TBCE's Compliance with Recent Legislative Changes
In S.B. 673, the 1995 Legislature made numerous changes to the Texas Chiropractic Act. TBCE's new board is complying with many of the changes ordered by this law (Appendix 1). However, several concerns linger.
Use of needles
S.B. 673 prohibits chiropractors from performing any incisive or surgical procedures-that is, any incision into any tissue, body cavity, or organ. The only incision specifically allowed is the drawing of blood samples for diagnostic purposes. The board has taken no action, however, to develop rules applying these restrictions to chiropractors' day-to-day practice.
In particular, TBCE has not established rules governing how these provisions may restrict the use of needles. At this writing, the board is deciding whether state law allows chiropractors to inject vitamin supplements. In its discussions of this issue, the board has expressed concern that the practice may conflict with restrictions on controlled substances and has requested an opinion on this topic from the Office of the Attorney General (OAG); it has not, however, weighed the effect of the prohibition on incisive procedures.
Another needle-related issue concerns a procedure called needle electromyography, commonly called needle EMG. Needle EMG is a test that graphically records the electrical activity in a muscle to diagnose conditions affecting the musculoskeletal system and its nerves. In January 1995, TBCE issued a letter opinion stating that needle EMG is allowable under Texas law, although this procedure involves the insertion of needles into the skin.
The practice of acupuncture also may be affected by this language. In September 1995, the Texas State Board of Acupuncture Examiners requested an OAG opinion on whether acupuncture is within the scope of chiropractic practice. In the opinion issued, the Attorney General's office ruled that acupuncture is not within the scope of chiropractic. However, the chiropractic board plans to request a separate opinion since the board disputes certain aspects upon which the opinion is based. In the meantime, TBCE has advised licensees of possible legal implications of practicing acupuncture without a separate license, but has not taken a stand to prohibit the practice of acupuncture by chiropractors. Although it is not possible to determine how many chiropractors offer acupuncture, TPR surveyed the telephone directories of major Texas cities and found that a number of chiropractors in Texas continue to advertise acupuncture as a service.
Manipulation under Anesthesia
S.B. 673 also prohibited TBCE from certifying chiropractors to perform manipulation under anesthesia (MUA), a procedure during which a patient receives a musculoskeletal manipulation after the patient has been anesthetized by a licensed physician. According to chiropractors, a MUA is administered to a patient to further enhance the effectiveness of a manipulation by removing a patient's natural resistance to a certain range of motion.
TBCE has stated that the statutory change in S.B. 673 prohibits the board from certifying chiropractors to perform MUAs, but does not prohibit chiropractors from performing this procedure. Therefore, the board has not forbidden the practice by chiropractors.
S.B. 673 created a nine-member, multi-disciplinary commission to advise TBCE on scientific and technical matters related to new and experimental diagnostic and treatment practices, procedures, and instruments within the definition of chiropractic care. Commission membership includes five chiropractors, two medical doctors, one nurse, and one pharmacist.
Commission members were appointed in 1995 but met only once on July 11, 1996. TBCE members seem uncertain of the need for this advisory commission and have provided it with minimal direction. At its first meeting, commission members received a copy of the law creating the commission, but no additional direction on their responsibilities. After the first meeting, several members seemed uncertain about their mission. Without clear direction, the commission seems unlikely to serve much purpose.
A. The Texas Board of Chiropractic Examiners should take immediate steps to ensure full compliance with the provisions of S.B. 673. As part of this effort, TBCE should:
B. TBCE should report on its actions to implement or comply with each of the areas identified above to the governor, lieutenant governor and speaker of the House of Representatives by March 1, 1997.
- notify chiropractors that any use of needles other than for the drawing of blood for diagnostic purposes is prohibited by state law.
This notice could be provided at little or no additional expense if it is included with other material mailed out to licensees. The information should be detailed enough to ensure full compliance and make it clear that these activities will result in disciplinary action. The board should ensure that this notice is delivered no later than March 1, 1997. Unless the board receives any further guidance from the attorney general stating that chiropractors can legally perform acupuncture, the board should assume the practice is prohibited and should notify licensees.
- develop and adopt formal rules outlining incisive or surgical procedures prohibited under the Texas Chiropractic Act.
This list should include all known procedures that may be in question, and make it clear that failure to mention any specific procedure should not be construed as authorization for it.
This rulemaking process may take several months to complete. The rules must be developed with significant input from licensees regarding areas of potential confusion, and must be published and subjected to public comment as required by law. A clear plan and process for the development of the proposed rules should be completed no later than March 1, 1997, with formal rules adopted and in effect no later than December 1, 1997.
C. If the Legislature intends to prohibit the use of needles by chiropractors, the Chiropractic Act should be amended to specifically define the use of needles as an incisive procedure except for the purpose of drawing blood for diagnostic testing.
This would clarify an area of considerable debate within the Texas chiropractic profession. A clearer prohibition in law also would assist TBCE in enforcing compliance, particularly if the board ever goes to court over this matter.
D. If the Legislature intends to prohibit chiropractors from performing manipulation under anesthesia, the Chiropractic Act should be amended to specifically exclude this service from the practice of chiropractic.
This would clarify legislative intent; again, at present, TBCE is prohibited only from certifying chiropractors to perform MUA. The procedure itself is not specifically prohibited.
E. The Chiropractic Act should be amended to broaden the multi-disciplinary advisory commission's directive to include "advising the board on all scientific and technical matters regarding diagnostic and treatment practices, procedures, or instruments that are potentially within the definition of chiropractic in Texas." If the directive is not broadened, TPR recommends abolishing the advisory commission.
This change would eliminate the commission's current limitation to examining only "new and experimental" procedures. It would expand the scope to include procedures "potentially" within the definition of chiropractic in Texas, since many debatable areas exist within this definition. These changes would allow the commission to advise the board on a wider range of issues of real concern within the profession. If this change is not made, TPR sees little benefit in continuing the advisory commission's efforts.
TBCE could implement these recommendations in the board's normal course of business. Thus, these recommendations would have no fiscal impact.
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