TEXAS BOARD OF CHIROPRACTIC EXAMINERS; PATRICK FORTNER, IN HIS OFFICIAL CAPACITY AS THE BOARD‘S EXECUTIVE DIRECTOR; AND TEXAS CHIROPRACTIC ASSOCIATION, PETITIONERS, v. TEXAS MEDICAL ASSOCIATION, RESPONDENT
No. 18-1223
IN THE SUPREME COURT OF TEXAS
January 29, 2021
CHIEF JUSTICE HECHT delivered the opinion of the Court, in which JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE DEVINE, JUSTICE BLACKLOCK, and JUSTICE BUSBY joined in full, and in which JUSTICE BOYD and JUSTICE BLAND joined except with respect to Part III(D).
JUSTICE BLAND delivered an opinion dissenting in part, in which JUSTICE BOYD joined.
JUSTICE HUDDLE did not participate in the Court‘s decision.
This ten-year-old case is part of “a long history of professional, scientific, or economic antagonism between chiropractors and the medical community, and resultant disputes, spanning all three branches of government, regarding where any legal line between chiropractic and the
A
Chiropractic traces its roots to an encounter in the late 1800s between an alternative-medicine practitioner, D.D. Palmer, and his hearing-impaired office janitor. The details of the encounter have been disputed, but Palmer later claimed that he performed a manual manipulation of the janitor‘s spine, after which his hearing rapidly improved.8 What is not in dispute is that Palmer came to theorize that disease and ill health are caused by vertebral misalignment, a condition he called subluxation.9
Like medical practice, chiropractic practice has evolved over the last century, though spinal alignment remains at its core. Today chiropractors are portal-of-entry healthcare providers in all 50 states, meaning that a referral is not required to visit one. Medicare and Medicaid cover chiropractic services. Texas’ workers’ compensation regulations authorize the more than 6,000 chiropractors in this state to treat injured workers.10
B
The Act defines chiropractic practice. As passed in 1949, the Act provided that a chiropractic practitioner is one “who shall employ objective or subjective means . . . for the purpose of ascertaining the alignment of the vertebrae of the human spine[] and . . . adjusting the vertebrae to correct any subluxation or misalignment thereof.”17 Forty years later, the Legislature amended this provision to define a chiropractic practitioner as one who “(1) uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body [or] (2) uses adjustment, manipulation, or other procedures in order to
(b) A person practices chiropractic . . . if the person:
(1) uses objective or subjective means to diagnose, analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body; [or]
(2) performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system[.]20
The Act does not define the terms in these provisions. It excludes “incisive or surgical procedures” from the practice,21 but that exclusion does not apply to “the use of a needle for the purpose of drawing blood for diagnostic testing.”22 The Act also excludes from chiropractic practice prescribing drugs and using x-rays or other therapies that expose the body to radiation.23 But the Act otherwise leaves to the Board the adoption of “rules clarifying what activities are included within the scope of the practice of chiropractic and what activities are outside of that scope.”24
adopt[ing] a rule relating to the meaning of the practice of chiropractic under this Act except for:
(1) a rule relating to an adjustment, manipulation, or other procedure directly related to improving the subluxation of the spine or of the musculoskeletal system as it directly relates to improving the subluxation of the spine; or
(2) a rule that defines an unacceptable practice of chiropractic and provides for a penalty or sanction under this Act.27
In the very next session, the Legislature about-faced, replacing this very restrictive provision with a 12-word carte blanche: “The Board shall adopt rules for regulation and enforcement of this Act.”28 Finally, in 2005 the Legislature amended the Act to clarify that “[t]he board may adopt rules . . . necessary to . . . regulate the practice of chiropractic” and “shall adopt rules for the enforcement” of the Act.29 More specifically, the Act states:
The board shall adopt rules clarifying what activities are included within the scope of the practice of chiropractic and what activities are outside of that scope. The rules:
(1) must clearly specify the procedures that chiropractors may perform;
(2) must clearly specify any equipment and the use of that equipment that is prohibited; and
(3) may require a license holder to obtain additional training or certification to perform certain procedures or use certain equipment.30
Thus, over time the Legislature has chosen to prescribe chiropractic practice in broad terms undefined by statute and to require the Board to clarify by rules what activities are included and excluded. The Board consists of nine members, six chiropractors and three public members, all appointed by the Governor with Senate approval.31 The chiropractor appointees must be “reputable” and currently “practicing“.32 Eligibility disqualifiers in the Act help protect against conflicts of interest.33 As a state administrative agency, the Board is required to comply with the notice-and-comment procedures of the Administrative Procedure Act (the APA) when promulgating rules.34 But the Act also imposes on the Board the additional obligation—“early in the rule development process” and “before [it] complies with the rulemaking requirements of” the APA—to “identify[] [the] persons who will be most affected” by the proposed rules and to solicit their “advice and
