National Center For Complementary And Alternative Medicine
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand and hand with the process of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain under the regimen of their barbarous ancestors.
Thomas Jefferson, in a letter to Samuel Kercheval, 1816
Several generations after these words were written, the art and science of chiropractic began its development. This development not only brought new ways of understanding and treating disease, but it also presented a challenge to state and private institutions developing to regulate, and in some cases, monopolize, the business of health care. Chiropractic has had many successes in crafting a role in the health care system and continues to face numerous challenges in an increasingly regulated and managed care system. Chiropractic has always reflected a somewhat idiosyncratic professional community, and many chiropractors are understandably uneasy with the unprecedented oversight and complexity in utilization reviews, quality assurance concerns, and the overarching control over all health care professions exercised by managed care and by governmental programs (see Chapter 29) for further detail on managed care and insurance issues). The intensity of the business development of health care has been counterbalanced to some extent by a resurgence of consumer interest in natural healing systems, creating additional opportunities and challenges for the chiropractic profession.
Although chiropractic is so well established that some ambiguity exists in referring to chiropractic as an “alternative” healing system, it clearly does offer an alternative to the dominant mode of allopathic* healing. As complementary and alternative medical (CAM) care takes an increasingly stronger role in the health care system, chiropractic plays a unique role in this development. Chiropractic has the mixed blessing of being the best established and most widely used of all the alternative modalities, not only as a method of care for patients, but also as a target of old guard mainstream medical practitioners. Further development of chiropractic is advancing on many fronts. Legal actions against noncompetitive institutional practices and inappropriate denials by insurance companies, state laws banning discrimination against chiropractic in health care policies, reimbursement for a wider range of services by Medicare and worker’s compensation programs, the continuing development of professional standards of care, and expanded interpretation of scope of practice are some of the most critical areas of continuing struggle as chiropractic seeks to make its legal purview expand to fit the range of competence it offers its patients.
*“Allopathic” medicine is now used as a synonym for “conventional” or “mainstream” medicine. Originally, the term was coined by homeopaths to describe medicines with allopathic, or oppositional, effects (i.e., antiinflammatory medicines used to combat inflammation) and to distinguish them from homeopathic medicines, which are asserted to work by the “law of similars.”
HISTORICAL DEVELOPMENT
When D.D. Palmer began experimenting with spinal adjustments in the early 1890s, the professional landscape was composed of a lively competition between physicians and surgeons, osteopaths, homeopaths, eclectic herbalists, and a variety of other healers. At the turn of the century, what is now known as scientific medicine was at its very inception. Ether and antiseptics had been on the medical scene for only a generation, and the use of the “heroic” efforts of blistering, bleeding, and cathartics were in decline. Medical schools began to grow in earnest at this juncture, a growth that bloomed into a more professional education following the well-known Flexner report’s recommendations in 1910. 1 By the time chiropractic was established in 1895, one half of the states had passed medical practice acts limiting the practice of medicine to those educated at allopathic medical schools. 2
As medical schools became more professional in the early part of the century, many other professional and economic factors converged to accelerate the development of the medical profession. The development in the 1930s of third-party payers, including Blue Cross Blue Shield and indemnity insurance (fee-for-service) policies, steered access to care sharply in the direction of medically trained providers. The development of medical hospitals and investment in the pharmaceutical industry also consolidated medical economic strength. These events established medical care as an industry and planted the seeds of the struggle between the professions of chiropractic and medicine.
Limited license statutes began shortly after the passage of the medical practice acts, as states recognized that practitioners such as dentists were required to focus on particular areas not within the training of medical physicians. Chiropractic was a principal part of this development. By the 1920s, chiropractic was flourishing with approximately 36,000 practitioners, a figure that has slowly grown to approximately 55,000 practitioners today. 3 Chiropractic at the beginning of the century was tolerated to the extent that many of the states without chiropractic licensing allowed large numbers of chiropractors to practice. 1 The Federation of Chiropractic Licensing Boards was established in 1933 to promote unified standards in licensing and to provide assistance to individual state licensing boards. By 1974, chiropractic was licensed in all 50 states and the District of Columbia.
Central to the development of any health occupation as a licensed profession is creating a standardized and accepted competency examination. The National Board of Chiropractic Examiners has been administering such examinations since 1965. All but a handful of states also require that chiropractors continue their training by imposing continuing education requirements before renewal of their licenses.
