Analysis of 302
The provisions of Rule 302 are not substantially different from the provisions of the regulation with the same number that was adopted in August of 1987.
Sub-paragraph (a) (1) contains the traditional authorization for chiropractors to manipulate all of the joints in the human body along with the muscles and connective tissue incident thereto.
Sub-paragraph (a) (2) contains a three-part authorization defining and setting forth those treatment modalities that chiropractic doctors can employ in addition to the manipulation and/or adjustment of the joints in the human body. The first part of this authorization authorizes the chiropractor to "use all necessary mechanical, hygienic, and sanitary measures incident to the care of the body, including, but not limited to, ..." (emphasis added). This is a verbatim quote of what is also contained in Section 7 of the Chiropractic Act. As was stated in People v. Fowler, (1938) 32 Cal. App. 2d 737, 744, 84 P.2d 326, this authorization, if it were not limited by sub-paragraph (a) (4), would constitute an authorization for chiropractors to have an unlimited scope of practice. It is also important to keep in mind that since this phrase is followed by the phrase "including, but not limited to," it is clear that none of the language that follows this authorization constitutes a limitation thereof. The second part of this authorization lists some of the mechanical, hygienic, and sanitary measures that may be employed by chiropractors. This authorization includes "air, cold, diet, exercise, heat, light, massage, physical culture, rest, ultrasound, water..." In short, this lists the entire physical therapy regimen of treatment.
To further make this point clear, there is a third authorization for chiropractors to use "physical therapy techniques in the course of chiropractic manipulations and/or adjustments." The purpose of this third section is to make clear that chiropractic doctors are authorized to employ the techniques of physical therapy functioning within their role as chiropractic doctors. Originally, during the course of the litigation surrounding this regulation, CCAPTA insisted that as a part of the settlement, a chiropractic doctor be required to manipulate each time physical therapy techniques were performed. Obviously, this was unacceptable because it would have required, in some instances, a chiropractic doctor to commit malpractice by forcing a chiropractic doctor to manipulate, even when manipulation may be contra-indicated due to a particular patient's condition during a particular office visit. It was CCAPTA's backing down on this demand that permitted this litigation to be settled.
Sub-paragraph (a) (3) deals with the conditions and diseases that can be treated by a chiropractic doctor. The purpose behind this sub-paragraph is to make clear that the restrictions on chiropractic scope of practice are a function of the treatment modalities authorized, and not a function of the conditions or diseases that may be treated. This sub-paragraph specifically states that "a duly licensed chiropractor may treat any condition, disease, or injury in any patient, including a pregnant woman and may diagnose." The only limitations are those set forth in Section 10 (b) of the Chiropractic Act, which prohibits chiropractors from advertising for the treatment of venereal disease or conditions relating to the menses of women. This sub-paragraph goes on to make clear that while a chiropractor may diagnose and treat, such authorization is limited by sub-paragraph (a) (4). For example, while a chiropractor may diagnose, a chiropractor cannot use this authorization to authorize exploratory surgery.
Sub-paragraph (a) (4) sets forth the limitations on a chiropractic doctor's legal scope of practice. None of these restrictions are new since it has always been clear that chiropractic doctors could not perform surgery, deliver babies, practice obstetrics, practice dentistry, practice optometry, prescribe drugs, use lithotripters, use ultrasound on a fetus, or perform a mammography. Significantly, CCAPTA's claim that chiropractors are prohibited from employing physical therapy in their practice is belied by the fact that the subject of physical therapy is nowhere mentioned in sub-paragraph (a) (4). Without such a listing, it is clear that chiropractic doctors can perform such treatment modalities.
Sub-paragraph (a) (5) is unchanged from the 1987 regulation and is unchanged from the 1967 regulation. This section authorizes chiropractors to use "vitamins, food supplements, foods for special dietary use, or proprietary medicines..."
Sub-paragraph (a) (6) authorizes chiropractic doctors to use diagnostic x-ray and thermography. This is unchanged from the 1987 version of this regulation. This sub-paragraph also authorizes chiropractic doctors to use diagnostic ultrasound for neuromuscular skeletal purposes.
Sub-paragraph (a) (7) does not define the legal scope of chiropractic practice. Rather, this sub-paragraph relates to advertising and how chiropractic doctors may present themselves to the public. Specifically, this sub-paragraph prohibits chiropractic doctors from holding themselves out as being licensed as anything other than a chiropractor unless the chiropractic doctor holds such a license and prohibits the use of the term "physical therapy" in advertising. The purpose of this restriction is to prevent any confusion by the public between licensed classes of providers.
