Second Update on TMA v TBCE

March 11, 2010                                                      Bulletin 2010-No. 03

 

It has been previously reported that the Texas Medical Association (TMA) filed a lawsuit against the Texas Board of Chiropractic Examiners (Board) challenging the validity of the Board’s scope of practice rule.  TMA joined the Texas Medical Board to the declaratory judgment lawsuit. The Texas Board of Chiropractic Examiners filed a plea to the jurisdiction but the district court denied the plea, and the Board appealed to the Austin Court of Appeals and lost.  The case went back to the district court.

 

The Texas Chiropractic Association (TCA) intervened in the declaratory judgment lawsuit. TMA and the Texas Medical Board filed a motion for partial summary judgment contending that the Chiropractic Practice Act does not allow chiropractors to perform manipulation under anesthesia (MUA) and needle electromyogram (EMG) tests.  The Board and the TCA also filed a motion for partial summary judgment.  The Board and the TCA contended that chiropractors could make a diagnosis and that making a diagnosis was not limited to medical doctors.  On November 24, 2009, the district court granted by letter TMA’s and the Texas Medical Board’s partial summary judgment that the Chiropractic Practice Act does not allow chiropractors to perform MUA and needle EMGs).

 

The Board has stated that it will appeal the district court’s ruling on MUA and needle EMGs.  However, the Board has also stated that there is nothing currently preventing chiropractors from continuing to perform MUAs and needle EMGs.  The Board has issued a caveat that chiropractors should consult with an attorney regarding whether then can perform MUAs and needle EMGs.

 

On January 5, 2010, the TCA filed objections to the TMA’s and the Texas Medical Board's expert witness on diagnosis, Dr. David Teuscher, M.D., and filed a motion to continue the trial originally set for January 19, 2010.  A hearing on the motion to continue was not required, as all parties have agreed to pass the trial setting.  It is the author’s understanding that the trial is set for August 16, 2010.  

 

The TCA has filed a number of motions, the contents of which the author is currently unaware.  A hearing is set for March 16, 2010, on the TCA’s motions.

 

TMA and the Texas Medical Board are specifically challenging Board Rule 75.17, the Scope of Practice, subsection (a)(3) which provides that “[n]eedles may be used in the practice of chiropractic under standards set forth by the Board but may not be used for procedures that are incisive or surgical.

 

(A) The use of a needle for a procedure is incisive if the procedure results in the removal of tissue other than for the purpose of drawing blood.

 

(B) The use of a needle for a procedure is surgical if the procedure is listed in the surgical section of the CPT Codebook.”

 

The TMA and the Texas Medical Board are also specifically challenging the Scope of Practice, subsection (c)(2)(D) which provides that when examining and evaluating  an individual patient or patient populations chiropractors are authorized to use electro-diagnostic testing.

 

The TMA and the Texas Medical Board are also specifically challenging the Scope of Practice, subsection (c)(3) which provides that when examination and evaluation services which require a license holder to obtain additional training or certification, in addition to the requirements of a basic chiropractic license, the Board will require approval of the training course(s) among other requirements.

 

The TMA and the Texas Medical Board contend the subsections set out above exceed the scope of practice as set out in the Chiropractic Practice Act, unlawfully authorize chiropractors to practice medicine, violate the Medical Practice Act and violate the Texas Constitution, art. XVI, § 31.   The TMA and the Texas Medical Board are still challenging the diagnosis holding of the district court.    

 

The TMA and the Texas Medical Board contend the practice of medicine by unlicensed persons (i.e. chiropractors) is an immediate danger to the public and entitles a court to enjoin “such unauthorized activities.”

 

The TCA has contended that parts of the Medical Practice Act and Chiropractic Practice Act are unconstitutional as they delegate power to a federal agency which has delegated power to the American Medical Association.  The TCA cites to the case of FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) for the proposition that a delegation occurs when an non-governmental entity is given the power and the discretion to set public policy and promulgate rules to achieve that policy, or ascertain conditions upon which existing laws may operate.  The TCA contends that if a statute delegates such authoritative power to private interested persons, it is a private delegation.

 

 The TCA made a Public Information Request a/k/a Open Records Request upon the Texas Medical Board requesting “a copy of the “surgery section” referenced in the Medical Practice Act. . . .”  The TCA alleges that the Texas Medical Board responded that “it did not have custody or control of a copy of the law and that the law changes all the time.”

 

The TCA has made other claims against the TMA and Texas Medical Board and it will be interesting as to how this case comes out as it advances to trial, through trial and possibly on to the Court of Appeals.     

 

 

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