C
In 2006, the Board adopted what is now Rule 78.1, titled “Scope of Practice“, defining two critical terms in the Act‘s definition of chiropractic practice.36 With respect to the evaluation provision (
[a] neuromusculoskeletal condition that involves an aberrant relationship between two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in the biomechanical and/or neuro-physiological reflections of these articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them.38
In comments to the Board, TMA opposed the definition of musculoskeletal system as “so broad as to include the nervous system and brain, and requested that the definition be limited to the spine.”39 The Board rejected the request, noting that its definition was based on medical
The Board also adopted in the 2006 scope-of-practice rule a provision, now in
While that litigation was pending, the Board in 2010 adopted what is now
A few months later, TMA sued to invalidate the VONT rule as exceeding the scope of chiropractic practice prescribed by the Act. After the court of appeals reversed summary judgment for TMA,46 TMA amended its pleadings on remand to challenge
The court of appeals affirmed in part. Relying on the trial court‘s findings of fact and the evidence adduced at trial, the court of appeals held that
Although consideration of other bodily systems may be necessary to evaluate the biomechanical condition of the spine and the musculoskeletal system, that does not mean that the definition of “musculoskeletal system” should be expanded to include associated nerves or that “subluxation complex” should be defined as a condition extending beyond the musculoskeletal system. Based on our review of the evidence put forth before the trial court, we hold that sufficient evidence supports the court‘s findings related to the Rule‘s reference to nerves and the “neuromusculoskeletal system” in its definition of “musculoskeletal system” or “subluxation complex.”
The court reached the same conclusion regarding
Although [the Board] produced evidence indicating that VONT may be a useful tool to chiropractors, the evidence establishes that VONT helps in the diagnosis of vestibular issues. The evidence further establishes that, although vestibular diseases might have an impact on the musculoskeletal system, disorders falling within the ambit of chiropractic do not cause vestibular pathologies. Simply because the test might under some circumstances be useful does not require that chiropractors be able to perform the test—the fact remains that the scope of chiropractic practice is limited under Texas law. On this record, we cannot conclude that the trial court erred in its findings of fact or in concluding that the Rule‘s provision related to VONT exceeded the scope of chiropractic.49
We granted the Board‘s and TCA‘s petitions for review. As their positions are aligned, we refer to their arguments simply as the Board‘s.
II
As a threshold matter, the Board argues that the APA affords TMA no basis for challenging Rule 78.1.
The Board characterizes
Although the Board does not argue that TMA lacks constitutional standing, “we have an obligation to examine our jurisdiction any time it is in doubt“.58 Constitutional standing requires a
III
The issue before us is whether
A
Our standard of review in this case is well settled. The parties agree, as they must, that interpreting the Act and the rules involves only questions of law, which we determine de novo.65 Although the court of appeals never expressly agreed or disagreed with this standard, it repeatedly stated that its holdings were based on the evidence and the trial court‘s findings. While it was not improper for the trial court to allow evidence to be offered as background describing medical and chiropractic practice and placing the case in context, the question whether the Board exceeded its authority by adopting rules that conflict with the Act is a legal one.
The parties also agree, again as they must, that agency rules are presumed valid and that the challenger has the burden of showing that a “rule‘s provisions are not ‘in harmony with the general objectives of the act involved.‘”66 The court of appeals acknowledged this principle in
When statutes use terms they do not define, as the Act does, “we must apply their common, ordinary meaning unless a contrary meaning is apparent from the statute‘s language.”68 Of course, the Act‘s terms must be understood in the context of healthcare in general and chiropractic practice in particular, which are the subject of the Act.69 The issue is whether the definitions that the Board adopted in the rules are consistent with the meaning of the terms in the Act.
We recently applied these principles in another case involving a challenge by TMA to the validity of an administrative rule. In Texas State Board of Examiners of Marriage and Family Therapists v. Texas Medical Association, TMA objected to an agency rule authorizing marriage and family therapists to provide diagnostic assessments using the Diagnostic and Statistical Manual of Mental Disorders, commonly referred to as the DSM.70 TMA argued there, as it also has in this case, that diagnosis is the practice of medicine and that the rule violated both the Licensed Marriage and Family Therapists Act and the MPA by empowering therapists to diagnose any mental disease or disorder. The Therapists Board countered that the rule only authorized therapists to diagnose disorders within their sphere of expertise and training.
