A recent chiropractic court decision was something of a prelude to the latest round of scope-of-practice battles the Texas Medical Association fights during every state legislative session to keep nonphysicians out of the practice of medicine.
Lately, those battles have included stopping bills that would allow chiropractors to treat the “neuromusculoskeletal” system. Such moves would give them authority in the law – rather than just in Texas Board of Chiropractic Examiners’ (TBCE) rules – to perform vestibular-ocular-nystagmus testing (VONT), used to evaluate a patient’s eye movements. Chiropractors are once again pursuing such a law during this session of the Texas Legislature – even after a Texas Supreme Court ruled in late January said they already have it under TBCE rules.
Houston otolaryngologist John Edwards, MD, president of the Texas Association of Otolaryngology told Texas Medicine that videonystagmography (VNG), one of the two tests under the VONT designation, is a difficult thing to interpret. Dizziness or vertigo can be a sign of a number of complex problems beyond cervical vertigo, he said, and otolaryngologists are concerned about a “creep on scope of practice.”
“The VNG is something that’s complementary that you can use to basically supplement [a history and physical] and to give you some better idea of the etiology, but you can’t just use that alone to make the diagnosis,” he said. “That’s a concern, that you may miss something a little more serious if you’re just using a VNG to diagnose vertigo. Sometimes dizziness or … severe cases of vertigo, you can see it from a stroke, you can see it from a cerebellar bleed.”
An overstep on chiropractic treatment authority was just one of several scope-related legislative moves TMA was keeping its eye on at press time. Medicine also began its fight against the latest bill that would grant advanced practice registered nurses (APRNs) independent prescribing authority.
TMA has derailed several attempts to do so in previous sessions, believing that while physicians can delegate certain important acts, they must act as supervisors in a collaborative, team-based care setting. In 2019, TMA’s advocacy helped stop House Bill 1792 by Rep. Stephanie Klick (R-Fort Worth), the primary APRN independent-practice bill of that session.
“However they couch it, it is independent diagnosing and prescribing without any collaboration with a physician,” TMA Vice President for Advocacy Dan Finch said. “You can dress it up, but that’s what it is, and that’s what we find objectionable about it.”
TMA is also watching – and standing in opposition to – legislation that would grant independent prescribing authority to psychologists.
Taking to the courts
When legislation doesn’t give nonphysician practitioners entry into the practice of medicine, they often seek it through the judicial process. And for a decade, TBCE had unsuccessfully pursued court decisions allowing chiropractors to perform VONT. With TMA pushing back, they were unsuccessful – until January, when the Texas Supreme Court weighed in.
The high court decided in favor of the board’s rules, paving the way for VONT authority. TMA had sued TBCE in January 2011 over those rules, arguing over the past decade that the rules unlawfully gave chiropractors the authority to perform VONT.
TMA asserted the two tests that fall under the VONT designation are the practice of medicine and are “unrelated to the biomechanical condition of the musculoskeletal system or the spine,” leaving them outside chiropractors’ area of expertise. TBCE rules defining “musculoskeletal system” and “subluxation complex” also were part of the court challenge.
Both a district court and an appeals court had previously sided with TMA. But the Supreme Court reversed those decisions, declaring by a 7-2 vote that the TBCE rules were valid.
“TMA argues that no commonly accepted definition of the musculoskeletal system includes nerves,” Chief Justice Nathan Hecht wrote in the majority decision. “But TMA over reads [the disputed rule]. The rule merely recognizes the reality that musculoskeletal dysfunctions cannot be diagnosed or treated without considering associated nerves. Medical neurology is a far broader field.”
Chief Justice Hecht noted that TMA had “presented evidence in the trial court that VONT is a neurological test that a medical doctor may use to diagnose a problem of the brain, inner ear, or eyes, none of which is a part of the spine or musculoskeletal system.”
But he said the chiropractic board had presented evidence that the tests can be used “to facilitate chiropractic treatment” and to “rule out nonchiropractic causes of certain disorders.” TBCE had used an example that the test could be used to see whether cervical vertigo was the cause of a chiropractic patient’s dizziness, Justice Hecht noted.
“The Board argues that chiropractors must consider the nerves involved in a musculoskeletal system in order to determine whether referral to a neurologist is required. TMA characterizes this view as functional and argues that it ignores the fact that body systems are separate,” the chief justice wrote. “But it is not for the judiciary to decide between these competing views. That decision was the Board’s, and it could reasonably consider neural involvement in the musculoskeletal system in defining the scope of chiropractic.”
In a dissenting opinion that agreed with the thrust of TMA’s arguments, Justice Jane Bland wrote that the “scope of practice for chiropractors is straightforward: chiropractors ‘diagnose, analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body.’ This limited scope does not permit chiropractors to conduct neurological testing or to make diagnoses that do not involve the ‘biomechanical condition of the spine and musculoskeletal system.’”
She wrote that any diagnosis a chiropractor makes must be within the scope of chiropractic, and ruling out a neurological condition “based on a neurological examination is to say, affirmatively, that it is not a cause of the patient’s symptoms.”
Justice Bland noted the Supreme Court had rejected the argument that TBCE rules “permit chiropractors to treat ‘virtually any disease and disorder in the whole body, … including … neurological diseases and disorders,” and said by doing so, the court had emphasized the Texas Legislature’s limits on chiropractic practice.
But the court had “abandon[ed] this limiting principle,” she said, by holding that TBCE can authorize chiropractors “to conduct neurological examinations” through VONT.
“Whether some chiropractors are ‘trained’ to perform vestibular-ocular-nystagmus testing does not answer whether they are qualified to interpret those results and diagnose a neurological condition that is unrelated to the spine or musculoskeletal system based on those results,” Justice Bland added. “It also does not answer whether the Board’s rule goes beyond what the [Texas] Legislature has permitted. It does.”
Following the decision, TMA was considering its options on how to proceed.
Tex Med. 2021;117(4):26-27
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