Current Efforts to Advance Chiropractic
The American Chiropractic Association (ACA), the International Chiropractors Association (ICA), and various state organizations have been actively working to further the legal framework under which patients have access to quality chiropractic care. The development of standardized practice guidelines, for example, has been a focus throughout the health care industry. The Congress of Chiropractic State Associations has been developing such voluntary standards since 1992, referred to as the “Mercy Guidelines.” The ACA was granted seats on two committees involved in periodically revising the Current Procedural Terminology (CPT) codes used to secure insurance reimbursement: the AMA/Specialty RVS [Relative Value Scale] Update Committee and the Health Care Professionals Advisory Committee (HCPAC). Another significant advancement in the acceptance of chiropractic was the creation of a “Chiropractic Health Care” section in 1995 in the American Public Health Association (APHA). The APHA had taken an antichiropractic posture until 1982, when it modified its stance resulting from efforts of the chiropractic community, including pressure from the historic lawsuit of Wilk v. AMA, highlighted later in this chapter.
Other recent developments are the successful campaign by the ACA, ICA, and the Association of Chiropractic Colleges (ACC) to secure inclusion of chiropractic care in the health services programs of the U.S. Department of Defense (2000) and Department of Veterans Affairs (2002); the addition of two doctors of chiropractic to the health services team serving members of Congress; and the appointment of Christine Goertz as the first chiropractor (she also holds a Ph.D.) to work in a full-time salaried position at the National Institutes of Health, as a program officer at the National Center for Complementary and Alternative Medicine (NCCAM).
Recent Growth in Alternative Practices
The last decade has seen phenomenal growth in the public and professional recognition of alternative and complementary health care approaches as a critical ingredient in health and wellness: the role of nutrition, exercise, and lifestyle; the contributions of alternative approaches, such as acupuncture, herbal approaches, and homeopathy; and the role of attitude and the responsibility of patients for their own health have all gained consumer and scientific acknowledgment. This growing interest is the result of the successes of alternative approaches and recognition of the limitations of conventional medicine as a complete approach to health needs. Although still termed “alternative,” these approaches are a significant aspect of our health care system; Americans make more visits to alternative practitioners than they do to primary care medical physicians (in 1997, 629 million visits to CAM providers versus 386 million visits to primary care physicians) and pay more out of pocket to see these providers than they do for all hospitalizations. 4,5
The National Institutes of Health, through the NCCAM (formerly the Office of Alternative Medicine), is issuing grants as part of a new commitment to research the effectiveness of alternative treatments. Over 80 medical schools, including Harvard, are beginning to teach alternative medical practices, and a blue ribbon panel recently recommended that this practice be extended into all medical school curricula. These charges portend a growing integration of mainstream and alternative modalities, a shift that will create challenges and opportunities for chiropractors.
Criticisms of Medical Practice
Another influence affecting the public perception of chiropractic is increased attention to the iatrogenic hazards posed by medical science. In contrast to the drugless nature of chiropractic, the wisdom of pharmaceutical use has come under assault on a number of fronts, some debated more openly than others. A 1998 article in the Journal of the American Medical Association6 noted that fatal reactions to properly prescribed, approved medications kill approximately 106,000 hospital patients per year, a staggering figure that makes this the fourth leading cause of death in the United States. This figure does not include outpatient deaths. The article also projected that 2.2 million patients are harmed in this fashion.
Other studies have raised serious issues about the objectivity of researchers whose funding depends on pharmaceutical companies, a source of income that creates an appearance, if not the reality of, a conflict of interest. This factor has also been quite public and has come from within segments of the medical profession itself, as has attention to the extent to which drug companies steer medical physicians and health organizations to use pharmaceutical therapeutics instead of other approaches. 7
Although these stories do not by themselves suggest a sea change in public confidence in medical solutions, they are part and parcel of the consumer trend toward less technologic, invasive, and risky methods of healing.
SCOPE OF PRACTICE ISSUES
In the United States, regulating the practice of the healing arts is predominantly a state activity. Although the Federal government regulates some aspects of health care through food and drug law, administered by the U.S. Food and Drug Administration (FDA), and has a significant impact on what is deemed acceptable care through its regulation of third-party health insurance payment in the form of Medicare, Medicaid, and the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), as well as various health care fraud statutes, the vast majority of health care regulation is left to the states. This authority includes the licensing or certification of health care providers.