The Chiropractic Defense Fund
"Rule 302 -- The Big Cover-Up" drafted by the Chiropractic Defense Fund is typical of the sort of broad brush diatribe in which self-appointed saviours of the profession typically indulge. Many claims and charge are made, but no evidence and no alternatives are offered. The approach of Drs. Edwards and Tain and their so-called Chiropractic Defense Fund reminds me of a similar disaster perpetrated in California by earlier self-appointed saviours.
In 1961, the Chiropractic Research Education and Equality Society (CREES) decided to save the chiropractic profession on the issue of the chiropractic scope of practice by filing a lawsuit against both the California Medical Board and the California Board of Chiropractic Examiners. These chiropractors had no legal training or background and apparently their lawyers had very little knowledge in the area of health care law. As a result, the trial court ruled that the only thing that chiropractors could do for the purposes of treatment was to adjust. Nothing else that a chiropractor did could be for the purpose of treatment. This new definition of the chiropractic scope of practice, foisted upon the chiropractic profession by these self-appointed saviours, was then adopted in the form of a regulation known as Rule 302. It was this regulation that has burdened the chiropractic profession in California for the last 30 years. It was this regulation that was being used by organized medicine to begin to peel off one practice right at a time. In 1974, three chiropractors in Sacramento were jailed for using ultrasound. In 1983, a chiropractor in San Diego was sued for performing colonic irrigations. The right of a chiropractor to treat a pregnant woman was then challenged.
In light of this history, it is astonishing that Drs. Edwards and Tain question why Rule 302 had to be changed. Drs. Edwards and Tain displayed the same legal ignorance and same arrogance as was displayed by the CREES group in 1961. They claim that in order to draft a complete and accurate definition of the legal scope of chiropractic practice under the Chiropractic Act, that it is necessary to "consult with practicing chiropractors, chiropractic colleges, and other learned sources for input." Why? There is no reason to believe that attorneys are knowledgeable on chiropractic methods and techniques and there is no reason to believe that practicing chiropractors have the legal training for drafting a law defining the legal scope of chiropractic. Nonetheless, there was an extensive consultation regarding Rule 302. There was more notice and consultation regarding Rule 302 than there has ever been in the history of this profession in any state.
When the California Chiropractic Association first prepared a draft of Rule 302, copies of it were mailed to the entire chiropractic profession in California in order to obtain written input. Further, the CCA then held hearings in Northern and Southern California to get additional input from any doctors who were interested. Where were Drs. Edwards and Tain then? Based on this feedback, the CCA made some changes to Rule 302 before the CCA submitted Rule 302 to the California Board of Chiropractic Examiners (CBCE). This process was conducted over a 15 month period. The ICAC and all five California chiropractic colleges were consulted regarding Rule 302 and all of these groups defended Rule 302 during the subsequent litigation.
Further, the CBCE sent copies of the proposed language to every chiropractor in California and held hearings in both Northern California and Southern California in order to get input from every member of the profession. Written input was also solicited. Where were Drs. Edwards and Tain in 1987?
As a result of the litigation with organized medicine, certain changes were made to Rule 302 in 1991. Copies of the notice regarding these changes were mailed to every member of the chiropractic profession. These notices solicited written comments and requested oral testimony. The hearing to take oral testimony was conducted on June 22, 1991. Where were Drs. Edwards and Tain then?
Conclusion
Rule 302 constitutes a significant step forward for the chiropractic profession in California. It is not a perfect regulation, totally lacking in ambiguity. This is not surprising since it is based upon a 1922 initiative act that was not a model of clarity. Nonetheless, the chiropractic profession can now put this issue behind it in California and begin to deal with other serious challenges facing the profession: encroachment of ERISA plans and HMOs, managed care, and the damage done by practice management companies. These are the challenges to which chiropractic's energies should be devoted, instead of wasting them on yet another internal struggle over the scope of practice.
Michael Schroeder, Esq.
Santa Ana, California
Michael Schroeder has formed more than 300 chiropractic-medical practices since 1982. He is the current vice president and general counsel for the American Acupuncture Council, and for the last twelve years has been the vice president of the National Association of Chiropractic Attorneys (NACA). In 1995, NACA honored Mr. Schroeder as their "Attorney of the Year."