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2014 Scope of Practice Modifications
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Prepared by Kevin Goodno, Fredrikson & Byron, P.A.

Summary

The result of work by the Minnesota Chiropractic Association to strengthen, modernize and centralize Minnesota’s chiropractic scope of practice will became effective August 1, 2014. The changes were not intended to expand or constrict the chiropractic scope of practice as it was being enforced by the Minnesota Board of Chiropractic Examiners. However, the new changes are important for the future of the profession because the new language helps avoid possible future disagreements about the interpretation of the chiropractic scope of practice.

Accordingly, the intent of the law was to bring clarity to ambiguous language, to strengthen the legal authority supporting current chiropractic practices, and to modernize the language used in the scope statute. Some key examples of this are with the definition of “chiropractic services,” the definition of “diagnosis,” and the changes to the language surrounding the linkage between “therapeutic services” and the “chiropractic adjustment.”

The 2014 scope modifications were enacted through the strong support of many legislators including Rep. Patti Fritz (DFL-Faribault), Rep. Tara Mack (R- Apple Valley), Sen. John Hoffman (DFL-Anoka), Sen. Sean Nienow (R- Cambridge), and Sen. Kathy Sheran (DFL-Mankato).

Below is a detailed background and explanation on the 2014chiropractic scope of practice changes.

Background

On May 21, 2014, Governor Mark Dayton signed into law modifications to the chiropractic scope of practice in Minnesota. The changes, effective August 1, 2014, were the result of over seven years of work by the Minnesota Chiropractic Association (MCA) to strengthen, modernize and centralize Minnesota’s chiropractic scope of practice.

The chiropractic scope of practice was first enacted on March 13, 1919 with substantial changes in 1927 and 1975. Over the years there have been advances in knowledge, technology, and educational practices and requirements. Enforcement has kept pace with these advances, but the language of the chiropractic scope has not. Parts of the scope were dated, incomplete and in some cases obsolete. The scope changes modernize, centralize and strengthen the chiropractic scope of practice to add clarity to Minnesota law resulting in ensured fairness in application, consistent enforcement over time, and a better understanding of professional requirements by both the public and the chiropractic profession.

The new law was not intended to expand or constrict the chiropractic scope of practice as it was being enforced by the MBCE. However, the new changes are important for the future of the profession because the new language will help avoid possible future disagreements about the interpretation of the chiropractic scope of practice.

The intent of the law was to bring clarity to ambiguity. For example, words and sets of words are interpreted differently by different people. Accordingly, if a sentence can be interpreted a number of different ways, clarity was sought to minimize the variations in interpretation.

The intent of the new law was to strengthen the legal authority supporting the current chiropractic practices. If there is a conflict between a statutory law and an administrative rule, the law wins. So, provisions in rule were moved to statutory law, and provisions that were only implied or inferred were stated in law.

And, the intent of the law was to modernize the language used in the scope as much as possible. The scope was first enacted 95 years ago, so, for example, where the old law referred to “X-rays,” the new law refers to “diagnostic services.” All of these changes were done with a practical eye on what was possible in a political and potentially adversarial environment.

Over the seven years of working on the legislation, the MCA engaged many individuals and organizations that had concerns with the proposed changes, including the Minnesota Physical Therapy Association (MNPTA), Minnesota Medical Association (MMA), Minnesota Radiological Society (MRS), The Acupuncture and Oriental Medicine Association of Minnesota (AOMAM), Minnesota Academy of Nutrition and Dietetics (MAND), Minnesota Occupational Therapy Association (MOTA), and the Minnesota Board of Chiropractic Examiners (MBCE). In the end, all of these organizations took a neutral position or no stance on the legislation as enacted.

Through the controversy, the MCA was only effective because of the legislative chief sponsors who have supported our scope efforts over the years. Legislators who have served in that role were Rep. Patti Fritz (DFL-Faribault), Rep. Tara Mack (R-Apple Valley), Sen. John Hoffman (DFL-Anoka), Sen. Sean Nienow (R- Cambridge), and Sen. Kathy Sheran (DFL-Mankato). Additionally, 24 state legislators, both current and former, had been co-authors over the seven years leading up to the passage of the legislation. Additionally, the MCA owes a special thanks to Dr. Joseph Sweere from Northwestern Health Sciences University for leading the committee that developed the chiropractic scope of practice language and Dr. Craig Couillard for his leadership as the MCA Legislative Committee Chair during the development and passage of the scope legislation.

