BILL ANALYSIS �
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|Hearing Date:April 15, 2013 |Bill No:SB |
| |381 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 381Author:Yee
As Introduced: February 20, 2013 Fiscal:No
SUBJECT: Healing arts: chiropractic practice.
SUMMARY: Prohibits health care practitioners, other than
chiropractors, physicians, surgeons or osteopathic physicians, from
performing joint manipulation or joint adjustments.
Existing law:
1) Establishes the California Board of Chiropractic Examiners (BCE),
under the Department of Consumer Affairs (DCA), and authorizes the
BCE to license and regulate chiropractors. (Chiropractic Act of
1923 (CA), � 1 et seq.; Governor's Reorganization Plan No. 2 of
2012)
2) Authorizes a chiropractor to practice chiropractic as taught in
chiropractic school or college. (CA � 7)
3) Specifies the schedule of minimum education requirements to enable
any person to practice chiropractic in California includes: (CA �
5)
Group 1- Anatomy, including embryology and histology;
Group 2- Physiology;
Group 3- Biochemistry and clinical nutrition;
Group 4- Pathology and bacteriology;
Group 5- Public health, hygiene and sanitation;
Group 6- Diagnosis, dermatology, syphilology and geriatrics,
and radiological
technology, safety, and interpretation;
Group 7- Obstetrics and gynecology and pediatrics; and
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Group 8- Principles and practice of chiropractic, physical
therapy, psychiatry, and
office procedure.
4) Establishes the Medical Board of California (MBC), under the DCA,
and authorizes the MBC to license and regulate physicians and
surgeons. (BPC � 2000)
5) Establishes the Physical Therapy Board of California (PTB) under
the DCA, and authorizes the PTB to license and regulate physical
therapists and physical therapy assistants. (BPC � 2602)
6) Establishes the Osteopathic Medical Board of California (OMB),
under the MBC, and authorizes the OMB to license and regulate
osteopathic physicians. (BPC � 2450)
7) Establishes the Veterinary Medicine Board of California (VMB),
under the DCA, and authorizes the VMB to license and regulate
veterinarians. (BPC � 4800)
This bill:
1) Defines "joint manipulation" and "joint adjustment" as synonymous
terms that describe a method of skillful and beneficial treatment
where a person uses a direct thrust to move the joint of a patient
beyond its normal range of motion, but without exceeding the limits
of anatomical integrity, as taught in chiropractic schools or
colleges.
2) Prohibits a health care provider, other than a chiropractor,
physician, surgeon or osteopathic physician from performing joint
manipulation or adjustment.
3) Indicates that a health care practitioner who engages in the
unlawful practice of chiropractic is subject to their license being
revoked or suspended and/or other disciplinary action.
4) Specifies that the legislation will not prevent veterinarians from
practicing within the scope of their license.
5) Specifies that the legislation is not intended to restrict
providers working within their scope of practice from treating a
dislocated extremity joint.
FISCAL EFFECT: Unknown. This bill has been keyed "non-fiscal" by
Legislative Counsel.
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COMMENTS:
1.Purpose. This bill is sponsored by the California Chiropractic
Association (CCA) . According to the Author, there are currently
health care practitioners performing manipulations that should not
be, and that are doing so under the argument that their scope does
not say they cannot perform these procedures. Scope is about what
you can do, not what you cannot. There have been reports of
physical therapists performing these manipulations, and even when
reported to the Physical Therapy Board they are not being
reprimanded. This bill would clarify that it is unlawful for those
not trained and educated to perform these procedures. This bill is
needed to provide additional consumer protection against providers
who are currently operating outside their scope of practice by
performing manipulation.
2.Background.
a) Chiropractor Education, Training and Scope. Since 1923,
California has licensed chiropractors. Chiropractors are health
care practitioners who provide drug-free and non-surgical health
care. Based on the beliefs that the body has an inherent power
to heal itself and health depends on a properly-functioning
nervous system, chiropractic care focuses on adjustment of the
spinal column to remove hindrances to the nervous system.
Chiropractors earn a four year doctorate degree and participate
in a year long clinical internship. Chiropractors may also
pursue post graduate specialty training. The scope of practice
for chiropractors is defined in California Code of Regulations
Title 16 � 302:
1) A duly licensed chiropractor may manipulate and adjust the
spinal column
and other joints of the human body and in the process thereof
a chiropractor
may manipulate the muscle and connective tissue related
thereto.
2) As part of a course of chiropractic treatment, a duly
licensed chiropractor
may use all necessary mechanical, hygienic, and sanitary
measures incident to
the care of the body, including, but not limited to, air,
cold, diet, exercise, heat,
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light, massage, physical culture, rest, ultrasound, water, and
physical therapy
techniques in the course of chiropractic manipulations and/or
adjustments.
