The International Chiropractors Association of California
970 Business Park Drive. Suite 200
Sacramento, CA 95827
(916) 362-8816 (800) 275-3515
Fax (9161) 362-4145

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF CONTRA COSTA

JONATHAN, D.C.,

No. N14-0353 (BCE No. 2012-923; OAH No. 2012090120)

Petitioner,

v.

CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS/BOARD OF CHIROPRACTIC EXAMINERS,

BRIEF OF AMICUS CURIAE

INTERNATIONAL ASSOCIATION OF CHIROPRACTORS OF CALIFORNIA IN SUPPORT OF PETITION FOR WRIT OF MANDATE

KAREN L. LANDAU, ESQ.
CSB 128728
2626 Harrison St.
Oakland, CA 94612
(510) 839-9230 x 14
karenlandau@karenlandau.com

Michael Cremata, Esq.
CSB 279859
4250 Azores Court
Livermore, CA 94550
(925) 788-6711

Counsel for Amicus Curiae
International Association of Chiropractors of California

TABLE OF CONTENTS

I. Statement of Interest .................................................................. 1

II. Summary of Argument .............................................................. 3

III. The Governor's Reorganization Plan, Which Subjects The Board Of Chiropractic Examiners To The Authority Of The Department Of Consumer Affairs Creates A Fundamental Conflict Of Interest Which Harms The Profession And The Public. ................................ 4

A. The Chiropractic Profession ........................................... 4

B. The Historical Relationship Between the Board Of Chiropractic Examiners and the Department of Consumer Affairs Demonstrates an Extant Conflict of Interest. ............................... 7

C. The DCA Still Labors Under A Conflict of Interest and Has Exhibited Misconceptions About and Bias Against the Chiropractic Profession. ............................................................ 10

IV. The Recent Placement Of The BCE Under The Rubric Of The DCA Is Unwise For Policy Reasons. .............................................. 16

V. Conclusion .............................................................................. 22

 

TABLE OF AUTHORITIES

Cases

Crees v. Cal. State Board of Med. Examiners (1963) 213 Cal.App.2d 195 . 5

Hunt v. State Board of Chiropractic Examiners (1948) 87 Cal.App.2d 98 13

People v. Fowler (1938) 32 Cal.App.2d Supp. 737 .............................. 4, 5

Tain v. State Board of Chiropractic Examiners (2005) 130 Cal.App.4th 609 ............................................................................................... 4, 5, 12

Wilk v. American Medical Ass'n (N.D. Ill. 1987) 671 F. Supp. 1465, affd.

(7th Cir. 1990) 895 F.3d 352 ............................................................... 7

Statutes

Cal. Bus. & Prof. Code § 313.1, subds. (a)-(d) ...................................... 10

Other Authorities

59 Ops.Cal.Atty.Gen. 396 (1976) ........................................................... 5

Boline, Kassem, Bronfort, et al ., Spinal Manipulation vs. Amitriptyline for

the Treatment of Chronic Tension-Type Headaches: A Randomized Clinical Trial (1995) 18 J. of Manipulative and Physiological Therapeutics No. 3: 148-54 ............................................................ 18

Boudreau, Busee, McBride, Chiropractic Services in the Canadian Armed Forces: A Pilot Project (2006) 171 Military Medicine No. 6: 572-76 .... 19

Burke, Buchberger, Carey-Loghmani, et al ., A Pilot Study Comparing Two Manual Therapy Interventions for Carpal Tunnel Syndrome (2007) 30 J. of Manipulative and Physiological Therapeutics No.1: 50-61 ............. 18

Carey, Garrett, et al., The Outcomes and Costs of Care for Acute Low Back Pain Among Patients Seen by Primary Care Practitioners, Chiropractors, and Orthopedic Surgeons: The North Carolina Back Project (1995) 333 New England J. of Medicine No. 14, 913-917 ................................... 20

Cherkin, MacCornack, Patient Evaluations of Care from Family Physicians and Chiropractors (1989) 150 Western J. Med. No. 3, 151-55 ............ 20

Choudry, Milstein, Do Chiropractic Physician Services For Treatment Of Low Back And Neck Pain Improve The Value Of Health Benefit Plans?: An Evidence-Based Assessment of Incremental Impact on Population Health and Total Health Care Spending (2009) Mercer Health and Benefits, published at http://www.foundation4cp.com/evidence_based_assessment.pdf. ... 20

Crownfield, Chiropractic as a Covered Benefit, 31 Dynamic Chiropractic (April 2013) No. 7 ............................................................................ 16

Davis, et al. , Comparative Efficacy of Conservative Medical and

Chiropractic Treatments for Carpal Tunnel Syndrome: A Randomized Clinical Trial (1998) 21 J. of Manipulative and Physiological Therapeutics No.5: 317-26 ............................................................. 18

Haneline, M.T., Symptomatic Outcomes and Perceived Satisfaction Levels of Chiropractic Patients with a Primary Diagnosis Involving Acute Neck Pain (2006) 29 J. Of Manipulative and Physiological Therapeutics No.