Chiropractic Scope Changes

What follows is an explanation of the recent law prior to the passage of the 2014legislation—referred to as old or repealed law, statute, or rule; an explanation of the 2014law changes—referred to as the new law; and, an explanation of the difference between them.

Chiropractic
A provision in the chiropractic scope that defines “chiropractic” serves as a preamble to the scope law and a general philosophical statement about chiropractic.

The old law that was on the books since 1919 stated:

“chiropractic” is defined as the science of adjusting any abnormal articulations of the human body, especially those of the spinal column, for the purpose of giving freedom of action to impinged nerves that may cause pain or deranged function.

With the change, that language was repealed and replaced with:

“chiropractic” means the health care discipline that recognizes the innate recuperative power of the body to heal itself without the use of drugs or surgery by identifying and caring for vertebral subluxations and other abnormal articulations by emphasizing the relationship between structure and function as coordinated by the nervous system and how that relationship affects the preservation and restoration of health.

The new definition was agreed to by a group of Minnesota chiropractors representing the broad spectrum of philosophical thought about chiropractic and provides a more accurate and holistic definition of chiropractic and includes key factors that distinguish it from other disciplines.

Practice of Chiropractic
The old statute does not define the “practice of chiropractic” but does state what is included in and excluded from the practice.

Chiropractic practice includes those noninvasive means of clinical, physical, and laboratory measures and analytical x-ray of the bones of the skeleton which are necessary to make a determination of the presence or absence of a chiropractic condition. The practice of chiropractic may include procedures which are used to prepare the patient for chiropractic adjustment or to complement the chiropractic adjustment. The procedures may not be used as independent therapies or separately from chiropractic adjustment. No device which utilizes heat or sound shall be used in the treatment of a chiropractic condition unless it has been approved by the Federal Communications Commission. No device shall be used above the neck of the patient. Any chiropractor who utilizes procedures in violation of this subdivision shall be guilty of unprofessional conduct and subject to disciplinary procedures according to section 148.10.

This paragraph states that the practice of chiropractic does not include certain devices; but, does include certain diagnostic procedures to determine a chiropractic condition and certain therapeutic procedures that cannot be used separately from a chiropractic adjustment. It also imposes penalties for violating this part of law.

Administrative rules more fully defined the practice of chiropractic.

“Practice of chiropractic” includes the examination, diagnosis, prognosis, and treatment by chiropractic methods, or the rendering of opinions pertaining to those methods, for the purposes of determining a course of action in the best interests of the patient, such as a treatment plan or appropriate referral, or both. The methods may include those procedures preparatory or complementary to a chiropractic adjustment or other normal chiropractic regimen and rehabilitation of the patient as taught in accredited chiropractic schools or programs, pursuant to Minnesota Statutes, section 148.06.

This rule states that the practice of chiropractic includes an additional list of diagnostic measures, and treatment by chiropractic methods. It also narrows therapeutic methods to those that complement a chiropractic adjustment or normal chiropractic regimen taught in accredited chiropractic schools.

With the new law, the practice of chiropractic is defined in statute rather than rule, and provides for a more comprehensive definition. The new law defines the Practice of Chiropractic as:

An individual licensed to practice under section 148.06 is authorized to perform chiropractic services, acupuncture, therapeutic services, and, to provide a diagnosis and to render opinions pertaining to those services for the purpose of determining a course of action in the best interests of the patient, such as a treatment plan, appropriate referral, or both.

This new definition can be divided into four distinct areas: chiropractic services, acupuncture, therapeutic services, and diagnosis. To determine the “practice of chiropractic” under the new law, and how it may differ from the old law, all four areas need be examined as to how they are defined and interact with each other.

Chiropractic Services
Under the old law, there is no definition of chiropractic services per se. There is a statutory reference to “adjusting articulations of the human body” in the definition of “chiropractic.’ In rule, there was a reference to “treatment by chiropractic methods” and a reference to a “normal chiropractic regimen,” but, neither is defined.