3) Other than as explicitly set forth in section 10(b) of the
Act, a duly licensed chiropractor may treat any condition,
disease, or injury in any patient, including
a pregnant woman, and may diagnose, so long as such treatment
or diagnosis
is done in a manner consistent with chiropractic methods and
techniques and
so long as such methods and treatment do not constitute the
practice of
medicine by exceeding the legal scope of chiropractic practice
as set forth in
this section.
b) Physical Therapist Education, Training and Scope. Physical
therapists have been regulated in California since 1953.
Physical Therapists help restore function, improve mobility,
relieve pain and prevent or limit permanent physical disabilities
of patients with injuries or disease. They treat patients
including accident victims and individuals with disabling
conditions for back conditions, arthritis, head injuries, carpal
tunnel syndrome, hip fractures, as well as rehabilitation after
surgery, a serious injury or a stroke. Physical therapists
graduate from accredited physical therapist educational programs
that offer degrees at the master's degree level and above. A
physical therapist may also seek specialty certification offered
by the American Board of Physical Therapy Specialties. The scope
of practice for physical therapists is outlined in BPC � 2620 as
follows:
Physical therapy means the art and science of physical or
corrective
rehabilitation or of physical or corrective treatment of a
bodily or mental
condition of any person by the use of the physical,
chemical, and other
properties of heat, light, water, electricity, sound,
massage, and active, passive
and resistive exercise, and shall include physical therapy
evaluation, treatment planning, instruction and consultative
services. The use of roentgen rays and radioactive
materials, for diagnostic and therapeutic purposes, and the
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use of electricity for surgical purposes, including
cauterization, are not authorized
under the term 'physical therapy' as used in this chapter,
and a license issued pursuant to this chapter does not
authorize the diagnosis of a disease.
c) Grade 1-5 Exercises. According to information obtained from
the Physical Therapy Board and the Board of Chiropractic
Examiners, both physical therapists and chiropractors are trained
to utilize oscillatory and peripheral joint mobilization.
Peripheral joint mobilization is defined as mobilizing the joints
of the periphery or limbs. There is a grading system, created in
the mid 1900's, for completing a mobilization. The mobilization
technique used is based on the amount of available joint play.
Thus, the clinician must know what the total range is by
examination through passive movement. The first common
mobilization techniques are sustained joint play movements that
have three grades. These mobilizations aid in decreasing pain
and increasing mobility. Within these three grades the stretch
or hold is approximately five to seven seconds. A description of
the three grades include:
Grade 1. The clinician applies passive movement in a very
small range, approximately 15-25% of the available joint
play range.
Grade 2. Bone is passively moved in a moderate range to 50%
or half of the available joint play range.
Grade 3. Passive force by the clinician causes one bone to
move on the other to the end of the available joint play
range.
The other common mobilization technique is termed oscillatory
mobilization. Oscillatory mobilizations have five grades
associated with them. Grades one to two are used to help
decrease pain within a joint. Grades three to five are used to
increase mobility of joint play. Grade five mobilization is
called a manipulation. The following are grades for oscillatory
mobilizations:
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Grade 1. Slow oscillations within the first 20-25% of the
available joint play range.
Grade 2. Slow oscillations within 45-55% of the available
joint play range, or from the beginning to the middle of
available joint play range.
Grade 3. Slow oscillations from the middle of the available
joint play range to the end of available joint play range.
Grade 4. Slow oscillations at the end of the available
joint play range.
Grade 5. Bone is passively moved to the end-range, and a
fast thrust is performed. This technique is considered a
manipulation.
3. Attorney General Opinion. In 1976, California Attorney General
Evelle J. Younger was asked to provide an opinion regarding the
Chiropractic Act. One question asked, "Are there any circumstances
under which a physical therapist can manipulate or adjust the hard
tissue (i.e., the spine)? If so what are those circumstances?"
The Attorney General (AG) replied in his written legal opinion,
"Adjustment is not a term used in physical therapy. It is a
chiropractic word." He further stated, "?adjusting the spine by
hand for the curing of disease constitutes the practice of
chiropractic and under the Chiropractic Act is beyond the
permissive activity of a physical therapist?Therefore, we believe
that the adjustment and manipulation of "hard tissues," that is
bones and bone structures, is peculiarly a chiropractic technique
beyond the scope of authorized activity for a physical therapist."
4. Department of Consumer Affairs Opinion. In 1980, then Board of
Chiropractic Examiners Executive Secretary, Garrett Cuneo, sent a
letter to Richard Spohn, Director of Consumer Affairs at the DCA.
