Thirteen years ago, the Wisconsin Chiropractic Association (WCA) "agreed to settle Federal Trade Commission allegations that [the association] orchestrated a conspiracy among WCA members to increase prices for chiropractic services and to boycott third-party payers to obtain higher reimbursement rates." The result was a settlement with no admission of guilt and no payment of penalties, but an agreement to refrain from similar activities.1
In response, Barbara Showers, then-director of Wisconsin's Department of Regulation & Licensing's Office of Education and Examination, noted that the Wisconsin test was "not as up-to-date on current teaching." She added that the NBCE's test was much broader in scope than the state test.2
The WCA ultimately lost its civil suit and Part IV remained in effect as the practical exam for chiropractors wishing to practice in Wisconsin. But in 2009, a new law passed adding back the Wisconsin practical exam in addition to the Part I-IV exams. It has been suggested that the $170,000 WCA lobbying budget that year finally brought back the home-grown Wisconsin exam.
But the world has changed since Wisconsin's original home-grown test was developed, a point the creators of the current Wisconsin exam may have missed. It took the NBCE six years to develop its Part IV exam before it could be considered fair and defensible. The process included thousands of hours of staff time to ascertain the "financial, logistical, psychometric and legal issues involved." Every year, the NBCE spends more than $300,000 to continue that process.4
While the Wisconsin Chiropractic Examining Board has yet to respond to most of the questions surrounding the test, it is highly unlikely that it has the budget to meet the same level of defensibility the NBCE has achieved with Part IV. Not only did the Wisconsin board not respond to most of the questions posed to it, but it took them more than a week from the time we first e-mailed their executive director to essentially tell us they were too busy to answer the questions.
Worse yet, there appears to be a lack of communication or understanding between the Wisconsin board and the Wisconsin Department of Safety and Professional Services, which oversees the chiropractic board. According to the department's public-relations officer, "The state exam for chiropractors incorporates a practical exam, whereas the Part IV exam does not." (Emphasis added) Is the state of Wisconsin truly not aware that Part IV is a practical exam, featuring 10 patient encounter stations and five chiropractic technique stations?
The addition of the Wisconsin "Part V" exam also appears to be having a significant impact on the number of new chiropractors in the state. "The first year the state test was required again, 11 people took it. Only one of them passed on the first try; six passed altogether after subsequent attempts."5
The obvious solution to the situation will likely be handled in the courtroom. It will involve a group action by frustrated DCs, many of whom will be Wisconsin citizens trying to return to their native state to practice.
Wisconsin caps damages from a civil action against an individual state employee at $250,000, but has no cap on a state agency. It prohibits punitive damages from being recoverable against a single state employee, but again, has no such restriction when it comes to lawsuits against state agencies.6
Those DCs who have failed previous Wisconsin exams will likely be joined by those who failed the recent exam, administered April 18-19, 2013. They will probably sue the board on the basis that the home-grown exam does not meet the testing standards required for a professional licensing exam. They will point to the NBCE Part IV and other health professional exams. (Word on the street suggests the Wisconsin board has already been told the exam is indefensible.)
They may also point to a recent lawsuit in Missouri in which a single doctor of chiropractic won a $6.2 million judgment from the Missouri Board of Chiropractic Examiners. In this case, the chiropractor sued the board members for gross negligence. The Missouri Court of Appeals ultimately affirmed the decision with these comments:
"While we agree with the board members that the public's protection is the primary purpose of professional regulation, we do not agree that means the board members owe no other duties to anyone else. Indeed, (state law) recognizes that board members may be liable for gross negligence in the performance of their official duties. To whom would the board members be liable for this gross negligence? Only to the public at large? We think not."7
The front-page article in this issue of Dynamic Chiropractic is not the first to shine a light on this issue. As of press time, at least three Wisconsin media outlets have also asked these questions.8-10
The $6.2 million question is: What will the Wisconsin board do now that it is squarely in the media spotlight (and not for a good reason)? It has two choices: If it continues failing DCs who take the state exam after passing Parts I-IV of the national exam, it increases the likelihood of a lawsuit. If the board repents and begin passing a larger percentage of examinees, it will show that the exam is even more subjective than suspected.
Either way, it is likely that Wisconsin Attorney General J. B. Van Hollen will take a hard look at this situation given the potential legal liability. Letting this go to court will not only be expensive, but create bad PR for current governor Scott Walker, who will be making his 2014 re-election bid. We will not have to wait long to see which choice the board makes.
References
- "Wisconsin Chiropractic Association and Its Director Agree to Settle FTC Charges of Price Fixing." Dynamic Chiropractic, May 1, 2000.
- Devitt M. "Wisconsin Chiropractic Association Sues State Over Testing Change." Dynamic Chiropractic, July 28, 2003.
- Wisconsin Chiropractic Licensing Practical Examination: Candidate Guide. Wisconsin Dept. of Safety and Professional Services.
- Crownfield P. "Examining the Wisconsin State Exam." Dynamic Chiropractic, June 1, 2013.
- Elbow S. "Chiropractors Sue State, Want to Use Tougher Test." Wisconsin Capital Times, May 20, 2003.
- State Sovereign Immunity and Tort Liability. National Conference of State Legislatures.
- Gorman JD. "Licensing Board Must Pay $6.2 Million Judgment." Courthouse News Service, Feb. 17, 2012.
- Millard S. "Waukesha Resident Fighting for Chiropractic Exam Repeal." Waukesha Patch, April 5, 2013.
- Craver J. "Wisconsin's Chiropractic Civil War." The Capital Times, March 21, 2013.
- Cullen S. "At Issue: Should State Exam Requirement Be Cut for Chiropractor License?" Wisconsin State Journal, April 8, 2013.
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