TMA vs. TBCE: Meaning of the Summary Judgment
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In the matter of TMA vs the Texas Board of Chiropractic Examiners (TBCE), on November 23, 2009, the trial court heard the parties’ cross motions for “summary judgment." At issue was the validity of the Board’s rules on Needle EMG, on MUA, and on diagnosis.

On November 24, 2009, the trial court handed down its ruling that the Board’s rules regarding Needle EMG and MUA are invalid but that the Board’s rules regarding “diagnosis” are valid with respect to those matters within a doctor of chiropractic’s scope of practice. The letter that accompanied the order indicated that the trial court believed that the Texas Legislature intended that MUA and Needle EMG are not within doctors of chiropractic’s scope of practice.

This ruling is not yet final and is subject to appeal.

The TCA has its constitutional claims remaining:

(1) a denial of due process, in that if the legislature intended to remove MUA and NEMG, they did so without due process in the form of a “grandfather” clause;

(2) the delegation of authority to CMS, which in turn has adopted the CPT, is unconstitutional as a delegation to a private party and a delegation without standards; and

(3) the legislature cannot adopt a definition of “surgery” that applies differently to similarly situated health care providers (if NEMG is surgery and prohibited to DCs, then it is also surgery and prohibited to PTs).

The TMA also has constitutional claims pending, specifically, that the Texas Constitution prohibits anyone other than medical doctors from “diagnosing” medical conditions. 

The trial on both constitutional claims is scheduled for January 19, 2010.
 
 
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