4: 288-96 ........................................................................................ 18

Hawk, Long, Boulanger, Patient Satisfaction with the Chiropractic Clinical Encounter: Report from a Practice-Based Research Program (2001) 9 J. of Neuromusculoskeletal System No. 4, 109-117 .............................. 19

Hertzman-Miller, et al . Comparing the Satisfaction of Low Back Pain Patients Randomized to Receive Medical or Chiropractic Care: Results from the UCLA Back Pain Study (2002) 92 American J. of Public Health

No. 10, 1628-1633 ........................................................................... 20

http://chiroca.granicus.com/MediaPlayer.php?view_id=2&clip_id=289 (video recording of 9/20/12 BCE meeting) ....................................... 14

Jarvis, Phillips, Morris, Cost Per Case Comparison of Back Injury Claims of Chiropractic Versus Medical Management for Conditions with Identical Diagnostic Codes , 33 J. of Occupational Medicine (1991) No. 8: 847-52 ....................................................................................................... 17

Johnson D, Heppler K., RE: [name redacted], Case Number 03-2011-217622 (May 14, 2012) State of California Department of Consumer

Affairs, Division of Legal Affairs ........................................................ 13

Korthals-deBos, Hoving, Van Tulder, et al, Cost Effectiveness of Physiotherapy, Manual Therapy and General Practitioner Care for Neck Pain: Economic Evaluation Alongside a Randomized Controlled Trial (April 2003) 326 British Med. J. 911 ................................................ 20

Legoretta, Metz, Nelson, et al., 164 Archives of Int. Medicine (2004) 1985 ....................................................................................................... 21

Manga, Enhanced Chiropractic Coverage under OHIP [Ontario Health Ins. Plan] as a Means for Reducing Health Care Costs (1998) Report to

Ontario Ministry of Health ............................................................... 21

Manga, P., et al., The Effectiveness and Cost-Effectiveness of Chiropractic Management of Low-Back Pain , Report to Ontario Ministry of Health

(1993) 79-82 .................................................................................... 20

Meade, Dyer, Browne, et al ., Randomized Comparison of Chiropractic and Hospital Outpatient Management for Low Back Pain: Results from

Extended Follow Up, 1995 British Medical J. 311 ............................. 17

Nyiendo, Haas, Goodwin, Patient Characteristics, Practice Activities, and One-Month Outcomes for Chronic, Recurrent Low-Back Pain Treated by Chiropractors and Family Medicine Physicians: A Practice-Based Feasibility Study (2000) 23 J. of Manipulative and Physiological

Therapeutics 239-45........................................................................ 20

Palmer West College of Chiropractic, Winter 2014 “Physical Therapy II” course syllabus ............................................................................... 13

Proposed Regulations re ECSW, Discussed at October 29, 2013 Meeting, Public Meeting Minutes at 4; see also 45 Day Comments at 1-2 ........ 15

Shekelle, et al . RAND Corp Report, The Appropriateness of Spinal Manipulation for Low-Back Pain, 164 Archives of Internal Med. (1992)

No.7: 590-598 ................................................................................. 17

Smith, Stano, Costs and Recurrences of Chiropractic and Medical Episodes of Low Back Care (1997) 20 J. of Manipulative and Physiological Therapeutics (1997) No. 1: 5-12 .................................. 20

Stano, Smith, Chiropractic and Medical Costs of Low Back Care (1996) 34 Medical Care No. 3: 191-204 ........................................................... 20

Stason, Ritter, Shepard, et al., Report to Congress on the Evaluation of the Demonstration of Coverage for Chiropractic Services Under Medicare (2009) Baltimore Centers for Medicare and Medicaid Services ........... 19

Underwood, United Kingdom Back Pain, Exercise and Manipulation Ramdomized Trial: Cost Effectiveness of Physical Treatments for Back Pain in Primary Care (Dec. 2004) 329 British Med. J. 1377 ............... 20

Vernon, Humphreys, Hagino, Chronic Mechanical Neck Pain in Adults Treated by Manual Therapy: A Systematic Review of Change Scores in Randomized Clinical Trials (2007) 30 J. of Manipulative and Physiological Therapeutics No. 3: 215-27 ......................................... 18