Each state decides which health care methods or types of provider it will authorize, the educational and other requirements for licensure, and the particular rules to which practitioners must conform their practice. Of particular importance, each state sets the nature and extent of practice allowable for each method. The amount of variation is significant among the 50 states in the scope of practice granted by the state, and chiropractors setting up practice must take special care to learn the nuances of these requirements in their own state. Some states have very narrow definitions restricting chiropractors to adjustment/manipulation of the spine, although most allow chiropractors a broader range of treatment modalities. Important to recognize is that just because a procedure is taught to chiropractors as a part of approved chiropractic curricula does not mean that the practice will be within the chiropractor’s scope in a particular state. 8 Conversely, however, the lack of training in a procedure at a chiropractic college can be held to bar the practice. 9
The grant given chiropractors to practice is considered a limited scope of practice. Every health care provider other than medical and osteopathic physicians is given such a limited license. Most state statutes, for example, state that the grant of a scope of practice to one profession does not rule out its practice by another, that a licensed massage therapist, for example, has a right to perform massage does not prevent a physical therapist or a chiropractor from also performing massage. The grant of a right to perform spinal adjustment/manipulation to chiropractors does not, therefore, generally bar the unlimited rights of a physician. This issue provides an example of the convoluted relationship between state and federal laws. Although each state grants the right to practice, federal Medicare policy can have a direct impact on the practical realities of scope of practice. For example, The Center for Medicare and Medicaid Services (CMS), formerly the Health Care Financing Administration, will not allow a chiropractor to be supervised by a medical physician for the purposes of claim submission, because Medicare has correctly determined that chiropractic adjustment/manipulation is not within the training and scope of the medical physician. Therefore medical physicians generally may employ a chiropractor but cannot bill Medicare or most other third-party payer for the services of employee chiropractors, as they might, for example, a physician’s assistant or nurse.
Although only medical and osteopathic physicians have a general license to diagnose and treat any disease or illness and under state laws can generally do so using virtually any treatment procedure, limited license practitioners (e.g., chiropractors, optometrists, podiatrists, dentists, acupuncturists, speech pathologists, audiologists) must make sure that they remain within the bounds of their licensed activities and do not infringe on the practice of medicine. Although courts may not always recognize the requirement, a disciplinary action against a chiropractor for exceeding the scope of chiropractic practice should arguably demonstrate that the statute did not authorize the practice in question and that the activity infringes on the practice of medicine. 10 Given the broad grant to medical physicians, demonstrating this infringement can often be accomplished.
Some chiropractors have attempted to avoid licensure by claiming that they are practicing naturopathy. This practice has been particularly true in states that allow the practice of naturopathy without regulation or based simply on registration, creating easier entry and less oversight. Because naturopaths may use manual manipulation as a part of their practice, these chiropractors have reasoned that they should be allowed to practice in this manner. The courts have disagreed, holding that the practice of adjustment or manipulation falls under the defined scope of chiropractic and thus requires such a license. 11 The trend in those few states that allow the practice of naturopathy is to require a license in any event. (Alaska, Arizona, Connecticut, Florida, Hawaii, Montana, New Hampshire, Oregon, Tennessee, and Washington license naturopathic physicians, and the District of Columbia requires registration rather than licensure.)
Scope of practice issues have also been the subject of heated disputes between groups of chiropractors with conflicting views of the role of chiropractic in health and the range of both illness and treatments that chiropractors should address. Disputes between “straights” versus “mixers,” or “conservative” versus “broad scope” practitioners, have flared up in conflicts over which schools are accredited and how extensive a range of practices state licensing boards should accept. However, with Sherman College of Straight Chiropractic now holding full accreditation with the Council on Chiropractic Education (CCE), certain aspects of the decades-old accreditation controversy appear to have been resolved.
Debates on chiropractic scope of practice, however, continue to embroil the profession. In evaluating these disputes, understanding the broad ramifications is important. The acceptance of a particular school of thought at a regulatory level can affect whether a wide range of services can be delivered, such as adjunctive therapies (e.g., ultrasound, electronic muscle stimulation, hot and cold packs), nutritional counseling (including the recommendation of supplements), and extremity adjustment/manipulation, as well as procedures such as applied kinesiology, meridian therapy, and other services. Moreover, laws or regulations pertaining to certain diagnostic responsibilities and capabilities (e.g., diagnosing nonspinal conditions, performing phlebotomies for blood testing, ordering and interpreting magnetic resonance imaging films) may affect whether a chiropractor can act as a primary care physician and as a gatekeeper for the referral of covered services within a health plan. Because of the stakes involved, scope of practice limitations have been attacked in court, generally without success. 12 In the United States, chiropractic scope of practice issues are almost always resolved through state legislative action or interpretation of the law by chiropractic or other regulatory boards.
