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 By Crystal
Conde
Associate Editor TEXMEDicine
The Texas Medical
Association and the Texas Orthopaedic Association
(TOA) have prevailed in an eight-year legal battle
stemming from podiatrists' definition of the foot.
Since 2002, TMA and TOA had been locked in
litigation with the Texas State Board of Podiatric
Medical Examiners and the Texas Podiatric Medical
Association over podiatrists' scope of practice. The
case finally concluded in August, when the Texas
Supreme Court denied the Texas Podiatric Medical
Association's motion for rehearing.
In June, the Supreme
Court of Texas declined to review an appellate
court's previous decision rejecting the podiatry
board's rule that would have allowed podiatrists to
treat ankle injuries.
Susan Henricks, JD, an
attorney representing TMA and TOA, says the Supreme
Court decision is a milestone in the case.
"I think the appellate
court's ruling is a landmark decision because it
more clearly states that if the legislature defines
scope of practice, then only the legislature can
change it. At the legislature, all interested
parties, including insurance companies, the public,
podiatrists, medical doctors, and others, have an
opportunity to participate and can have a voice,"
she said.
David Teuscher, MD, a
Beaumont orthopedic surgeon, says the Supreme
Court's choice not to review the appellate court's
decision is a major boon for physicians.
"This case represents
a nearly 10-year odyssey for TMA and TOA," he said.
"If the appellate court's ruling becomes the law of
the land; that will mean in Texas a regulatory
agency can't rewrite the scope of practice for its
licensees without first going to the legislature for
a change in statute."
TMA maintains that
expanding the scope ofpodiatry requires an amendment
to the Podiatry Act, the state law governing the
podiatric medical treatment and diagnosis of
diseases and disorders of the human foot.
TMA strongly advocates
for the safety of patients and believes any
individual making a mental or medical diagnosis
should be appropriately educated, trained, and
licensed to provide such care.
At press time, TMA and
TOA were negotiating with the podiatry association
to draft scope-of-practice legislation with input
from both parties to take to lawmakers next session.
"I'm fully engaged in
coming to a solution," said Dr. Teuscher, a member
of the TMA Board of Trustees. "The matter needs to
be settled at the legislature. Medical doctors need
to be engaged in drafting the legislation that gets
filed."
Samuel Nava, Jr., DPM,
president of the Texas Podiatric Medical
Association, says he's disappointed in the Supreme
Court's decision. But he emphasizes the association
is committed to contributing to proposed legislation
on which both sides can agree.
"The Texas Podiatric
Medical Association is pursuing continued
negotiations with TOA and TMA to develop a bill that
will result in the citizens of Texas receiving the
best possible foot and ankle care," Dr. Nava said.
Dr. Nava adds that he
hopes the agreed-upon legislation will clear up
confusion among practitioners, hospital
administrators, and patients.
"We're not expanding
our scope of practice. We want to codify with
legislation what we can and can't do so that
everyone understands," he said.
Stephen Brotherton,
MD, speaker of the TMA House of Delegates and a Fort
Worth orthopedic surgeon, encourages physicians to
work with TMA, county medical societies, and their
specialty societies to ensure their voices are heard
during the next legislative session.
"Physicians need to be
unified and involved in organized medicine if they
want to protect their patients," he said.
A Lengthy Lawsuit
In 2008, the appeals
court said the podiatric board was wrong when it
adopted a rule in 2001 that defined the foot as "the
tibia and fibula in their articulation with the
talus, and all bones to the toes, inclusive of all
soft tissues (muscles, nerves, vascular structures,
tendons, ligaments, and any other anatomical
structures) that insert into the tibia and fibula in
their articulation with the talus and all bones to
the toes."
The appeals court
judges concluded that the board "exceeded its
authority when it promulgated the rule and that the
rule is invalid."
TMA and TOA sued the
board in 2002, contending that the board's change in
definition illegally expanded podiatrists' scope of
practice.
Then-Texas Attorney
General John Cornyn agreed and issued an opinion
that the podiatry board acted outside its authority.