The new law defines “chiropractic services” as follows:

“chiropractic services” means the evaluation and facilitation of structural, biomechanical, and neurological function and integrity through the use of adjustment, manipulation, mobilization, or other procedures accomplished by manual or mechanical forces applied to bones or joints and their related soft tissues for correction of vertebral subluxation, other abnormal articulations, neurological disturbances, structural alterations, or biomechanical alterations, and includes, but is not limited to, manual therapy and mechanical therapy as defined in section 146.23;

This new definition includes as “chiropractic services” a list of therapy techniques, the methods of applying those techniques, where the techniques can be applied, and the conditions that can be treated with the techniques.

Techniques
“Chiropractic services” in the new law include all adjustments, manipulations, mobilizations, or other procedures, rather than just “chiropractic adjustments.” Additionally, the techniques also include the manual or mechanical therapies defined in section 146.23. Section 146.23 requires that an individual who uses mechanical or manual therapy to directly treat or normalize abnormal or dysfunctional articulations of the human body must meet certain training requirements unless they are otherwise authorized to do so. This provision was added to make it clear that a licensed chiropractor is “otherwise authorized” to provide these therapies and that the additional training requirements of section 146.23 would not apply to them.

Methods
The new law states that the techniques can be applied by either manual or mechanical force. This again adds clarity that chiropractic services include adjustments, manipulations, mobilizations, and other procedures whether applied manually or mechanically.

Application
The techniques under the new law can be applied to both bones or joints and their related soft tissues. This is more expansive than the old law that referred to “adjusting any abnormal articulations of the human body, especially those of the spinal column.”

Conditions
The new law limits the use of the techniques to when they are used for the correction of veterbral subluxation and other abnormal articulations, neurological disturbances, structural alterations and biomechanical alterations. This list of conditions also includes those conditions listed in the new definition of “abnormal articulations.” “Abnormal articulation” means the “condition of opposing bony joint surfaces and their related soft tissues that do not function normally” that include subluxation, fixation, adhesion, degeneration, deformity, dislocation, or other pathology that results in pain or disturbances within the nervous system, results in postural alteration, inhibits motion, allows excessive motion, alters direction of motion, or results in loss of axial loading efficiency, or a combination of these.

The definition of “chiropractic services” is a combination of these four elements and can be summarized as the mechanical or manual techniques that include adjustment, manipulation, mobilization or other procedure used to treat a defined condition by applying the technique to a bone or joint and their related soft tissues. “Chiropractic services” can be provided without a link to a “chiropractic adjustment.”

Acupuncture
Chiropractors certified by the MBCE to perform acupuncture may only utilize acupuncture adjunct to a chiropractic adjustment. The old administrative rule stated:

“Acupuncture” means a modality of treating abnormal physical conditions by stimulating various points of the body or interruption of the cutaneous integrity by needle insertion to secure a reflex relief of the symptoms by nerve stimulation as utilized as an adjunct to chiropractic adjustment.

As existing statutory law and administrative rule were modified, to ensure that the authority to utilize acupuncture was not jeopardized with the new law changes the references to acupuncture were included in statutory law. The new law mirrors the old rule as much as possible to avoid any argument that it expanded the ability of a chiropractor to utilize acupuncture beyond what was allowed previously. The new law states:

“acupuncture” means a modality of treating abnormal physical conditions by stimulating various points of the body or interruption of the cutaneous integrity by needle insertion to secure a reflex relief of the symptoms by nerve stimulation as utilized as an adjunct to chiropractic adjustment. Acupuncture may not be used as an independent therapy or separately from chiropractic services. Acupuncture is permitted under section 148.01 only after registration with the board which requires completion of a board-approved course of study and successful completion of a board-approved national examination on acupuncture. Renewal of registration shall require completion of board-approved continuing education requirements in acupuncture. The restrictions of section 147B.02, subdivision 2, apply to individuals registered to perform acupuncture under this section;

The first sentence of this new definition comes verbatim from the repealed administrative rule and the next three sentences are consistent with the retained language found in rule.

The final sentence is a reminder that chiropractors who are registered to provide acupuncture under the chiropractic scope must also abide by the requirements of MN Statutes 147B.02, Subd. 2. that does not allow an individual to hold themselves out as an “acupuncturist” without being licensed as one under the acupuncture licensing act. Accordingly, a chiropractor registered to utilize acupuncture adjunct to a chiropractic adjustment may hold themselves out as a chiropractor who performs acupuncture, but not as an acupuncturist.

