|2014 Scope of Practice Modifications|
Prepared by Kevin Goodno, Fredrikson & Byron, P.A.
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.
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.
The old law that was on the books since 1919 stated:
With the change, that language was repealed and replaced with:
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
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.
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:
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.
The new law defines “chiropractic services” as follows:
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.
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.”
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:
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.
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.
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.
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:
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.
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.
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.
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:
Included as part of the “chiropractic scope of practice” in the repealed administrative rule is the following:
Under the new law, this definition of “diagnosis” is part of the new statutory language:
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:
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.