We treated the question of the rule‘s validity as a purely legal one and explained that we were obliged to decide it “based on the relevant Texas statutes” and “not on whether [therapists]
In Marriage and Family Therapists, we explained that when the governing statute does “not define . . . key terms, we . . . apply their common, ordinary meaning unless a contrary meaning is apparent from the statute‘s language.”77 We cited for this proposition University of Texas at
The starting point of our analysis in Marriage and Family Therapists was the language of the Licensed Marriage and Family Therapists Act authorizing therapists to engage in “the evaluation and remediation of cognitive, affective, behavioral, or relational dysfunction in the context of marriage or family systems.”80 Against that standard we compared the Therapists Board rule authorizing therapists to provide a diagnostic assessment using the DSM “as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.”81 TMA conceded that the statutory authorization of evaluations included authorization for assessments, but it argued that the inclusion in the rule of the adjective diagnostic was a bridge too far. After looking to both traditional and medical dictionary definitions of the relevant terms to discern their “common, ordinary meanings . . . within their statutory context“,82 we concluded that TMA was “mak[ing] too much of the rule‘s use of the word ‘diagnostic.‘”83
An undercurrent of TMA‘s argument in Marriage and Family Therapists was that any act within the statutory scope of medical practice must necessarily be excluded from the statutory scope of other healthcare professions. We rejected that line of thinking, explaining that “every act that a physician may do is not automatically the unlawful practice of medicine when done by a non-physician, and terminology in one field may overlap with that of another.”85 This principle is clear from the text of the MPA, which defines medical practice in the broadest terms possible—“the diagnosis[] [or] treatment” of any “mental or physical disease or disorder“, “physical deformity“, “or injury”86—and then exempts from the prohibition against unlawfully practicing medicine certain nonphysician healthcare providers “engaged strictly in the practice of” their professions as they are “defined by law“.87 Thus, the question in a
B
The lower courts failed to apply this analysis, even though the court of appeals had the benefit of our decision in Marriage and Family Therapists and even though the legal principles we applied there broke no new ground. The trial court weighed evidence—specifically, witness testimony presenting each side‘s view of the appropriate line between chiropractic and medical neurology—as if it were doing the Board‘s work anew. The court‘s findings of fact and conclusions of law make it clear that it failed to afford Rule 78.1 a presumption of validity. For example, the court found that “[t]here is no commonly accepted definition of musculoskeletal system that includes nerves“—implicitly crediting TMA‘s evidence over the Board‘s. TMA witnesses testified that strict anatomical lines delineate one system of the human body from another.89 Board witnesses testified that chiropractic takes a functional view of the body that does not permit the biomechanical condition of the muscles and bones that comprise the musculoskeletal system to be evaluated apart from the nerves that animate them. The court of appeals gave a nod to our analysis in Marriage and Family Therapists but then held that in light of the witness testimony presented by TMA, “sufficient evidence” supported the trial court‘s judgment that Rule 78.1 exceeds the
With the Board, the Legislature has delegated to a regulated group of practitioners and public members the responsibility of “clarifying what activities are included within the scope of the practice of chiropractic and what activities are outside of that scope“,91 and it has required the Board in doing so to take measures beyond what is required by the APA to “seek input early in the rule development process” from the “persons who will be most affected” by it.92 Judges are experts in statutory analysis, not in healthcare. To prevent expensive and time-consuming usurpations of administrative agencies’ policymaking work, the court‘s inquiry in a
C
TMA contends that
TMA‘s argument echoes its position in Marriage and Family Therapists that a rule permitting therapists to make diagnostic assessments allows them to diagnose any mental disorder. But here, as was the case there, the rule‘s words cannot be read beyond their context. Nothing in Rule 78.1 suggests that chiropractic practice extends beyond the evaluation and treatment of the musculoskeletal system. The rule merely acknowledges the reality that chiropractors cannot ignore the presence and effect of associated nerves that help shape the musculoskeletal system and allow it to move. The Board‘s definition of musculoskeletal system only includes those nerves “associated” with the muscles, tendons, ligaments, bones, joints, and tissues “that move the body and maintain its form.” For Rule 78.1 to exceed its proper scope, the rule must contravene the Act‘s specific words or purpose. It does neither. Nothing in the text of either definition gives chiropractors carte blanche to practice medical neurology, and the Board has rejected the notion that chiropractic is so broad.