Rules

Cal. Code Reg., tit. 16, § 302, subd. (a)(1) ........................................ 6, 12

Cal. Code Reg., tit. 16, § 302.5 .............................................................. 6

I. Statement of Interest

The International Chiropractors Association of California (“ICAC”) is the California chapter of the International Chiropractors Association (“ICA”). Established in 1926 by Dr. B. J. Palmer1, the ICA is the world’s oldest international chiropractic professional organization, representing nearly eight thousand practitioners, students, chiropractic assistants, educators, and laypersons worldwide. The ICA has as its dual missions: (1) to advance chiropractic throughout the world as a distinct health care profession predicated upon its unique philosophy and science; and (2) to empower humanity in the expression of maximum health and wellness. Among ICAC's primary objectives is maintaining chiropractors’ scope of practice, and, by so doing, protecting the right of every citizen to choose unhampered the doctor and healing art of his or her preference.

ICAC's missions are directly implicated by the present case. The Department of Consumer Affairs’ (“DCA”) governance of the Board of Chiropractic Examiners’ (“BCE”) will inflict serious harm on both the chiropractic profession and the health and wellness of the people of California. DCA governance will impede the independence of the BCE and thereby undercut the intention of California voters in passing the 1922 California Chiropractic Initiative Act (the “Act”). In previous years, DCA oversight significantly interfered with the proper functioning of the BCE and its governance of chiropractic profession. The BCE recognized these flaws in 1976 and declared its independence.

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1 Dr. B. J. Palmer was the son of Dr. D.D. Palmer who founded Palmer Chiropractic College. Dr. D. D. Palmer also is widely considered to be the founder of chiropractic practice.

The governor's reorganization plan, which purports to place the BCE back under the authority of the Department of Consumer Affairs not only impermissibly intrudes on the initiative power, but also poses a grave danger to the chiropractic profession and its goal of providing non-intrusive treatment to patients. The DCA has an unduly limited view of what constitutes chiropractic and what methods and modalities may be used by chiropractors. Thus, DCA's continued oversight of BCE’s substantive functioning threatens to deprive Californians of their ability to access viable chiropractic treatments and chiropractors of their right to provide such treatments.

Furthermore, the ICAC and all chiropractors licensed to practice in the state of California, have an interest in having a fair and unbiased disciplinary hearing procedure. DCA governance of the Board infringes on the independence of the discipline process, and thus threatens both through actual partiality and the appearance of partiality.

Accordingly, amicus submits that DCA oversight of the BCE is contrary to public policy.

II. Summary of Argument

The reorganization of the Board of Chiropractic Examiners, by which the Governor has purported to place the BCE under the authority of the Department of Consumer Affairs, is unconstitutional. That unconstitutionality renders ongoing disciplinary proceedings void ab initio, including the proceedings involving the discipline of Dr. Joseph Widenbaum.

Moreover, and of particular concern to amicus, the placement of the BCE under the authority of the DCA is neither in the best interest of the chiropractic profession, nor the public. The placement of the BCE under the DCA's authority may be convenient for state bureaucrats, but does not further public safety or the proper governance of the profession. Indeed, the reorganization is not even cost-effective: Robert Puleo, the BCE's Executive Officer of the BCE testified at hearings before the Little Hoover Commission and the State Legislature that the forced inclusion of the BCE within the DCA would cost the BCE in excess of $300,000 per year.2 Accordingly, the ICAC urges the Court to conclude that the revocation of the chiropractic license of Dr. Joseph Widenbaum is void, because the Board of Chiropractic Examiners, as currently constituted, is an invalid body.

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2 It is noteworthy, in this regard, that BCE is not supported by the General Fund, instead obtaining 100% of its revenue licensee fees.

III. The Governor's Reorganization Plan, Which Subjects The Board Of Chiropractic Examiners To The Authority Of The Department Of Consumer Affairs Creates A Fundamental Conflict Of Interest Which Harms The Profession And The Public.

A. The Chiropractic Profession

In 1922, the people of the state of California passed the Chiropractic Initiative Act ("the Act".) Prior to that time, chiropractors were regulated by the Board of Medical Examiners. Chiropractors were governed by -- and prosecuted under -- the 1913 Medical Practices Act. The Act provided a complete defense to an action brought for violating the Medical Practices Act, to the extent one was practicing chiropractic as authorized by the CCIA. ( People v. Fowler (1938) 32 Cal.App.2d Supp. 737, 742.)