Legal Status of Chiropractors
Notwithstanding the limited scope of their license, chiropractors are considered independent practitioners. Independent practitioners are able to practice without a supervisory or collaborative relationship with a medical physician or other provider. In contrast, many health care occupations are dependent on some form of supervision or collaboration with a medical physician, such as nurses (except for advanced nurse practitioners) and physician assistants, among many others. Other practitioners, such as acupuncturists, physical therapists, and nutritionists, are treated as either an independent or dependent practice depending on the state.
The independent status of chiropractors allows them to play a role as a gatekeeper in various health care settings. Despite their independent status, some states bar chiropractors from using the term “chiropractic physician.”13
As noted earlier, statutes also address chiropractors’ ability to include a variety of particular modalities in their practice, such as acupuncture, acupressure, or meridian therapies; nutritional counseling; laboratory diagnostic procedures; ancillary or adjunctive procedures, such as electric muscle stimulators, hot and cold packs, diathermy, ultrasound, or massage; or even whether a chiropractor can perform either a physical or an x-ray examination that extends to parts of the body other than the spine. 14Chiropractors risk facing disciplinary proceedings by state regulatory authorities for practicing those activities that are not clearly within their scope of practice. Not surprisingly, these differences among state statutes reflect the political and legal struggle between the straight and mixer schools of thought within chiropractic, 15 as well as the concerns of medical physicians who have sought to limit the reach of chiropractic. Regarding conflicts between straights and mixers, an important aspect to note is that these categories do not reflect a sharp dichotomy in which all chiropractors are on one side or the other. The vast majority of chiropractors are in the middle ground between the extremes.
Acupuncture
In the United States and other Western nations, needle acupuncture has historically been considered to be a medical practice because it is offered for treating disease and also because it involves penetrating the skin. The practice of acupuncture by chiropractors has been addressed differently among the states. Some states allow chiropractors to practice as part of their standard scope of practice, others will allow practice after completing postgraduate training (commonly 100 to 200 hours), and approximately one half of the states do not allow such practice unless the chiropractor is separately licensed (Box 27-1). Some chiropractors practice a form of meridian therapy (via electric stimulation or digital acupressure) that does not involve the puncture of the skin. This technique is more likely to be acceptable given that it is not an invasive procedure, though results of disciplinary actions by state licensing boards have been mixed. 16
Box 27-1
STATES WHERE CHIROPRACTORS MAY PRACTICE NEEDLE ACUPUNCTURE
Alabama
Alaska
Arizona
Arkansas
Colorado
Connecticut
Delaware
Florida
Illinois
Indiana
Iowa
Kansas
Maine
Minnesota
Missouri
Montana
Nebraska
New Mexico
North Carolina
North Dakota
Oklahoma
South Dakota
Texas
Vermont
Virginia
West Virginia
Diagnostic Testing
Another issue of contention is the extent to which chiropractors may perform or order diagnostic testing. Some chiropractors perform complete physical examinations, including drawing blood for diagnostic testing or performing Papanicolaou’s smear. Similar to most scope of practice questions, the answers at which chiropractic boards and state courts arrive have varied from state to state. The intent of the practitioner may govern the result; the procedure itself may be seen as within the competency of the practitioner, but in some states, an intent to diagnose human ailments unrelated to chiropractic practice can lead to liability.17 However broad or restrictive the state law under which they practice, chiropractors (and all other health practitioners) are well advised never to exceed their scope of competence, even if a particular procedure beyond their competence is permitted by state law.