He added that only the Texas Legislature has the
power to establish or change the scope of practice
for podiatrists, physicians, or any other health
care professionals. The podiatry association then
filed a "friendly suit" against the podiatry board
seeking a court ruling favorable to the view that
the board could expand the scope of the podiatry
license through rulemaking. When TMA learned of the
suit, it intervened.
Dr. Teuscher says
former Attorney General Cornyn got it right. In an
affidavit filed in the case, Dr. Teuscher
underscores the limits to podiatric practice.
"The statute
regulating podiatry limits the Texas State Board of
Podiatric Medical Examiners to testing and
qualification of podiatrists on diagnosis and
treatment of ailments of the foot only. As an
undisputed matter of anatomy, the human foot
includes only bones or tissues below but not
including the ankle joint," he wrote.
In early 2009, the
podiatric medical examiners' board published in the
Texas Register a new administrative rule that
proposed striking the original definition of the
foot and replacing it with an amendment that would
potentially expand podiatrists' scope even further.
The proposed rule would have allowed podiatrists to
perform surgical and nonsurgical procedures on the
bones and tissues of the lower leg below the knee
cap, including "fractures that extend into the ankle
joint."
In a letter to the
podiatry board, TMA urged it not to adopt the
proposed changes. "These types of injuries are among
the most challenging to optimally treat, requiring
the utmost skill and experience found among highly
trained and experienced board-certified orthopedic
surgeons," the letter stated.
Recently, the podiatry
board withdrew the rule in light of the litigation
and ongoing negotiations to reach some agreement
with TMA and TOA on an expanded scope of practice
for podiatrists.
Patient Safety at Root
of Lawsuit
Dr. Teuscher has been
a TMA witness in ensuring podiatrists practice
safely within their professional capacity throughout
the course of the lawsuit.
"I'm most concerned
that some Texas podiatrists haven't been qualified
through training or board certification to a level
equal to a board-certified orthopedic surgeon to
treat the human body at or above the ankle joint,"
Dr. Teuscher said.
He emphasizes that the
"unsuspecting public" could potentially be harmed
when health care practitioners with limited training
exceed their professional abilities.
A single high standard
of care delivered by a well-trained team of
professionals supervised by a physician and centered
on each patient's needs is a TMA priority. (See "TMA
Champions Scope-of-Practice Bill.")
Physicians say the legal battle with the podiatry
board isn't just a matter of law; it's also a
patient health and safety concern.
Dr. Brotherton also
has concerns regarding podiatrists' training.
"If you want to be a
physician, you need to have a physician's
education," he said.
According to Dr.
Teuscher, the training programs available to
podiatry graduates are inconsistent. For example,
the focus of residency programs varies: some
concentrate on medical training, some on nonsurgical
orthopedic concerns, and some on surgery.
He says the podiatry
board should require more rigorous, uniform training
of its constituents across the board and should
concentrate its efforts on patient safety.
"The podiatry board
needs to make sure podiatry is being practiced
safely in Texas and that the standard of care is
being adhered to," Dr. Teuscher said.
He predicts
nonphysician practitioners will continue to attempt
to expand their scope of practice.
"We're seeing allied
health professionals continually taking a shorter
pathway to practicing medicine," he said. "They're
pushing the envelope for greater scope, but
typically they aren't increasing the vigor of their
training programs or certification standards."
TMA Familiar With
Scope War
TMA has been blocking
attempts by nonphysician health professionals that
would allow them to practice medicine without going
to medical school. Scope of practice has been one of
TMA's hot-button issues for years. Currently, the
association also is involved in litigation against
the Texas Board of Chiropractic Examiners (TBCE) and
the Texas State Board of Examiners of Marriage and
Family Therapists.
In 2008, TMA persuaded
the state's Licensed Chemical Dependency Counselor
(LCDC) Program not to allow counselors to diagnose
substance disorders. State law allows only properly
trained physicians to make such medical diagnoses,
TMA asserted.
The LCDC Program, part
of the Professional Licensing and Certification
Unit, Division of Regulatory Services of the Texas
Department of State Health Services, proposed a rule
under "Scope of Practice" that permitted chemical
dependency counselors to "diagnose substance
disorders, but anything other than a mental health
diagnostic impression [was required to] be
determined by a qualified professional."