The California courts have looked to the CCIA when defining the scope of chiropractic practice. Specifically, courts have held that the scope of chiropractic practice is limited to how California voters would have understood chiropractic at the time of the Act and as taught in chiropractic schools or colleges. (Tain v. State Board of Chiropractic Examiners (2005) 130 Cal.App.4th 609, 620 [quoting Fowler , supra, 32 Cal. App.2d Supp. 737, 745].) Chiropractic has been defined as a "drugless method of treating disease chiefly by manipulation of the spinal column." Fowler , 32 Cal.App.2d Supp. at p. 745. Alternatively, chiropractic is defined as "a system of healing that treats disease by manipulation of the spinal column," or "a system of treatment by manipulation of anatomical displacements, specially the articulation of the spinal column, including its vertebrae and cord." Id . at p. 746. As such, however, chiropractors are permitted "to use all necessary mechanical, and hygienic and sanitary measures incident to the care of the body." Fowler, supra , 32 Cal.App.2d Supp. at p. 748. The scope of chiropractic practice excludes the practice of medicine, surgery, osteopathy, dentistry or optometry and the use of drugs or medicine. ( Ibid. ) But, chiropractors may use the concepts from various areas of knowledge in providing chiropractic care and treatment, including anatomy, bacteriology, sanitation, hygiene, and dietetics. (59 Ops.Cal.Atty.Gen. 396 (1976).)

While the nature of chiropractic practice is defined as it was known in 1922, the means and methods of chiropractic practice have evolved. ( See Tain, supra , 130 Cal.App.4th at p. 620; Fowler, supra , 32 Cal.App.2d Supp. at pp. 740, 745; Crees v. Cal. State Board of Med. Examiners (1963) 213 Cal.App.2d 195, 204.) Chiropractic means and methods are not restricted to forms of treatment that existed in 1922. (See Cal. Code Reg., tit. 16, § 302, subd. (a)(1); Tain , supra, 130 Cal.App.4th at pp. 618-19 . ) While certain methods of treatment, such as the use of hypodermic needles, surgery, or prescription drugs are reserved for medical doctors, other methods fit within the scope of chiropractic practice. ( See Tain , 130 Cal.App.4th at p. 619.) For example, lasers did not exist in 1922, but the BCE has authorized their use in the practice of chiropractic. (See Cal. Code Reg., tit. 16, § 302.5.)

The chiropractic profession wishes to continue to evolve and to provide its patients with the best methods of chiropractic treatment. This goal, however, is threatened by Department of Consumer Affairs (hereafter DCA) governance. As is explained in further detail below, the DCA has conflicting interests stemming largely from its long-standing representation of the Board of Medical Examiners. The legislature's placement of the BCE under the authority of the Department of Consumer Affairs has created a fundamentally conflicted body which cannot properly protect either the practice or the profession of chiropractic and undermines the fair and unbiased policing of the profession.

 

B. The Historical Relationship Between the Board Of Chiropractic Examiners and the Department of Consumer Affairs Demonstrates an Extant Conflict of Interest.

The Department of Consumer Affairs has long represented the California Board of Medical Examiners ("BME"), the body tasked with regulating and protecting the medical profession. Regrettably, the medical profession, including that in California, has a long history of hostility to the chiropractic profession and the practice of chiropractic. (See generally Wilk v. American Medical Ass'n (N.D. Ill. 1987) 671 F. Supp. 1465, 1471-77, affd. (7th Cir. 1990) 895 F.3d 352.) The hostility has extended to the DCA and its counsel which have a long-standing relationship with the Board of Medical Examiners.

As previously noted, chiropractors were historically prosecuted for violating the Medical Practices Act. The CCIA provided a defense to such charges. Passage of the CCIA, however, did not end competition and hostility between the medical and chiropractic professions. Indeed, at least between 1960-80, the American Medical Association instituted a boycott of chiropractors in restraint of trade. ( Ibid. ) In 1966, the AMA labeled chiropractic an "unscientific cult." Until at least 1980, the AMA forbade doctors from referring patients to chiropractors. ( Wilk, supra , 895 F.2d at p. 356.) The AMA's boycott of chiropractors became dormant in 1980, but the federal courts nonetheless issued an injunction based on its past practices and its failure to disavow those practices. ( Id . at pp. 356, 374; see also 671 F. Supp. at pp. 1471-77.)

The chiropractic and medical professions have experienced considerable conflict in California. For 30 years, between 1946 and 1976, the Board of Chiropractic Examiners voluntarily subjected itself to the authority of the DCA. This period was marred by dissatisfaction stemming from the DCA's simultaneous representation of the California Board of Medical Examiners. Over time, the BCE recognized that the DCA did not, and could not, represent the best interests of the chiropractic profession, because the DCA’s simultaneous representation of the medical board resulted in an irreconcilable conflict of interest.

