New at the TBCE
Written by Editor   
Wednesday, November 23, 2016 11:46 AM

News Bite: 1) Dr. Michael P. Henry of Austin has been appointed to the TBCE.  He will serve until 2019.

2) The TBCE HAS voted to appeal the TMA v. TBCE lawsuit recently decided by Judge Rhonda Hurley.  The appeal will be filed before Jan. 17, 2017.  Should TMA prevail, the certification to perform VONT would be repealed, the definition of "musculoskeletal system" would not include "nerves", "nerves" would also have to be removed from the definition of "subluxation complex," and DCs would not be able to render a "diagnosis"  but rather only an examination, evaluation and analysis of a muscle or skeletal condition that does not pertain to nerves.

Governor Greg Abbott has appointed Dr. Michael P. Henry to the Texas Board of Chiropractic Examiners for a term set to expire on February 1, 2019. 

Michael P. Henry, D.C. of Austin is a doctor of chiropractic and the clinic director of TexStar Chiropractic Clinic. He is a member of the Texas Chiropractic Association, American Chiropractic Association and the Austin chapter of Ducks Unlimited. He is a former volunteer for the North Texas Make-A-Wish Foundation, Boy Scouts of America and Young Men’s Business League. Henry received a Bachelor of Science in kinesiology from The University of Texas at Austin and a Doctor of Chiropractic from Parker University.

The Texas Board of Chiropractic Examiners (TBCE) has received many questions from our licensees regarding the recent judgment by Travis County District Court Judge Rhonda Hurley, officially issued October 19, 2016. The lawsuit challenged certain parts of Board Scope of Practice Rule 78.13. The Board met at its quarterly meeting on November 17, 2016, and voted to move forward with an appeal of the ruling.  Once the appeal is approved by state authority and officially filed, the matter will be transferred to the Third Court of Appeals of Austin and scheduled for review mid-year 2017.   The legal matter is not final until all appeals have been exhausted and a ruling is rendered by a higher court. In the meantime, the TBCE rules and regulations continue to govern the practice of chiropractic and licensees can continue to practice as they have pursuant to the scope of practice, codified in 22 TEX. ADMIN. CODE §78.13, which includes diagnosis.

We reiterate that until all appeals and/or legal remedies are exhausted, nothing changes in the current day to day practice of chiropractic in Texas.
Board Chiropractic Scope of Practice Rule 78.13 can be viewed at Texas Administrative Code 78.13. The following is a breakdown of TMA's challenges to this rule:
Vestibular Ocular Nystagmus Testing (VONT):  TMA challenged Board Rule, 22 Tex. Admin. Code, 78.13 (b)(3)(B), which authorizes a chiropractor with the required 150 hours training and additional examination certification to perform vestibular testing.  If TMA's challenge is upheld, Board Rule 78.13 (b)(3)(B) would need to be repealed.  
Definition of "Musculoskeletal System" to include nerves:  Board Rule 78.13(a)(5) defines musculoskeletal system, in part, as:  "The system of muscles and tendons and ligaments and bones and joints and associated tissues and nerves..." .
TMA challenged that nerves should not be included in the definition, because the neurological system is a separate system from the musculoskeletal system. Well accepted practice of chiropractic holds that nerves are an integral part of the musculoskeletal system. If TMA's challenge to inclusion of nerves is upheld, the Board would need to update this definition by removing nerves. The TBCE is reporting in a letter sent to licenses that "from a practical standpoint, this would not affect the day to day practice of chiropractic."
Definition of "subluxation complex" to include neuromusculoskeletal: Board Rule 78.13(a)(9) defines subluxation complex, in part, as a neuromusculoskeletal condition.  Same as above; if TMA's challenge was upheld the Board would need to update the definition by removing "neuro". Again, the TBCE states that "from a practical standpoint, this would not affect the day to day practice of chiropractic."  
Diagnosis:  Board Rule 78.13(d) states, in part, that a chiropractor may render "analysis, diagnosis, or other opinion regarding finding of examinations and evaluations."  TMA argues that the Chiropractic Act (Chp. 201 of the Tex. Occ. Code) defines the practice of chiropractic as means to "analyze, examine and evaluate," but that the Act does not specifically state "diagnose." Thus, TMA challenges that use of diagnosis in the Board Rules exceeds the scope of practice.  This issue was initially litigated by the TMA in a prior lawsuit, Cause No. 3-10-00673-CV, in which the Third Court of Appeals ruled against TMA.  TMA reasserted the diagnosis argument in this current lawsuit.  As such, the Board has argued, res judicata, which means the claim should be barred because it was fully adjudicated in another lawsuit.
Chiropractors have been diagnosing their patients since 1949, despite TMA's arguments. Without the ability to independently diagnose, a chiropractor could run the risk of having to take patients by referral, rather than point of entry.  Billing Medicaid and Medicare requires a diagnosis. From a practical standpoint, diagnosis is not an issue likely to be resolved by litigation. Possibly it would be resolved by way of legislation which proposed to include the term "diagnosis" in the Chiropractic Act.