TMA objected because
"the proposed rule would expressly permit LCDCs to
engage in the practice of medicine by making a
medical diagnosis."
TMA's lawsuit against
the marriage and family therapists centers on the
board's attempt to allow therapists to diagnose
medical conditions. TMA went to court after the
board adopted rules to that effect in 2008.
TMA says in its
lawsuit that "because marriage and family therapists
are neither licensed nor trained to practice
medicine," giving them the ability to diagnose
mental and physical conditions would diminish the
quality and standards of the practice of medicine.
The suit is pending in
Travis County District Court after TMA asked the
court to declare the board's rule invalid and to
prohibit the board from enforcing it.
TMA's lawsuit with the
TBCE is ongoing. When the board didn't back down in
its effort to expand chiropractors' scope of
practice, TMA filed suit in 2006.
The medical
association asked a Travis County district court to
invalidate the chiropractic board's rules that would
permit chiropractors to perform clinical needle
electromyography (EMG) – a diagnostic
procedure – and spinal manipulation under anesthesia
(MUA) – a surgical procedure – because both
procedures constitute the clinical and legal
practice of medicine. Both procedures can cause
serious patient injuries if improperly performed by
unqualified practitioners, TMA maintains.
In 2007, the Texas
Medical Board (TMB) joined as a party in the
lawsuit. In May 2009, TBCE adopted a rule to state
that MUA was within the scope of practice of a
chiropractor.
In November 2009,
Austin District Judge Stephen Yelenosky ruled that
state law prevents chiropractors from performing EMG
or MUA. He granted a TMA and TMB request for a
partial summary judgment against TBCE and the Texas
Chiropractic Association.
Then in mid-August,
the judge said he intends to limit chiropractors'
right to diagnose medical conditions. He upheld
chiropractors' authority to diagnose conditions that
do fall within their scope.
A final ruling was
expected in September.
David Bragg, JD, an
attorney representing TMA in the case, says allowing
chiropractors to diagnose medical conditions has
patient safety implications.
"The scope-of-practice
rule the chiropractic board developed authorizes
chiropractors in Texas to diagnose a whole host of
medical conditions that they, by their own
admission, can't treat. The rule is so broad
chiropractors can diagnose cancers, muscular
dystrophy, and even Lou Gehrig's disease. We [TMA]
don't think chiropractors have any business doing
this," Mr. Bragg said.
Dr. Teuscher stresses
the Texas Chiropractic Act limits chiropractors to
an examination, evaluation, or analysis of the
biomechanical condition of the spine and the
musculoskeletal system. He gave a deposition in the
case on behalf of TMA in July.
"I think Judge
Yelenosky got it right. If you're going to stick
needles in people's muscles, you need to be a
medical doctor who specializes in those types of
procedures and who has the appropriate training and
board certification," Dr. Teuscher said.
Mr. Bragg says some
allied health professionals will continue to work to
expand their scope of practice.
"It has required a
fair level of vigilance to make sure health
professionals are restricted to what the legislature
has outlined they can and can't do. I think
organizations like TMA will need to continue to be
aware of these efforts," he said.
Crystal
Conde can be reached by telephone at (800) 880-1300,
ext. 1385, or (512) 370-1385; by fax at (512)
370-1629; or by e-mail at Crystal
Conde.
SIDEBAR
TMA Champions
Scope-of-Practice Bill
During the 2009
legislative session, TMA backed Senate Bill 532,
which ensures physicians maintain supervision and
accountability of physician assistants and/or
advanced practice nurses in retail health clinics.
Authored by Sen. Dan Patrick (R-Houston) and
sponsored in the House by Rep. Garnet Coleman
(D-Houston), the bill took effect last September.
SB 532 increases from
three to four the maximum number of physician
assistants, advanced practice nurses, or nurse
midwives to whom certain duties may be delegated by
a physician at a primary practice site, alternate
practice site, or facility-based practice site. SB
532 also ensures the Texas Medical Board has proper
oversight of physicians' delegation of prescriptive
authority and other responsibilities to allied
health practitioners at retail health clinics.
For more information
about TMA's scope-of-practice advocacy and to access
resources, visit the TMA
website. |