Indeed, the BCE publicly stated:

"WHEREAS, before and during the term of this BOARD's existence, the Board of Medical Examiners and the Department of Consumer Affairs (formerly the Department of Professional and Vocational Standards) have, without pause, been antagonistic to this BOARD and the science of Chiropractic."

1976 Resolution (Petitioner's exhibits, volume 1, exhibit E.) The BCE noted the penchant for the DCA to side with the Board of Medical Examiners in disagreements over scope of practice, to wit:

"WHEREAS, the BOARD OF MEDICAL EXAMINERS, DEPARTMENT OF CONSUMER AFFAIRS, and the ATTORNEY GENERAL, have, without pause, supported the partisan activities of the BOARD OF MEDICAL EXAMINERS, siding with that board on every legal question, interpretation and contest between that board and this, requiring this BOARD to retain private counsel to enforce its positions in the positions of Chiropractic practitioners generally; and

WHEREAS, in present legal matters the DEPARTMENT OF CONSUMER AFFAIRS and the ATTORNEY GENERAL continue to align themselves against this BOARD, again requiring this BOARD to retain private counsel to protect its position;"

The 1976 resolution evinces the position of chiropractors, as represented by the BCE, that the best interests of the profession required that its governing body operate independently of the DCA. The resolution recognized the fundamental conflict of interest with the DCA and took powerful corrective action.

Significantly, the 1976 resolution expressed the intention of permanently severing the BCE's relationship with the DCA. The resolution was intended to allow the BCE to forever function as the independent regulating body that California voters had envisioned in enacting the Chiropractic Act, to wit:

"WHEREAS, the BOARD OF MEDICAL EXAMINERS, DEPARTMENT OF CONSUMER AFFAIRS, and the ATTORNEY GENERAL, have, without pause, supported the partisan activities of the BOARD OF MEDICAL EXAMINERS, siding with that BOARD on every legal question, interpretation and contest between that BOARD and this…

NOW, THEREFORE, IT IS RESOLVED

1. That this BOARD . . . does remove itself, withdraw, and declare its independence from the DEPARTMENT OF CONSUMER AFFAIRS.

2. That this BOARD will at all times in the future maintain an entirely autonomous position, free of control by the ATTORNEY GENERAL and the DEPARTMENT OF CONSUMER AFFAIRS or any other agency or department of the State of California…" (1976 Resolution, Exh. E [emphasis added].)

The current reorganization of the BCE under the rubric of the DCA effectively eliminates the independence of the BCE and undermines the future of the chiropractic profession and its fair and unbiased policing. Indeed, aside from licensing requirements, the BCE cannot even pass a rule or regulation without notice to, review by, and the approval of the DCA. (Cal. Bus. & Prof. Code § 313.1, subds. (a)-(d).)

C. The DCA Still Labors Under A Conflict of Interest and Has Exhibited Misconceptions About and Bias Against the Chiropractic Profession.

Today, approximately 90 years after passage of the Initiative Act and 37 years after the 1976 resolution, the practice of chiropractic is more established. Research supports its efficacy and safety. (See post at pp. 17-22.) Nonetheless, misconceptions about the efficacy and safety of chiropractic persist. The DCA appears to have fallen prey to these misconceptions and thus remains an unsuitable body to regulate chiropractors. In this regard, the DCA has retained a narrow-minded view toward chiropractic, continuing to display, at best, a misunderstanding of the proper scope of chiropractic practice and at worst, a bias against the profession. The DCA's ignorance and bias makes it as ill-equipped to regulate chiropractic now as it was in 1976.

In particular, the DCA opinions about the narrow scope of proper chiropractic practice misapprehend the governing statute and controlling case law. California courts have never held that Section 7 restricts chiropractic practice to only those measures taught in chiropractic schools or colleges at the time the Act was passed. Nonetheless, this misguided belief appears to inform the DCA's opinions.

Section 7 of the Chiropractic Act provides that a chiropractic license “shall authorize the holder thereof to practice chiropractic in the State of California as taught in chiropractic schools or colleges; and, also, to use all necessary mechanical, and hygienic and sanitary measures incident to the care of the body, but shall not authorize the practice of medicine, surgery, osteopathy, dentistry or optometry, nor the use of any drug or medicine now or hereafter included in materia medica .” As previously mentioned, the California courts have held that chiropractic is defined as that term would have been understood by the voters in 1922.