Therapeutic Services
Reference to therapeutic services, rehabilitative services, or other non-chiropractic services and the limitations on the provision of those services is found in a number places in the old laws:

The practice of chiropractic may include procedures which are used to prepare the patient for chiropractic adjustment or to complement the chiropractic adjustment. The procedures may not be used as independent therapies or separately from chiropractic adjustment.

In this repealed statute, the first sentence defines the procedures (those used to prepare or complement the chiropractic adjustment) and the second sentence limits when they can be used (not as an independent therapy and not separately from chiropractic adjustment). This section, interpreted literally would require all qualified procedures be done at the same time as a chiropractic adjustment.

“Rehabilitative therapy” means therapy that restores an ill or injured patient to the maximum functional improvement by employing within the practice of chiropractic those methods, procedures, modalities, devices, and measures which include mobilization; thermotherapy; cryotherapy; hydrotherapy; exercise therapies; nutritional therapy; meridian therapy; vibratory therapy; traction; stretching; bracing and supports; trigger point therapy; massage and the use of forces associated with low voltage myostimulation, high voltage myostimulation, ultraviolet light, diathermy, and ultrasound; and counseling on dietary regimen, sanitary measures, occupational health, lifestyle factors, posture, rest, work, and recreational activities that may enhance or complement the chiropractic adjustment

This retained rule identifies a list of procedures/treatments that constitute a “rehabilitative therapy.” But, the definition succinctly stated requires that the therapy restore a patient to maximum functional improvement within the practice of chiropractic by employing treatments which may enhance or complement the chiropractic adjustment. This rule interpreted literally would require all utilized procedures to have the potential to enhance or complement the chiropractic adjustment and that it be performed within a chiropractic practice. This definition varies from the repealed statute, and arguably is less restrictive.

Rehabilitative therapy, within the context of the practice of chiropractic, may be done to prepare a patient for chiropractic adjustment or to complement the chiropractic adjustment, provided the treating chiropractor initiates the development and authorization of the rehabilitative therapy. The administration of the rehabilitative therapy is the responsibility of the treating chiropractor. The rehabilitative therapy must be rendered under the direct supervision of qualified staff.

This repealed rule adds a further restriction on the use of rehabilitative therapy by requiring the chiropractor to initiate and be responsible for the therapy and that it be under the direct supervision of qualified staff.

The new statutory language defining therapeutic services states:

“therapeutic services” means rehabilitative therapy as defined in Minnesota Rules, part 2500.0100, subpart 11, and all of the therapeutic, rehabilitative, and preventive sciences and procedures for which the licensee was subject to examination under section 148.06. When provided, therapeutic services must be performed within a practice where the primary focus is the provision of chiropractic services, to prepare the patient for chiropractic services, or to complement the provision of chiropractic services. The administration of therapeutic services is the responsibility of the treating chiropractor and must be rendered under the direct supervision of qualified staff;

The definition can be broken into three parts: the definition of therapeutic services; the limitation on those services; and, the requirements for providing those services.

Definition
The definition of therapeutic services is comprised of two parts. The first incorporates the definition of “rehabilitative therapy” in the retained rule (discussed above) and the second includes all of the therapeutic, rehabilitative, and preventive sciences and procedures for which the licensee was subject to examination under section 148.06.

As mentioned above, rehabilitative therapy as defined in the rule, interpreted literally, would be a therapy that restores a patient to maximum functional improvement by employing treatments which may enhance or complement the chiropractic adjustment. It would include all of the therapies listed in the rule definition, but would not be limited to that list. Additionally, the definition of therapeutic services also includes all of the therapeutic, rehabilitative, and preventative sciences and procedures for which a licensee was subject to examination under 148.06. An examination under 148.06 includes testing in the basic sciences including anatomy, physiology, bacteriology, pathology, hygiene, and chemistry as related to the human body or mind; and, the clinical sciences including diagnosis, roentgenology, and nutrition.

The definition of therapeutic services is broad and a fair amount of discretion is left to MBCE to determine what is included as a therapeutic service. However, the listing in the rule, although not exhaustive, serves as a guide. Additionally, any service that is considered a chiropractic service would not be a therapeutic service as it is defined separately.