Mr. Cuneo posed the question, "Can physical therapists engage in
spinal manipulation which is the practice of chiropractic?" The
Chief Legal Counsel at DCA's Legal Office, Mr. Gus E. Skarakis,
received the letter and replied to Mr. Cuneo:
Mobilization of the spine and other joints through the use
of rotation and other
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physical pressure constitutes in our opinion the use of
physical properties
including passive exercise for the treatment of physical
conditions and is
specifically authorized in the physical therapist's scope of
practice. Therefore,
we do not believe that a physical therapist is practicing
beyond his or her legal scope of practice by utilizing such
technique? In our opinion the performance
of joint mobilization by a physical therapist is not the
adjustment and manipulation of hard tissues as a
chiropractic technique. We primarily view this controversy
not as a matter of legal interpretation, but an
interprofessional squabble, often referred to as a 'turf
battle.'
5.Confusion Regarding the Term "Manipulation." Though the AG and DCA
opinions specify that chiropractors manipulate hard tissue and
physical therapists utilize joint mobilization techniques, there
remains much confusion about the term "manipulation." Many physical
therapists describe their work as "physical therapy manipulation" or
"joint manipulation" which reportedly differs from "chiropractic
manipulation" of hard tissues. In addition, other professionals,
such as naturopathic doctors, dentists, veterinarians and physician
assistants use the term manipulation to describe some of the
techniques they use with their patients. In fact, naturopathic
doctors are also taught Grades 1-5 exercises during their training,
but are prohibited by California law from performing Grade 5
exercises in practice. Dentists manipulate the jaw when treating
Temporomandibular Joint Disorders (TMJ). Additionally, physicians
and surgeons specifically use the term manipulation to describe the
manual loosening a stuck joint often performed under sedation or
anesthesia. Thus, it becomes quite difficult to allow any one
profession to exclusively own or define the term.
6. Lack of Consumer Complaints. The CCA reports they have received
"hundreds" of complaints from the chiropractors they represent.
CCA purports that individual chiropractors report they see patients
who complain about receiving "manipulation" or "adjustments" from
professionals who are not licensed by the Board of Chiropractic
Examiners. In response, the CCA has forwarded these complaints to
the Physical Therapy Board (PTB). However, the CCA indicates that
the PTB reports that they never received such complaints. The CCA
is unable to provide any data regarding the number of complaints
received which were reportedly forwarded to the PTB.
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According to the PTB, however, their Consumer Protection Services
program rarely receives complaints that involve physical therapists
performing manipulation. Since 1990, there have only been 5
complaints against physical therapist(s) performing mobilization or
manipulation. The PTB indicates, "In all cases, the allegations
were not substantiated as the physical therapist(s) were deemed to
be practicing within a physical therapist's scope of practice.
Moreover, the 5 identified complaints were not submitted as a
result of patient harm, but rather by chiropractor(s) concerned
with the physical therapist(s) practicing outside their scope of
practice."
Also, the Board of Chiropractic Examiners reports that there have
been no complaints on record of a licensed chiropractor reporting
that a licensed physical therapist in their practice setting is
performing manipulations. There have also been no consumer
complaints against physical therapists performing manipulations
received by the BCE.
Both the Physician Assistant Committee and the Massage Therapy
Council report that there have been no complaints on record of a
physician assistant or a massage therapist performing manipulation.
7.Arguments in Support. The Sponsor indicates, "Patients must be
adequately protected from unauthorized, unqualified and improper
application of manipulation or adjustment. By defining that only
doctors of chiropractic, physicians and surgeons and osteopathic
physicians and surgeons are allowed to perform joint manipulation or
spinal adjustment you are ensuring that patients seeking this form
of treatment receive it from providers best trained to perform it."
8.Arguments in Opposition. The Independent Physical Therapists of
California (IPTs) indicate physical therapists have been training
extensively to provide joint mobilization/manipulation. They note,
"Physical therapists have been performing manual therapy safely for
decades, including all degrees of joint mobilization/manipulation.
IPT recognizes that some patients with spinal disorders prefer to
seek care from chiropractors, some prefer acupuncture, some prefer
physical therapy and some may prefer medications, injections and
surgery. The physical therapy profession in California has never
attempted to restrain the trade of any of these health care
professions by attempting to pass legislation overturning the
legality of their treatment methods."
The California Naturopathic Doctors Association opposes the bill
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unless amended. They argue, "Naturopathic Doctors receive almost
400 hours of combined physical medicine joint manipulation in
California?In fact, joint manipulation classes are often taught at
naturopathic medical schools by Chiropractic Doctors?The lack of
inclusion of NDs in SB 381 would serve as an obstacle for the newly
opened Bastyr University California as it would prohibit
naturopathic medical students from the ability to learn and train
in joint manipulation, which is currently part of the required
curriculum at all naturopathic medical schools."