The BCE promulgated Section 302 to implement section 7 of the Chiropractic Act. Section 302 allows duly licensed chiropractors to “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.” ( Cal. Code Regs., tit. 16, § 302, subd. (a)(1) .) In carrying out their healing art, chiropractors are permitted to “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, light, massage, physical culture, rest, ultrasound, water, and physical therapy techniques in the course of chiropractic manipulations and/or adjustments,” including “vitamins, food supplements, foods for special dietary use, or proprietary medicines” not considered to be within the realm of medical practice. ( Id., subds. (a)(2) & (5) .) This regulation has been approved by the California courts. ( Tain v. State Bd. Of Chiropractic Examiners (2005) 130 Cal.App.4th 609, 618-19.)

The DCA's view about the treatments that chiropractors may employ, however, is founded upon the flawed legal premise that treatments fall outside the scope of chiropractic simply because they were not taught in chiropractic schools and colleges in 1922. The DCA appears to wish to limit chiropractic treatments and technologies to those available and used in 1922, despite the significant medical advances made in the last 90 years. ( See Hunt v. State Board of Chiropractic Examiners (1948) 87 Cal.App.2d 98, 100-101 [holding that the Board has the authority to enact rules imposing heightened license requirements, particularly considering the "great number of changes and improvements" made in the healing arts] .) But, while the general nature of chiropractic is defined by the 1922 Initiative Act, specific treatments used are not. (See id. at p. 101.)

This DCA's bias appears in its opinions. For example, in response to an inquiry regarding whether the use of certain laser procedures fell within the scope of chiropractic, DCA counsel suggested that they were not, opining: “[l]asers were not part of the curriculum at chiropractic school [sic] or colleges when the [Chiropractic Act] was passed . . .."3

DCA counsel failed to address whether laser treatment is taught in chiropractic schools or colleges today, or whether the treatment fell within the scope of chiropractic as a drugless, nonsurgical modality.4 Importantly, counsel failed to comprehend the fundamental distinction between the nature of chiropractic and the methods of treatment taught in chiropractic schools in 1922.

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3 Johnson, Heppler, RE: [name redacted], Case Number 03-2011-217622 (May 14, 2012) State of California Department of Consumer Affairs, Division of Legal Affairs

4 See, e.g., Palmer West College of Chiropractic, Winter 2014 “Physical Therapy II” course syllabus. between the nature of chiropractic and the methods of treatment taught in chiropractic schools in 1922.

A DCA bias in favor of restricting the chiropractic profession also is evidenced in statements made by DCA counsel Spencer Walker in public and private meetings with BCE members. For example, during a September 20, 2012 public meeting, Walker stated that “chiropractic practices are limited to those taught in 1922 chiropractic schools. So, unless this [laser procedure] was taught in chiropractic schools in 1922 it is simply not authorized ... Even if it’s taught in chiropractic schools now but not in 1922 it’s an unlawful expansion.”5 (emphasis added) This opinion reflects the same fundamental misunderstanding of the distinction between the nature of chiropractic as a healing profession -- which may be limited -- and methods of treatment -- which should not be so limited.

Similarly, Medical Board staff attorney Kerrie Webb commented that a regulation allowing chiropractors to use extracorporal shockwave (ECSW) therapy, allowed practice outside the scope of chiropractic, because ECSW was not taught in chiropractic schools in 1922, and its use by chiropractors would invade the field of medicine. (Proposed Regulations re ECSW, Discussed at October 29, 2013 Meeting, Public Meeting Minutes at 4; see also 45 Day Comments at 1-2.) Of course, ECSW did not exist in 1922, and it could not, therefore, have been taught in chiropractic schools -- or any schools -- at the time. The DCA view allows medical doctors and their patients to benefit from evolving forms of treatment, but not chiropractors.

The DCA also apparently holds the fallacious belief that, where the fields of chiropractic and medicine overlap, chiropractors must be excluded.

_____________________

See http://chiroca.granicus.com/MediaPlayer.php?view_id=2&clip_id=289 (video recording of 9/20/12 BCE meeting).

That is, the DCA seemingly embraces the position (favored by the medical profession) that if a particular mode of treatment or technique is within the scope of medicine, then it must therefore be outside the scope of chiropractic.6

The notion that any overlap between the medical profession and the chiropractic profession must be eliminated is fundamentally flawed. There was overlap between the professions in 1922 and there is overlap now. For example, both doctors and chiropractors used radiological technology for diagnostic purposes in 1922, and both use it now. Chiropractors use ultrasound technology for treatment, as do doctors and physical therapists. Certainly, there are some methods of treatment over which medical doctors have exclusive jurisdiction. But, the mere fact that a treatment modality is used by the medical profession does not bar chiropractors.

