“Current UIL guidelines require pre-participation physical examinations at least before junior high school and in the first and third years of high school.”
“In 2002, the UIL Medical Advisory Committee recommended removing chiropractors from the list of health care professionals who could perform the exams. Mark Cousins, PhD, director of athletics for UIL, says that followed a legal opinion from the Attorney General's office.”
"The rule at that time said it [the physical exam form] was to be signed by a physician," Dr. Cousins said. "There continued to be questions about whether a chiropractor qualified as a physician. So we got an unofficial opinion from our lawyer, who was an assistant attorney general, and he concluded that a chiropractor did not meet the definition of a physician."
“The Texas Chiropractic Association (TCA), however, successfully sued to block the change in UIL rules. At the time, TCA argued that chiropractors are qualified to perform the physicals and that UIL lacks the authority to decide which health care professionals could perform them.”
“The Texas Board of Chiropractic Examiners also contended that UIL was attempting to usurp its authority, saying that it is up to that board to determine what chiropractors can and cannot do.”
"I'm not familiar with any kind of chiropractic program where the use of a stethoscope is extensively taught, much less the interpretation of what you're hearing," [an M.D. said], who himself does a significant number of physical exams each year for student athletes. He describes the sports physical exam he performs as a ‘complete head-to-toe examination.’"
In its August 2002 issue, the Texas Journal of Chiropractic reported the following details of its lawsuit:
The Texas Chiropractic Association filed suit on Wednesday, July 10, 2002, against the University Interscholastic League and its Executive Director, William Farney. The case was heard in the 250th Judicial District Court of Travis County and has been assigned Cause No. GN200215.
Any and all information which could be pertinent to the case should be faxed to the Texas Chiropractic Association [at its fax number]. Individual Doctors of Chiropractic should not contact the TCA attorney with regard to this matter, but may contact the TCA offices for information regarding the case and its progress, which is estimated to take a minimum of six months to its final determination.
Following are excerpts from the petition:
Nature of the Case
2. Plaintiff seeks (a) a declaration, pursuant to section 2001.038 et. seq., that a rule and related forms disseminated by the University Interscholastic League, UIL Rules 1205(a)(1) and 1478(d)(4), (the Rules) are invalid; (b) a declaration, pursuant to Chapter 37 of the Civil Practice and Remedies Code to determine that an informal Attorney General Opinion (the Helmcamp Opinion) upon which the rules are based is invalid; (c) a declaration, pursuant to Chapter 37, that the Rules violate article 21.52(3)(d) of the Texas Insurance Code; and (e) ancillary injunctive relief to enjoin enforcement of the Rules and dissemination of the forms based on the Rule pending resolution of these issues.
8. In April of this year, the UIL began disseminating to school districts statewide the UIL Pre-participation Physical Evaluation Form (“the Form”). (Exhibit P-1.) School districts in Texas must obtain this form from students who wish to participate in interscholastic athletics. The forms are based on and contain language from UIL Rules 1205(a)(1) and 1478(d)(4). The language at issue excludes Doctors of Chiropractic from the list of health care providers that may perform physical examinations and sign the form.
9. As authority for the Rules and the Form, the UIL relies on what it believes to be an “official opinion” of the Office of the Attorney General. (Exhibits P-2, P-3.) The opinion at issue is a three paragraph, one page letter, dated February 4, 2002, from Mr. Dewey E. He’ll camp, III, Assistant Attorney General to Dr. Charles Breithaupt. (Exhibit P-4). The letter is not an official opinion of the Office of the Attorney General, which are issued after briefing and extensive review by the Opinion Committee of the Attorney General, not by individual assistant attorneys general who represent agencies.
10. Although the UIL disclaims any effort to define what constitutes a physician, the UIL rules and form make a determination regarding who may perform physical examinations and, therefore, regarding the scope of practice of Chiropractic. The rules and form prevent Doctors of Chiropractic from performing required athletic physical examinations and from signing the forms to accompany those physical examinations. Those are services that have in fact been provided across the state for many years by Chiropractors. The UIL has no authority to dictate what a Chiropractor may and may not do in this treatment of patients.
11. The Texas Legislature delegated the power to determine the scope of Chiropraxtic to the Board of Chiropractic Examiners (“TBCE”) – not to the UIL or the Office of the Attorney General. As a result, even if the “opinion”at issue were an official opinion of the Office of the Attorney General, it could not override the authority of the regulatory agency designated to regulate the practice of Chiropractic.
12. Texas case law requires that an agency’s interpretation of its own statute be given deference. If the statue at issue can reasonably be interpreted as the agency has interpreted it and if the agency interpretation is in harmony with the rest of the statue, the courts are bound to accept that interpretation inventory if other reasonable interpretation exist. Berry v. State Farm Mutual Auto Ins. Co., 9 S.W.3D 884, 893 (Tex App. Austin, 2000, no writ)/ Gene Harmon Ford. V David McDavid Nissan, 997 S.W.2D 298, 305 (Tex. App. – Austin, 1999, Pet. Denied). The Office of the Attorney General and the UIL are subject to the same constraint. The TBCE has indicated that it believes that Chiropractors may perform the physical examinations at issue and similar examinations.