Mount St. Mary's College notes in their opposition letter, "MSMC
strongly opposes SB 381 because research on manipulation supports
physical therapists performing joint manipulation as among the
safest of all health care providers? The physical therapy
professional liability insurance program has not identified any
trends relative to manipulation that would indicate the procedure
presents a risk factor that should be considered in determining
professional liability rates for physical therapists. The
Legislature should require evidence of public harm or risk before
introducing legislation that restricts previously authorized
practice?further, graduates of physical therapy education programs
are required to be examined with respect to their knowledge of
joint manipulation in order to become licensed as a physical
therapist in California?Treatment interventions do NOT fall under
the exclusive domain of any one specific profession or group of
practitioners?SB 381 is an attempt to legislate clinical practice,
which is the purview of the Professional [licensing] Boards."
9.Policy Issues for Consideration. Though the Sponsor has stated that
the intent of the bill is to protect the public from all
unscrupulous professionals, there appears to be a specific focus on
restricting the professional activities of physical therapists as a
result of this legislation. For example, the Sponsor and Author's
office indicate in written materials submitted to the Committee,
"There have been reports of physical therapists performing these
manipulations, and even when reported to the Physical Therapy Board
they are not being reprimanded." However, the Physical Therapy
Board reports to the Committee that it has no record of such
complaints. The Sponsor also reports there have been "hundreds of
complaints" received from chiropractors that have been forwarded to
the Physical Therapy Board. However, the Sponsor is unable to
provide any data to substantiate these complaints. Moreover, when
the Committee checked with other licensing boards under the DCA,
including the Board of Chiropractic Examiners, the boards reported
little to no complaints from consumers or disciplinary action taken
against a licensee relating to the issue of manipulation or
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adjustment . If there are in fact consumers who complain to their
chiropractors about prior treatment from non-chiropractors, it is
plausible that these patients may not fully understand the
difference between the adjustment and manipulation of hard tissues
authorized for chiropractors and the mobilization and manipulation
of joints authorized for physical therapists to perform.
This appears to be a long-standing disagreement as evidenced by the
opinions dating back to 1976. Arguments from both sides seem to be
based on anecdotal evidence and discrepancies about semantics. As
noted in the 1980 DCA opinion, "We primarily view this controversy
not as a matter of legal interpretation, but an inter-professional
squabble, often referred to as a 'turf battle.'" Is making the
proposed changes in statute to define joint manipulation and
adjustment the appropriate avenue to take in order to clarify this
scope battle ?
As noted in the 1976 Attorney General opinion, "The definition
adopted by the Board of Chiropractic Examiners in section 302,
Title 16, California Administrative Code, reveals that physical
therapy and chiropractic each involve the use of physical agent
used by the other . We do not believe that this common use of
agents presents a major problem because a chiropractor is
prohibited by section 2630 from practicing physical therapy as such
and a physical therapist is prohibited by section 15 of the
Chiropractic Act from practicing chiropractic." As such, it
appears that the intent of the manipulations is what matters. The
intent of chiropractic manipulation of hard tissues, such as the
spine, is to cure disease. The intent of physical therapy
mobilization and manipulation is to provide physical or corrective
rehabilitation to reduce pain.
There obviously exists serious contention between the two
professions which has led to reactive stances regarding this
legislation. Perhaps the most judicious way to proceed is to
concede that both professions are concerned with consumer
protection, thus the specific activities of each profession need to
be clarified. Specifically, both chiropractors and physical
therapists are trained during their educational programs to perform
Grade 1-5 exercises, which has led to considerable confusion about
which profession is allowed to perform joint manipulation and joint
adjustments, specifically since Grade 5 is considered a
manipulation. The Committee may wish to consider whether it should
direct the Board of Chiropractic Examiners and the Physical Therapy
Board to collaborate and review the Grade 1-5 exercises to clarify,
according to each profession's scope of practice, if it is in fact
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appropriate for both professions to teach these exercises. If the
two Boards are unable to reach a conclusion, a legal opinion may
help to clarify this issue.
SUPPORT AND OPPOSITION:
Support:
California Chiropractic Association (Sponsor)
Los Angeles College of Chiropractic
65 letters from licensed chiropractors
21 letters from individuals
Oppose Unless Amended:
California Naturopathic Doctors Association
Opposition:
Independent Physical Therapists of California
Mount St. Mary's College
104 letters from licensed physical therapists
Over 300 letters from individuals
Consultant:Le Ondra Clark, Ph.D.