Finally, the DCA bias is exhibited by legislation that places restrictions on financial reimbursement for chiropractic treatment from which other health care professionals are exempt. For example, in 2003, the California Legislature passed SB 899, limiting chiropractic treatment in workers' compensation cases to 24 visits, while services performed by medical doctors are unlimited. In 2012, the Legislature enacted SB 863, limiting chiropractors' ability to serve as the primary treating physician in workers' compensation cases. Furthermore, while 45 states mandated coverage of chiropractic benefits under the Affordable Care Act, California did not.7

In sum, DCA opinions and actions demonstrate bias against the chiropractic profession.

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6 See, e.g., Kerrie Webb comments from BCE meeting regarding ECSW, cited infra n. 4.

7 See Crownfield, Chiropractic as a Covered Benefit, 31 Dynamic Chiropractic (April 2013) No. 7.

IV. The Recent Placement Of The BCE Under The Rubric Of The DCA Is Unwise For Policy Reasons.

Chiropractic is a well-recognized healing art that has proven benefits to appropriate patients. The practice of chiropractic is licensed in all 50 states. Chiropractic treatment is both effective and less costly to patients. ( See, e.g., Jarvis, Phillips, Morris, Cost Per Case Comparison of Back Injury Claims of Chiropractic Versus Medical Management for Conditions with Identical Diagnostic Codes , 33 J. of Occupational Medicine (1991) No. 8: 847-52 [compensation costs found to be ten times higher for medical versus chiropractic management of identical conditions].)

Scientific studies have proven the effectiveness of chiropractic treatment for many of the most common spine-related conditions. Chiropractic care is recognized as an effective treatment of low-back pain. ( E.g. Meade, Dyer, Browne, et al ., Randomized Comparison of Chiropractic and Hospital Outpatient Management for Low Back Pain: Results from Extended Follow Up, 1995 British Medical J. 311, 349–51 [study of more than 700 patients suffering from low back pain found that chiropractic care was more effective than standard medical care]; Shekelle, et al . RAND Corp Report, The Appropriateness of Spinal Manipulation for Low-Back Pain, 164 Archives of Internal Med. (1992) No.7: 590-598 [chiropractic treatment substantially hastened recovery from acute low back pain].) Chiropractic care is an effective treatment for neck pain. (See Haneline, M.T., Symptomatic Outcomes and Perceived Satisfaction Levels of Chiropractic Patients with a Primary Diagnosis Involving Acute Neck Pain (2006) 29 J. Of Manipulative and Physiological Therapeutics No. 4: 288-96.)Therapeutics No. 4: 288-96.)Therapeutics No. 4: 288-96.)8

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8 See also Vernon, Humphreys, Hagino, Chronic Mechanical Neck Pain in Adults Treated by Manual Therapy: A Systematic Review of Change Scores in Randomized Clinical Trials 2007) 30 J. of Manipulative and Physiological Therapeutics No. 3: 215-27.

Chiropractic has been found to be helpful for other conditions as well. Chiropractic treatment is effective for the relief of pain related to carpal tunnel syndrome. (Burke, Buchberger, Carey-Loghmani, et al ., A Pilot Study Comparing Two Manual Therapy Interventions for Carpal Tunnel Syndrome (2007) 30 J. of Manipulative and Physiological Therapeutics No.1: 50-61 [finding evidence that manual therapies practiced by chiropractors increased myofascial mobility, thereby increasing blood flow and decreasing nerve pressure]; Davis, et al. , Comparative Efficacy of Conservative Medical and Chiropractic Treatments for Carpal Tunnel Syndrome: A Randomized Clinical Trial (1998) 21 J. of Manipulative and Physiological Therapeutics No.5: 317-26 [showing improvement in comfort, finger sensation, and nerve conduction from chiropractic treatment, and more than 120% greater improvement in vibrometric tests compared to conventional medical treatment].)

Studies demonstrate that patients highly value chiropractic care. Chiropractic care carries an individualized approach, and chiropractors are taught to listen carefully to the individual patient. This approach has resulted in a high level of patient satisfaction. (See Hawk, Long, Boulanger, Patient Satisfaction with the Chiropractic Clinical Encounter: Report from a Practice-Based Research Program (2001) 9 J. of Neuromusculoskeletal System No. 4, 109-117.) In a 2009 survey conducted by the Baltimore Centers for Medicare and Medicaid Services, 87% of respondents rated their satisfaction with chiropractic care as eight of ten or higher. (Stason, Ritter, Shepard, et al., Report to Congress on the Evaluation of the Demonstration of Coverage for Chiropractic Services Under Medicare (2009) Baltimore Centers for Medicare and Medicaid Services.)9

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9 Accord Boudreau, Busee, McBride, Chiropractic Services in the Canadian Armed Forces: A Pilot Project (2006) 171 Military Medicine No. 6: 572-76.

