January 2007

Lessons from the California practice rights litigation

Part 6: Who's in charge? ‑‑ elective education and training

by David Prescott, MA, JD, DC

In Part Five of this series, I pointed out that since 1976/78, California law has required that 15% of the required 4,000 hours of education and training for a chiropractic license be in "electives." However, the elective subjects are not defined in the act and the requirement has never been implemented by the BCE, or the schools. Obviously, the implementation of this requirement is a complicated matter and I will only be able open up some of the issues here. First, some background.

Early electives

A central theme of this series of articles is that one cannot understand the 1922 California Chiropractic Act without looking at the 1913 Medical Practice Act (MPA). Under the 1913 MPA, the prescribed curriculum for the drugless practitioner's license required the completion of 2,000 hours of specifically delineated subjects and 4,000 hours was prescribed for the physician and surgeon's license. The medical board was authorized to approve the schools offering these respective curricula.

Under the 1913 MPA, a person could elect to become licensed as a drugless practitioner and thereafter elect to complete the additional 2,000 hours of prescribed education and training to become licensed as a physician and surgeon. Many chiropractors prior to 1922 elected to become licensed as drugless practitioners. I do not presently know how many, if any, of these chiropractors actually became licensed as physicians and surgeons.

However, at least one of the early chiropractic colleges that subsequently merged into LACC was approved by the medical board so that its graduates could elect to go on and acquire the broader license (California Chiropractic College). This right to elect to move from one license category to the other was specifically eliminated as to chiropractors in the 1922 Chiropractic Act.

Naturopathy election

There were three groups that worked together to get the 1922 California Chiropractic Initiative Act passed: "straights," "mixers" and those naturopaths who were licensed under a 1909 amendment to the 1907 MPA. (The law allowing for a separate naturopathic license was repealed prior to 1913. As of 2003, California was once again licensing "naturopathic doctors.")

From 1922 to the early 1950s, many chiropractors elected to take postgraduate education and training in the use of the naturopathic materia medica. Indeed, in the 1952 case of Oosterveen v. Board of Medical Examiners, the California Court of Appeal indicated that there were approximately 5,600 chiropractors then licensed in California and more than 1,000 of them were recognized by the BCE as being authorized to "practice the system of naturopathy."

These persons acquired this right by completing education and training beyond the 2,400 hour curriculum prescribed by the 1922 act and pursuant to a system monitored by the BCE. (The Medical Board, the BCE and the Attorney General's Office each agreed in the Oosterveen case that the chiropractors with such elective education and training were entitled to use the naturopathic [natural] materia medica. The Tain court simply ignored the Oosterveen precedent and the plaintiffs' arguments based thereon.)

An ironic twist

The prescribed curriculum for the California chiropractic license was increased in 1948 from 2,400 hours to 4,000 hours and 17% of the 4,000 hours were authorized (but not required) to be in elective subjects. One would think that the hours required to utilize the naturopathic materia medica would have then been made part of an elective curriculum. They were not. What happened?

The forerunner organization to what is now the Council on Chiropractic Education (CCE), in its meeting of February 13th, 1954, informed the then existing chiropractic colleges that the "Council does have the right to remove any college from the accredited list for teaching a course in naturopathy if the college facilities, faculty and administrative talents were employed for this purpose..." (minutes available). All of the chiropractic colleges accepted this mandate.

Organized medicine was making a full‑court press against naturopaths in the 1950s and I am not here quibbling with the actions referred to in the preceding paragraph. It is, however, ironic that the use of the natural materia medica by chiropractors would be circumscribed by a private entity in the same era that California itself increased the hours required for the chiropractic license and granted the chiropractic community the right to include electives. (The Tain plaintiffs named the CCE in their lawsuit and the [present] CCE was most cooperative with the plaintiffs and was dismissed from the action early on pursuant to a settlement agreement.)

Electives ‑‑ some thoughts

I realize that there are a series of vested interests that come into play with respect to any elective education and training but I will make three points and raise three questions here.

First, the elective curricula as a whole must comply with the requirement of the California Chiropractic Act and not "discriminate against any (pre‑1922) school of chiropractic, or any other treatment..." (In future articles, I will discuss four early schools of chiropractic thought: physiological therapeutics; reflex therapeutics; musculoskeletal practice; and "straight" chiropractic.)

Second, it's useful to compare the concept of specialization within organized medicine and the legal profession with certain aspects of the chiropractic profession. Although MDs and lawyers have unlimited scopes of practice, there are laws in California that limit the rights of MDs and attorneys to hold themselves out as "specialists."

Indeed, California law precludes MDs from advertising themselves as "Board Certified" unless they hold credentials from an organization specifically chosen for that purpose by the California Legislature or from an organization expressly approved by the California Medical Board itself. California lawyers cannot hold themselves out as certified specialists unless they have been approved to do so by the state bar.

The "certification" (recognition) issue is more complicated for chiropractors than MDs or lawyers because chiropractors start off with only limited practice rights. That is, there are both scope of practice and "holding one's self out as" issues when it comes to chiropractors.

But, if state agencies are directly involved in regulating those with unlimited practice rights then the state agency (BCE) must regulate the criteria for the electives if any practice or specialization rights are to be acquired through the elective process. Of course, the BCE does not have the right to recognize any practice rights that would exceed the express limitations within the Chiropractic Act itself.

Third, the BCE cannot create the elective subjects and standards out of thin air. That will require input from the schools, the "diplomate" boards of the ACA, and from the ICA, the WCA and other interested parties. The Chiropractic Act requires the completion of 4,000 hours but the CCE presently requires the completion of approximately 4,800 hours for the chiropractic license.

I will leave you with three questions: 1) Why couldn't the 15% "electives" be part of the extra 800 hours and be offered at both the undergraduate and graduate levels for already licensed chiropractors? 2) Why couldn't different schools/organizations offer different elective curricula? 3) How can the non‑discrimination requirement of the Chiropractic Act be satisfied unless different schools and/or other organizations are authorized to offer different, BCE‑approved elective education and training?

(David Prescott is a former prosecutor, law school dean, professor of constitutional law, and a trial attorney with more than 30 years experience. He is also a 1989 Cum Laude graduate of Cleveland chiropractic College. Contact him by calling The Prescott Group, 888‑989‑0855 or find more information at www.prescott‑law.com)