Nutritional Counseling
The right of a chiropractor to give nutritional advice has been the subject of much contention and confusion. Understanding allowable conduct under chiropractic practice acts is not always self-evident. Some courts have held, for example, that chiropractors cannot prescribe or otherwise suggest to their patients that they take a supplement available over-the-counter even when the state practice act allows for giving “dietary advice.”18 Nutritional advice has been problematic throughout the alternative health care community, though chiropractors have been a primary target for these actions despite the irony that many chiropractors are better trained in nutrition than most medical physicians. These disciplinary actions occur because of a concern that the chiropractor is prescribing for a particular ailment, which appears to the court to be counter to the established legal history of chiropractic as a “drugless art.”19 Courts are particularly concerned when specific remedies are suggested for particular ailments, 20 when the provider does not explain their educational background or limited scope of practice, 20 when blood work is used as a basis for nutritional guidance, 21 or when the provider has otherwise exceeded his or her scope of practice. 22
The central basis for convictions is statements that can be interpreted as a prescription for a specific disease condition. However, many of these cases contain additional facts that may have added to the court’s willingness to find the providers culpable of practicing medicine without a license. A chiropractor, for example, found guilty of medical practice act violations for giving nutritional advice was selling a line of nutritional products in his office. Although the language of the court suggests it may have upheld his conviction in any event, these sales may have undercut the argument that the statements were informational rather than prescriptive. 23 Of course, people holding themselves out as practicing chiropractic without a license are also subject to criminal prosecution. 24
Although the scope of practice expressly arises only from the language of the state law, the standards of care established by the profession can influence a court in its interpretation of that scope when it is ambiguous. The ACA holds the position that “it is appropriate for doctors of chiropractic to recommend the use of vitamins, minerals, and food supplements for their patients, to the extent this is not in conflict with state statutes and regulations.”25 When weight loss is at issue, an assessment should be made, and the recommendations should not be for experimental products. The ACA also recommends that the chiropractor’s suggestions be supported by independent laboratory data. 25 The ICA’s policy on nutritional counseling and other ancillary procedures is as follows:
The Doctor of Chiropractic may elect to use appropriate ancillary and rehabilitative procedures appropriate to the area of the subluxation complex dysfunction in support of the chiropractic adjustment, nutritional advice for the overall enhancement of the health of the patient, and counsel for the restoration and maintenance of health. 26
Providing information, as opposed to prescribing for a particular disease, may provide protection for chiropractors operating without a clear scope of practice allowing for nutritional consultation. Although this is a gray area of law, providing information and education rather than prescribing for a particular disease is on legally safer ground. Providing information is arguably protected by the First Amendment’s guarantees of free speech. When one tells a patient, “If I had these symptoms, I would suspect a liver deficiency, and I would try to assist the liver using milk thistle herb,” or “There is a significant body of evidence that daily use of feverfew can prevent migraines,” this is providing information and is arguably protected speech. Although the protections of free speech are historically deeply honored and respected by our courts, the hoped-for protection in these statements might be rejected by a disciplinary body or the courts as merely an artifice meant to allow the practice of medicine, particularly when spoken within the context of a chiropractor-patient relationship.
A prerequisite to understanding this area of law is that the legal distinction that turns a substance into a drug is the purpose for which it is suggested. Any material intended for use to mitigate or cure a disease is a drug. 27 Most cases disciplining chiropractors for nutritional advice therefore involve the prescribing of a supplement for a particular disease condition. 28 When garlic is suggested because of its wonderful taste, it is a food; when garlic is suggested because it will mitigate arteriosclerosis by lowering cholesterol, it becomes a drug in the eyes of the law. Simply educating someone that evidence suggests that garlic lowers cholesterol, however, without mentioning arterial disease, references the nutritional impact on the structure and process of the body without going so far as to prescribe for disease. Such an approach may provide some protection, because it follows the approach taken by a compromise that Congress adopted in 1994 in its regulation of health claims on supplements and other natural products in the Dietary Supplement Health Education Act (DSHEA). 29
This Act addressed the issue of health claims that may be made by supplement manufacturers, allowing claims regarding the impact on processes of the body but not with regard to disease or illness. 30 A supplement manufacturer may claim that calcium supplements improve the strength of bones, for example, but may not claim that calcium mitigates or cures osteoporosis. This distinction does not offer clear protection; important to recognize is that federal food and drug law holds that “articles (other than food) intended to affect the structure of any function of the body of man…” are a drug. 31 Nevertheless, discussing structure rather than disease in which the substance is at least arguably a food, as is the case for many supplements, serves to make the conversation more clearly educational and lessens, if not removes, the intent to prescribe a drug for a particular illness. Because state medical boards largely follow federal food and drug law in interpreting the scope of medical practice acts, framing advice in the same manner Congress allows manufacturers to label supplements under the DSHEA should have some weight in disciplinary matters.
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