Though the Act contains some specific exclusions from chiropractic—“incisive or surgical procedures“, prescribing drugs, and using x-rays or other therapies that expose the body to radiation95—it certainly cannot be read to include all healthcare that it does not specifically exclude, and the Board makes no argument to the contrary. Because chiropractic is carved out of the comprehensive regulation of the practice of medicine under the MPA, its scope under the Act must be limited. Rule 78.1 acknowledges and respects the Act‘s boundaries.
TMA argues that no commonly accepted definition of the musculoskeletal system includes nerves. But TMA over reads Rule 78.1. The rule merely recognizes the reality that musculoskeletal dysfunctions cannot be diagnosed or treated without considering associated nerves. Medical neurology is a far broader field. The Board argues that chiropractors must consider the nerves involved in a musculoskeletal system in order to determine whether referral to a neurologist is required. TMA characterizes this view as functional and argues that it ignores the fact that body systems are
For all of these reasons, we conclude that TMA “makes too much” of the references to nerves in the Board‘s definitions of musculoskeletal system and subluxation complex.101 TMA has not overcome the definitions’ presumption of validity by demonstrating that they contravene specific language in the Act or run counter to the Act‘s objectives.102
D
TMA also challenges
But the Board also presented evidence that VONT can be used to facilitate chiropractic treatment. One chiropractor witness, Frederick Carrick, D.O., testified by deposition that because spinal joints move reflexively opposite the direction of eye movements, VONT can “tell[] you the integrity of spinal musculature in reaction reflexogenically to an environmental perturbation” and “can be indispensable in [demonstrating] what side of the spine to treat“.104 The Board explains that a chiropractor can also use VONT to rule out nonchiropractic causes of certain disorders, which can help the chiropractor to determine whether chiropractic treatment is appropriate or whether the patient should be referred to another healthcare provider. The Board gives the example of a patient who comes to a chiropractor with dizziness, a common occurrence. Dizziness has numerous possible causes, many of which are outside the scope of chiropractic. But one possible cause is cervical vertigo—dizziness arising from head-and-neck misalignment, often the result of a sports injury or car accident—which can be treated with manual manipulation. The Board presented evidence that a negative VONT test can help to confirm a diagnosis of cervical vertigo by ruling out a problem in the brain, inner ear, or eyes, a process known as making a differential diagnosis.
Though the dissent agrees that Rule 78.1‘s references to nerves in defining the musculoskeletal system and the subluxation complex properly “clarify the Legislature‘s scope-of-practice
The dissent also echoes TMA‘s argument that the Act does not permit chiropractors to make differential diagnoses by ruling out possible neurological causes of a patient‘s dysfunction. The dissent says that “[t]o ‘rule out’ a neurological condition based on a neurological examination is to say, affirmatively, that it is not a cause of the patient‘s symptoms.”108 The accuracy of this characterization is questionable. A more realistic explanation of differential diagnosis is that it is the process every healthcare provider goes through when assessing a patient‘s symptoms to determine whether it is appropriate to treat the patient or refer the patient elsewhere. An unchallenged
Simply put, a healthcare provider cannot diagnose a problem without ruling out other potential causes of the problem. In other words, making a differential diagnosis is an unavoidable part of making a diagnosis. Virtually any problem that a chiropractor treats could potentially have a nonchiropractic source. Accepting the dissent‘s position would effectively read into the Act a requirement that patients obtain a referral for chiropractic treatment when the Legislature has not imposed one.
In sum, the VONT-authorization rule is presumptively valid,110 no specific language in the Act forbids chiropractors from performing VONT, and the Board has articulated how a chiropractor might use the test “to diagnose, analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system“.111 Because a
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Applying the proper standard of review, we conclude that TMA has not carried its burden of demonstrating that the challenged provisions of Rule 78.1 contravene the specific text or the objectives of the Act. Accordingly, we reverse the judgment of the court of appeals in part and render judgment declaring that the challenged provisions are valid.
Opinion delivered: January 29, 2021
Nathan L. Hecht
Chief Justice
Notes
Technological Instrumented Vestibular-Ocular-Nystagmus Testing may be performed by a licensee with a diplomate in chiropractic neurology and that has successfully completed 150 hours of clinical and didactic training in the technical and professional components of the procedures as part of coursework in vestibular rehabilitation including the successful completion of a written and performance examination for vestibular specialty or certification. The professional component of these procedures may not be delegated to a technician and must be directly performed by a qualified licensee.