working solely in their personal best interests," Dr. Teuscher said. "TMA has a great relationship with the PAs, and that collaboration can serve as a model for other groups. The PAs try to augment the physician, not serve as a substitute for the physician."

Pay Attention in 2013

Dr. Teuscher urges physicians to support TMA in thwarting NPPs' efforts to expand their scope of practice through rulemaking. 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.

Dr. Austin doesn't foresee scope expansion attempts by chiropractors and other practitioners going away anytime soon. She expects NPP groups to file legislation to that end next session.

"Physicians have a wide range of scope, and other practitioners don't. There's a natural push-pull between the groups. Others want to expand their scope to generate more business," Dr. Austin said.

She encourages her physician colleagues to stay abreast of scope-of-practice efforts during the 2013 legislative session.

"I know all physicians are busy running their medical practices day to day, but we have to pay attention to the legislature. We have to ensure physicians remain the leader of the health care team and utilize NPPs effectively and in a way that enhances safe patient care," she said. (See "Study Group Looks at NPP Delegation.")

TCBE's Ms. Yarbrough says she's not aware of any scope expansion legislation the Texas Chiropractic Association plans to file in the 2013 session.

Mr. Bragg urges physicians to pay attention to who's practicing medicine in their communities.

"Physicians need to be very aware of the fact that there are practitioners out there who are trying to direct patients to themselves instead of to medical doctors. I'd encourage physicians to pay attention to ads and see who in their area is saying they can provide certain kinds of treatment. If a nonphysician practitioner is advertising procedures or treatments they're not qualified to perform, a complaint needs to be made to TMB and to the board for the practitioner's specific specialty."

Dr. Teuscher says TMA will continue to advocate on behalf of Texas physicians and their patients for appropriate statutory limits for NPPs. TMA recognizes that physicians embrace their role as providers and supervisors of care and understand the responsibility and accountability they bear for properly delegated medical acts. The association believes lowering the standard of care doesn't improve access to health care services and calls on NPPs to practice at the highest level of their training and skills but not beyond. (See "NPPs Are Part of the Team.")

TMA anticipates NPP groups will introduce bills during the 2013 legislative session permitting NPPs to practice medicine without earning a medical degree, Dr. Teuscher says. The association will work to support a medical care system that encourages a team-based approach to care while requiring all practitioners to meet appropriate education and training requirements.

 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 email.

All articles in Texas Medicine that mention Texas Medical Association's stance on state legislation are defined as "legislative advertising," according to Texas Govt. Code Ann. §305.027. That law requires disclosure of the name and address of the person who contracts with the printer to publish the legislative advertising in Texas Medicine: Louis J. Goodman, PhD, Executive Vice President, TMA, 401 W. 15th St., Austin, TX 78701.


Study Group Looks at NPP Delegation

At the request of the Texas Academy of Family Physicians (TAFP), TMA convened a study group to examine alternatives to rules governing physician delegation of nonphysician practitioner (NPP) duties.

Gary Floyd, MD, a Fort Worth pediatrician, is a member of the study group and a consultant to the TMA Council on Legislation. He says the rules related to site-based delegation vary among NPPs. The study group will look at possibly modifying the rules for consistency and effectiveness.

For instance, state law requires supervising physicians to randomly review 10 percent of charts for NPPs who practice at alternate sites. Dr. Floyd says the study group may consider whether there is a better method of chart review.

"As an example, it might be more effective to have the NPP screen the charts and then have the physician and NPP compare them to the practice's protocol. If deviations from the protocol exist, maybe the physician can focus on changing the protocol or working with the NPP to meet the guideline," he said.

He stresses physicians will always remain the "captains of the health care team," serving in an essential supervisory role.

For additional guidance on site-specific prescriptive delegation, consult the Texas Medical Board website.

The study group met for the first time in August. Dr. Floyd says the group's findings may lead to legislation related to site-based physician delegation of NPPs.

"That will depend on the group's recommendations and TMA's guidance," he said.


NPPs Are Part of the Team

As health system reform evolves, physicians may have to use nonphysician practitioners (NPPs) more frequently as their patient volumes rise.

"With the doctor shortage, the health system could feel increased pressure to allow unqualified health professionals to treat patients. That could be tragic," said David Bragg, TMA's attorney in some of the association's scope-of-practice litigation.

David Teuscher, MD, a Beaumont orthopedic surgeon and a member of the TMA Board of Trustees, and many physicians recognize while TMA has had differences with some nonphysician practitioner groups, NPPs are an integral part of the medical care team.

"Physicians will increasingly work with NPPs as health system reform is implemented. They're a valuable part of a physician-led team," Dr. Teuscher said.

TMA has tools to help physicians properly manage nonphysician practitioners.

The white paper titled "Delegation of Duties by a Physician to a Nonphysician" contains information on delegation of medical acts and prescriptive authority, standing delegation orders, physician supervision, and other topics. Access it on the TMA website or contact the TMA Knowledge Center at (800) 880-7955 or by email to request a copy.

Nonphysician Practitioners is available for sale from TMA. The publication covers prescriptive authority, physician liability, NPP scope of practice, physician supervision, standing orders, documentation requirements, hiring NPPs, billing, credentialing with government and private payers, and more. Call the TMA Knowledge Center at (800) 880-7955 to order the publication. The cost is $99 for TMA members and $149 for nonmembers.

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