Background
 
On May 11, 2006 the TBCE (acting in response to a legislative mandate made in the Chiropractic Act) adopted rule 75.17 regarding the scope of practice for licensed doctors of chiropractic in Texas. Shortly thereafter, the Board was sued by the Texas Medical Association, which contended that the board's rule 75.17 allowed DC's to practice medicine.  Their basic contention was that the rules of the TBCE regarding Manipulation Under Anesthesia (MUA) and Needle EMG (NEMG) were a violation of the Texas Constitution because it was an infringement of the authority of the Texas Board of Medical Examiners.  Further, the Medical Association challenged the right of chiropractic doctors to "diagnose", opining that only medical doctors have the right to diagnose patients.  The Texas Medical Board later joined the suit on behalf of the TMA and The Texas Chiropractic Association joined on behalf of the TBCE.
 
On November 23, 2009, the trial court held a hearing for “summary judgment" regarding the validity of the Board’s rules on Needle EMG, on MUA, and on diagnosis.  On November 24, 2009, Judge Stephen Yelenosky handed down his ruling that the Board’s rules regarding Needle EMG and MUA are invalid.
 
The court stated, however, 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.  As part of Judge Yelenosky's judgment he writes "the statute excludes surgical procedures from the practice of chiropractic, and it is undisputed that MUA is defined as a surgical procedure."  He also reports that "Given the legislative ambiguity of the statutory language, the legislative history is pertinent.  The transcript of the debate in the legislature clearly reveals that the majority...intended to prohibit the Board of Chiropractic from allowing any chiropractor to perform MUA."
 
Judge Yelenosky also "granted in part as to the Chiropractic Board's use of the word 'diagnosis' in its rule.  However, the court reserves judgment regarding 'diagnosis' as it relates to scope of practice."  Says the judge, "Turning to the Board's use of the word 'diagnosis' in its rules, the statutory language does not preclude it.  There is no statutory definition of the word, and its ordinary meaning is the identification of the nature or cause of a condition, which is not different substantially from 'evaluation' or 'analysis'.  The issue is not the word, but the scope of practice--diagnosis of what and for what purpose." Says Judge Yelenosky, "I am reserving judgment on TMA and TMB's claim that construing the statute to permit particular rules of diagnosis would impermissibly allow the TBCE to authorize the practice of medicine.  Expert testimony is pertinent to that question."
 
Discussion
 
This ruling is not yet final and is subject to appeal.  If the summary judgment remains in effect the TBCE rules pertaining to MUA and NEMG will be removed and chiropractors will have no rule authorizing the use of MUA or NEMG.

"The Board of Chiropractic Examiners will appeal the judge's adverse rulings on Needle EMG and MUA and our legal counsel has issued the following statement:

"The case of Texas Medical Association, et al. v. Texas Board of Chiropractic Examiners, et. al. (hereinafter referred to as the TMA vs. TBCE case) is pending in district Court in Austin. On November 24, 2009, the Court made a ruling on three of the pending issues involved. Basically, the Judge ruled on two of the issues that MUA and Needle EMG are outside of the scope of Chiropractic practice as defined by the legislature in the statute. That raises the following question:

Question: What does the judge's opinion of MUA and Needle EMG mean? Do I have to cease doing them immediately?

There is nothing in the Judge's order that requires Chiropractors to immediately cease performing MUA's and Needle EMG's. The decision is not final and enforceable.

Accordingly, no action is presently planned by the staff of the TBCE to penalize DC's who perform MUA's and Needle EMG's until such time a final order requires us to do so. However, we urge you to consult your private attorney about possible ramifications of performing these procedures including but not limited to possible actions by insurance companies based on this ruling."

As per the above, DC's are not required to stop performing MUA or Needle EMG at this point, as the legal decisions are not final. However, the Board urges each DC who performs these procedures to consult with his or her attorney concerning any possible legal implications of performing these procedures while this case is on appeal. The Board has no power to determine whether or not insurance companies will pay for the procedures while a final legal outcome is being determined.
 
The TCA has its constitutional claims remaining that will be brought to trial before the court.
 
Firstly there is a denial of due process issue, in that if the legislature intended to remove MUA and NEMG, they did so without due process in the form of a “grandfather” clause.
 
Secondly, the delegation of authority to "legislate" to the federal government in the form of the Centers for Medicare and Medicaid Services, which in turn has adopted the CPT manual (a manual regulated by the medical profession), is unconstitutional "in that it is a delegation to a private party and a delegation without standards." There are not sufficient standards to prevent the abuse of the legislative authority, for with just a "reclassification" by the AMA whole scopes of practice may be affected.  It appears that the Texas legislature abdicated its responsibility to define practice limitations by referring this decision to another source without incorporating sufficient standards to allow the legislature to be able to exert its legislative control.
 
Thirdly, while the legislature  may define the procedures acceptable to be practiced by limited scope of practice practitioners, the legislature cannot adopt differing definitions of a word and apply it selectively.  It may not adopt a definition of “surgery” that applies differently to similarly situated health care providers.  If NEMG is surgery and prohibited to chiropractic doctors, then it is also surgery and prohibited to physical therapists, and to nurses as well.  (For that matter childbirth could be considered "surgery" and the practice of midwifery affected as well).
 
The TMA also has constitutional claims pending, specifically, that the Texas Constitution prohibits anyone other than medical doctors from “diagnosing” medical conditions.  Attorneys report that the issue of diagnosis has already been decided by the Texas Supreme Court in 1958 and that the issue regarding diagnosis is not expected to be a pivotal issue with the court. 
 
Potential
 
It appears that Texas is the first state to encounter this potential scope-limiting delegation of legislative authority to the AMA.  The outcome of this litigation will have an effect on other states as well. While the outcome of this case is far from "final", here are the possible ramifications as they are currently understood at the moment:
 
First, this Summary Judgement is NOT final and will not BE final until all avenues of appeal have been exhausted. 
 
Secondly, this specific Judgement applies only to the TBCE's rules regarding MUA and NEMG.  Should the rules be finally upheld to be void, it basically means that the chiropractic application of MUA or NEMG would be "at risk" and challengeable.  BUT it should also mean that neither could PTs or nurses perform either of these services. 
 
Thirdly, any of the multiple parties could appeal any decision of the judge which could take one-to-several years to resolve.
 
This battle is FAR from over, and in fact is just beginning.  In the interim, until judicial decisions are made "final", MUA and NEMG should be acceptable as practiced under the rules established by the TBCE. (See TBCE statement dated December 2, 2009)
 
The battle for "diagnosis" is a bit more murky.  While it seems that the common sense definition of "diagnosis" is favored by the court, it is possible that the Medical Association may attempt to try to have the court establish diagnostic limitations, rather than the legislature.  While an unlikely event, we must be prepared.  Experts on diagnosis--both clinical and legal experts--are being sought from around the country.
 
The trial on the constitutional claims in this case is scheduled for January 19, 2010.  The trial may proceed as scheduled, or a continuance (a delay) may be granted to a later date.  The TCA has plans to keep us informed as to the progress and outcome regarding this case.