Indeed, several studies show higher patient satisfaction levels from chiropractic care as compared with treatment provided by medical doctors, particularly with respect to treatment for back pain. ( E.g. Hertzman-Miller, et al . Comparing the Satisfaction of Low Back Pain Patients Randomized to Receive Medical or Chiropractic Care: Results from the UCLA Back Pain Study (2002) 92 American J. of Public Health No. 10, 1628-1633.) 10

Finally, chiropractic care is more cost-effective than traditional

medical treatment.11 Several studies show that chiropractic care is safer, more effective, and more cost-effective than traditional medical care with regard to the treatment of low back pain. 12

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10 Accord Nyiendo, Haas, Goodwin, Patient Characteristics, Practice Activities, and One-Month Outcomes for Chronic, Recurrent Low-Back Pain Treated by Chiropractors and Family Medicine Physicians: A Practice-Based Feasibility Study (2000) 23 J. of Manipulative and Physiological Therapeutics 239-45; Smith, Stano, Costs and Recurrences of Chiropractic and Medical Episodes of Low Back Care (1997) 20 J. of Manipulative and Physiological Therapeutics (1997) No. 1: 5-12; Carey, Garrett, et al., The Outcomes and Costs of Care for Acute Low Back Pain Among Patients Seen by Primary Care Practitioners, Chiropractors, and Orthopedic Surgeons: The North Carolina Back Project (1995) 333 New England J. of Medicine No. 14, 913-917; Cherkin, MacCornack, Patient Evaluations of Care from Family Physicians and Chiropractors (1989) 150 Western J. Med. No. 3, 151-55.

11 See Choudry, Milstein, Do Chiropractic Physician Services For Treatment Of Low Back And Neck Pain Improve The Value Of Health Benefit Plans?: An Evidence-Based Assessment of Incremental Impact on Population Health and Total Health Care Spending (2009) Mercer Health and Benefits.

12 Stano, Smith, Chiropractic and Medical Costs of Low Back Care (1996) 34 Medical Care No. 3: 191-204; Korthals-deBos, Hoving, Van Tulder, et al, Cost Effectiveness of Physiotherapy, Manual Therapy and General Practitioner Care for Neck Pain: Economic Evaluation Alongside a Randomized Controlled Trial (April 2003) 326 British Med. J. 911 [manual therapy was the most effective treatment and cost less]; Underwood, United Kingdom Back Pain, Exercise and Manipulation Ramdomized Trial: Cost Effectiveness of Physical Treatments for Back Pain in Primary Care (Dec. 2004) 329 British Med. J. 1377; Manga, P., et al., The Effectiveness and Cost-Effectiveness of Chiropractic Management of Low-Back Pain , Report to Ontario Ministry of Health (1993) 79-82; accord Manga, Enhanced Chiropractic Coverage under OHIP [Ontario Health Ins. Plan] as a Means for Reducing Health Care Costs (1998) Report to Ontario

Ministry of Health; Legoretta, Metz, Nelson, et al., 164 Archives of Int. Medicine (2004) 1985.

Chiropractic treatment is thus both efficacious and cost-effective. Chiropractic professionals should be supported, not hindered, in their efforts to provide beneficial treatment to their patients. Governance by a body that has an unduly limited view of the treatments that constitute "chiropractic," and has a long history of bias against chiropractic, will harm both the public and the profession. Indeed, the profession should not be governed by a body that seeks to restrict it to a standard of practice developed almost a century ago. Certainly, no one would suggest that medical doctors cannot utilize new treatments now which were not taught in medical schools in 1913. Such a view would be akin to recommending malpractice; among other things, it would preclude the use of well-regarded technologies, such as CT and PET scans which did not exist at the time.

Amicus is not seeking to invade the practice of medicine, and recognizes that chiropractic does not include certain areas, and certain treatments, including venipuncture, prescription drugs, obstetrics, and surgery. Like other healing arts, however, chiropractic cannot be restricted to forms of treatment taught in schools in 1922.

V. Conclusion

Historical and current conflicts of interest support the conclusion that the chiropractic profession and the public are not well-served by DCA governance. The BCE, as currently constituted under the authority of the DCA, has lost its independence, and cannot appropriately regulate the chiropractic profession. Furthermore, amicus concurs with petitioner's conclusion that the BCE, as currently constituted, is void ab initio , rendering the revocation of petitioner's chiropractic license invalid.

Dated: May 8, 2014

Respectfully submitted,

 

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KAREN L. LANDAU

Counsel for Amicus Curiae