Limitation
The new law limits when a therapeutic service can be provided under a chiropractic license. The new law states that “when provided, therapeutic services must be performed within a practice where the primary focus is the provision of chiropractic services, to prepare the patient for chiropractic services, or to complement the provision of chiropractic services.”

Accordingly, under the new provision, therapeutic services, if provided, must be provided within a chiropractic practice, to prepare the patient for chiropractic services, or to complement chiropractic services. This differs from the repealed law that required all procedures prepare for or complement the chiropractic adjustment and that the procedures be performed at the same time as a chiropractic adjustment. The main difference is that the “preparation for” and “complementing of” is of a “chiropractic service” instead of a “chiropractic adjustment.” Additionally, all language that can be interpreted to require that a therapeutic service be performed at the same time as a chiropractic adjustment has been repealed.

Specifically, the repealed language: “The procedures may not be used as independent therapies or separately from chiropractic adjustment,” can be interpreted many ways. It can be argued that a therapeutic service cannot be provided unless a chiropractic adjustment is also performed at the same time. Others, including the MBCE, have interpreted this law less restrictively. By the enactment of the new statutory language and the repeal of this restrictive language, chiropractors are being protected from a future interpretation of the repealed language in the more extreme, restrictive manner. In other words, the new law has narrowed the “interpretation” gap concerning this issue.

This provision and its interpretation have generated the bulk of the questions and controversy about the new law. Although clear and concise language that every stakeholder could agree upon would be ideal, the MCA had to face political reality and agree to language that is less clear and concise than the ideal, but much more specific than previous law. However, it was the intent of the task force that developed the language of the legislation that “therapeutic services” could be utilized in the care of a patient without the requirement that an adjustment be also delivered. Additionally, the MCA feels that the new statute should be interpreted to have that meaning.

Requirements
The last sentence of this definition incorporates two requirements from the repealed rule that both the administration of therapeutic services is the responsibility of the treating chiropractor and that they must be rendered under the direct supervision of qualified staff.

Diagnosis
The ability to diagnosis is implied in the old chiropractic scope of practice. For example, the repealed law stated that:

chiropractic practice includes those noninvasive means of clinical, physical, and laboratory measures and analytical x-ray of the bones of the skeleton which are necessary to make a determination of the presence or absence of a chiropractic condition.

This reference in statute is limited to making a determination of the presence or absence of a chiropractic condition. Also, under law an examination for chiropractic licensure shall include testing in “diagnosis.”

Under administrative rule, diagnosis was defined as follows:

“Diagnosis” means the physical, clinical, and laboratory examination of the patient, and the use of X-ray for diagnostic purposes within the scope of practice described in Minnesota Statutes, sections 148.01 to 148.10.

Included as part of the “chiropractic scope of practice” in the repealed administrative rule is the following:

. . .to provide a diagnosis and to render opinions pertaining to those services for the purpose of determining a course of action in the best interests of the patient, such as a treatment plan, appropriate referral, or both.

Under the new law, this definition of “diagnosis” is part of the new statutory language:

“Diagnosis” means the physical, clinical, and laboratory examination of the patient, and the use of diagnostic services for diagnostic purposes within the scope of practice described in sections 148.01 to 148.10.

This definition mirrors the repealed rule definition except that the word “X-ray” was replaced with the term “diagnostic services.” Also, the definition of “diagnosis” was further clarified by adding a new definition for “diagnostic services” that states:

Diagnostic services” means clinical, physical, laboratory, and other diagnostic measures, including diagnostic imaging that may be necessary to determine the presence or absence of a condition, deficiency, deformity, abnormality, or disease as a basis for evaluation of a health concern, diagnosis, differential diagnosis, treatment, further examination, or referral.

Through reference to “diagnostic services” a chiropractor can use clinical, physical, laboratory, and other diagnostic measures, including diagnostic imaging to diagnosis without reference to a “chiropractic condition.” The new change also moves the ability to diagnosis from administrative rule to statute.

Exclusions
Since its inception, the chiropractic scope has included a provision that it is not “the practice of medicine, surgery or osteopathy.” In the new law, “physical therapy” was added to the list of what chiropractic is not. This provision does not limit the chiropractic scope of practice, but makes it clear that chiropractic and physical therapy are two different professions. This language mirrors language in the physical therapy scope of practice that states that physical therapy does not include the practice of chiropractic.


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