September 2007

Lessons from the California practice rights litigation

by David Prescott, MA, JD, DC

Part 14: The what and/or how of treatment ‑‑ some closing thoughts

On April 2, 2007 I filed a "Petition to Define Practice Rights and to Amend, Repeal and/or Adopt Scope of Practice Regulations, as Needed" with the California Board of Chiropractic Examiners (BCE). The "Petition" was filed on behalf of three of the original plaintiffs in the Tain case plus two additional chiropractors and a chiropractic patient.

There are musculoskeletal practitioners, straights and mixers among the petitioners. In addition, the chiropractic patient believes he is entitled to receive services from practitioners of all schools of chiropractic thought. As required by section 16 of the Act, each of the petitioners' stands in solidarity with the others is supporting an interpretation of the Act so as to not "discriminate against any (pre‑1922) school of chiropractic, or any other treatment."

The petitioners seek to have the BCE define the original intent of the Chiropractic Act (as amended to include electives) based upon a consideration of the entire 1922 Act and all other relevant evidence.

On July 17, 2007 I appeared before a committee of the BCE to discuss a schedule of further hearings for the BCE to address the issues raised in the petition. (The BCE is required to hold public hearings with respect to the issues raised but it may first do part of its work through a committee. The actual "Petition" and a chart presented at the July 17th meeting may be viewed at www.prescott‑law.com > Chiro. Bd. Filings.)

On July 17th the BCE committee agreed the "Petition" would be set for further proceedings and asked that I orally address the issues related to the original intent by focusing on the "big picture" and by filling in the details in writing. Obviously, one of those big picture issues relates to the various schools of chiropractic, including the straight and the musculoskeletal specialist schools of thought

Previously, I indicated that in future articles I would address the straight and the musculoskeletal schools of chiropractic separately. However, since the BCE is now fully engaged with the "Petition," I feel it is appropriate to now close out this series by summarizing some points about the various schools of chiropractic.

The WHAT of treatment

As I have previously indicated, my clients' position is that chiropractors under the 1922 Act were authorized to "treat diseases, injuries, deformities, or other physical or mental conditions." (The diagnostic rights of chiropractors and other practitioners are presumed and not specifically stated.)

The writings of DD, BJ and the other "founding fathers" of the chiropractic profession demonstrate they all recognized that the function of the chiropractor was to treat a majority of human ailments (primary care practice). The early controversy between the straights and mixers was not primarily about what could or should be treated, but how. I will return to this point below

Dr. Beideman, in his history of NCC, points out that "physiotherapy by any other name, such as physical therapy, was in the required curriculum as early as 1908 and that such modalities were then used in the treatment of human ailments." (Emphasis added.) However, over time the use of physical therapeutics shifted away from the treatment of human ailments, per se. Presently, most chiropractic musculoskeletal practitioners utilize physical therapy for only rehabilitation of soft tissue injuries and conditions. That is, they have changed the what of chiropractic services as well as the how.

The musculoskeletal specialist (think dentist) school of chiropractic has tended to seek to direct the entire profession as to both the how and what of chiropractic and move the profession away from the treatment of "the majority of ailments" schools of chiropractic. (Evidence‑based medicine issues arise here ‑‑ clinical and/or basic science. The basic science "living matrix" concepts and those of Dr. Bruce Lipton, etc. become important at this point.) The California Chiropractic Act requires, and provides room for both primary care practice and specialist practice.

The HOW of treatment

Prior to the 1950s, the debate between straights and mixers was not primarily about the what of chiropractic care but about the how. Straight chiropractors claimed that the objective of the chiropractic adjustment was to affect the neurological regulation of body function thereby altering conditions that afflict human beings. They asserted that the effect of adjusting the neurological (early DD ‑‑ neurovascular) regulation of body function was sufficiently comprehensive that the adjustment could and should be a stand alone treatment

The mixers took the position that while the adjustment was an effective form of treatment, many conditions called for additional elements of care; including such things as electrotherapeutics, reflex therapeutics, light, air, and diet, herbs and homeopathics ‑‑ not only as an adjunct to the adjustment but for the "treatment of human ailments."

Either way, both straights and mixers directed their treatment at the human ailments that responded to their respective types of care. What happened?

The shift from using physical therapeutics (and the natural materia medica, etc.) for comprehensive care to specialist‑only care altered the argument within the chiropractic community from one about the how of chiropractic care to one about both the how and the what of care (primary care or specialist care). There is now a way to readily accommodate both perspectives

Electives

As I addressed in Parts 5, 6 and 12 of this series, it is the function of the State to prescribe the basic curriculum and practice rights for all the healing arts. Generally speaking, the Legislature establishes minimum curriculum requirements (often just the total number of hours ‑‑ as with the chiropractic electives) and then the respective administrative boards further define the details of the basic curriculum with input from the profession, etc., and as needed for the safety of the public. Thereafter, the schools/associations and accrediting agencies determine how to best meet the State‑defined curriculum and practice standards

The State‑prescribed chiropractic curriculum does not expressly include education and training with respect to the natural materia medica or reflex therapeutics. Prior to these forms of practice being forced out of the chiropractic curriculum by the predecessor to the CCE in the 1950s they were offered at the post‑graduate level. (See Part 6 of this series for additional information.) However, the 1976/78 amendments to the chiropractic act now mandate that at least 600 hours of the core curriculum be offered in electives. Therefore, the BCE should now define reasonable standards for these electives and allow different schools to offer different electives. That way, one school may choose to emphasize musculoskeletal electives, another the adjustment and still others the natural materia medica and/or reflex therapeutics, etc. and other forms of practice still to be developed.

I am personally convinced that the different factions within the profession are each sure that their viewpoint best serves the interests of the profession and the patient population. Let them follow their path for themselves but stand in solidarity with others who see a different marketplace ahead. The California Chiropractic Act demands nothing less

Thank you Dr. Rondberg and The Chiropractic Journal for publishing this series of articles

(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)