November 2004

ICA files brief in Arkansas PT case

The International Chiropractors Association (ICA) has filed an extensive "Amicus Curie" or friend of the court brief in a landmark case in Arkansas that has significant potential to halt the efforts of the physical therapy profession to expand into chiropractic's unique territory.

The case is Teston vs. Arkansas Board of Chiropractic, in which a physical therapist in Arkansas was found to be performing "spinal manipulations," for which only chiropractors are licensed.

After rigorous review by the Arkansas Board of Chiropractic Examiners, the defendant was found to be in violation of the Chiropractic Practice Act. The Arkansas Chiropractic Board levied a "civil penalty" of $10,000 following the determination that the chiropractic code had been violated.

The PT appealed the decision to the Arkansas Supreme Court, and the ICA stepped up to prepare and file its Amicus Curiae Brief in support of the Chiropractic Board's decision.

ICA was invited to submit a brief in the case by the Arkansas Attorney General, who is defending the Chiropractic Board, and ICA's efforts were coordinated with the chiropractic community in the state to provide for maximum effectiveness.

National physical therapy groups have also intervened on behalf of the PT, and briefs have been filed in the case with the Arkansas Supreme Court by the American Physical Therapy Association and the Federation of State Boards of Physical Therapy.

"The Arkansas State Board appreciates the ICA for its efforts in this important matter and feels this information will be invaluable on chiropractic's behalf in this important legal contest," said Dr. Beverly J. Foster, President of the Arkansas State Board of Chiropractic Examiners.

"This is an historic and important case since the professional boundaries between PT and chiropractic are being challenged by physical therapy in an extra‑legislative and sophisticated manner," said Dr. Henry Rubinstein, who was hired expressly to take on this vitally important case because of his unique background.

Dr. Rubinstein is both an attorney and a chiropractor with decades of experience in Florida. He was therefore able to present chiropractic's position with exceptional clarity.

"The ICA wants chiropractors who have endured decades of harassment to achieve and maintain the recognition they deserve for the benefits that they bestow upon the public that the physical therapists now want to claim as their own," said Dr. Rubinstein.

ICA's brief spoke to the intent behind the PT case, and this is to expand the scope of physical therapy, without following the traditional legislative path. In its brief, ICA told the court, "The ICA cannot sit idly by while organized medicine incorporates chiropractic techniques into its branch of physical therapy in hopes of making chiropractic moot in the eyes of insurance companies, federal programs, and the unsuspecting public."

Key to the PTs' argument is that there is no statutory difference between "spinal manipulation" and other procedures authorized under state law for the physical therapy profession. They have argued that the vagueness of the statute gave the PT in the case the leeway to perform high‑velocity thrust procedures, within his PT license.

The State Board of Examiners as well as the ICA have clearly pointed out that this is simply incorrect and that the only time "spinal manipulation" is mentioned in the physical therapy statute is a specific passage excluding PTs from being authorized to perform these procedures.

The Arkansas Code gives PTs authority to provide: "Manual therapy techniques, including soft tissue massage, manual traction, connective tissue massage, therapeutic massage, and mobilizations, i.e. passive movement accomplished with normal range of motion of the joint, but excluding spinal manipulation and adjustment." Arkansas Code, 17‑93‑102(6)(B)(i)(c).

The Arkansas Chiropractic Board followed due process, considered all the evidence, and allowed the physical therapists to provide their own point of view, but the compelling balance of findings clearly show that the line was crossed, and that the State Board acted correctly to fulfill its responsibility to protect the public.

Thus, ICA's brief concludes with the statement: It is, therefore, the ICA's position that the Arkansas Supreme Court uphold the decision of the Chiropractic Board and leave it to the legislative branch to decide whether physical therapists may practice chiropractic, and in the meantime leave such decisions to the Chiropractic Board, as has the legislature.

"This brief is an historic and extraordinary piece of legal scholarship and every chiropractor should take the time to read these documents," said ICA President Dr. CJ Mertz. "The efforts of Dr. Rubinstein show how complex the issues are, and how important a clear understanding of the boundaries between the professions is going to be in the days ahead, as chiropractic continues confronts the legislative efforts of physical therapy to expand their scope to include core chiropractic procedures."

These important documents are available on ICA's website.