13. The Office of the Attorney General, in official opinions, has deferred to licensing boards’ expertise on such matters. Tex. Att’y Gen. Op. No. JC-379 (2002)(citing DM-423, 1996)(deferring to the respective boards issue of whether hyperbaric oxygen therapy is within the practice of medicine and/or podiatry); DM-443 (1996)(deferring to respective boards and concluding that needle EMG could be within the practice of both medicine and physical therapy)); see also Tex Atty Gen. Op. No. JC_0211(2000) at 1 (“This office does not have the expertise to make a decision as to whether a particular act is being done to ‘hair’ or ’beard’. In Opinion JC-0379, at 3, the attorney general states “this office has and professes no expertise with regard to matters such as these.”
14. Part of the reason for deference is that matters involving the scope of practice may involve questions of facts. For example, the attorney general stated in Opinion DM-425, that “[w]hether the procedures you have listed involve cutting is a question of fact that cannot be answered in the opinion process.” Tex. Att’y Gen. Op. No. DM-425 (1996), at 3 (emphasis added). In Opinion DM-443, the attorney general stated that “[t]his office has and professes no skill in the technical questions which may be involved here, for the resolution of which we will defer to the board.” Tex. Att’y Gen. Op. No. DM-425, at 1. The TBCE is the only agency that may make legislative findings of fact on the scope of practice of Chiropractic.
15. While the Helmcamp Opinion contains some general statements that may be correct, the basis is incomplete and the conclusion is just plain wrong. The opinion makes a global statement that a “review of Texas statutes reveals that there is a clear distinction between the term “physician” and “Chiropractor,” and the terms are not synonymous.” Of course the terms are not synonymous. Legal inquiry cannot end with that general statement, however. The meaning depends on context and on substance.
16. The opinion contains no analysis of the laws cited or of the context in which the terms appear. For example, the opinion references the Texas Insurance Code, which prohibits carriers (and certain others acting as carriers) from discriminating against health care providers acting within the scope of their practice. Although the opinion references the Texas Labor Code (in specific, the Workers Compensation Act), it fails to note the position of the Texas Workers Compensation Commission, that it will not decide scope of practice issues but instead will defer to the appropriate licensing agency.
17. The Helmcamp opinion also misapplies Tex. Att’y Gen. Op. No JM-125 (1984), which has no direct relevance to the UIL issue. That opinion addressed the authority of the Board of Medical Examiners to pass certain regulations regarding the practice of acupuncture. In passing, the opinion noted that the Medical Practice Act prohibits practicing medicine without a license but that the act expressly that Chiropractors and other health care providers practicing within the scope of their license were not practicing medicine with a license. Opinion JM-125 sheds no light on the issue presented here.
18. The Helmcamp opinion does not address the other statues that expressly provide that Doctors of Chiropractic may, within their scope of practice, perform physical examinations. See, e.g., TEX. LABOR CODE ANN. § 502.064; TEX LABOR CODE ANN. §451.001.
19. The UIL Rules and Form are discriminatory. The Rules and the Form allow a physician’s assistant, a registered nurse, and/or an advanced nurse practitioner to perform the required physical examinations. The professionals have less training than Doctors of Chiropractic. As a result, allowing them to perform physical examinations while not allowing Doctors of Chiropractic to perform the same examinations is discriminatory. In addition, to the extent that the exclusion of Doctors of Chiropractic is based on the premise that performing the physical examinations is the practice of medicine, if it is the practice of medicine for a chiropractor to perform a physical examination and report the results, then it is also the practice of medicine for a physician’s assistant, a registered nurse, and/or an advanced nurse practitioner to do so. If it is not the practice of medicine, then it is within the scope of practice of Chiropractic and blatant discrimination to prohibit Chiropractors from performing the required physical examinations because they are similarly situated to physician’s assistant, a registered nurse, and/or an advanced nurse practitioner.
20. The UIL takes the position that the inclusion of these other professionals is required because “Senate Bill 1131 … obligated … a state agency to accept medical certificates and physical forms signed by properly licensed nurse practitioners and properly licensed physician assistants.” (Exhibit P-2.) What the UIL omits is that Senate Bill 1131 amended section 21.52(3) by adding these health care practitioners to a list that already included Doctors of Chiropractic. TEX. INS. CODE ANN. §21.52(3)(a)(1). As a result, if the UIL is “obligated” to accept medical certificates from nurse practitioners and physician assistants, it is also obligated to accept medical certificates from Chiropractors. Section 21.52(3) of the Insurance Code prohibits discrimination among health care professionals by carriers and others acting as insurers (self insured, risk pools, etc.).
21.The UIL communications to the public and to school districts threaten school districts not to allow Chiropractors to perform physicals and sign the Form, stating that school districts that accept physicals signed by other than medical doctors do so with “risk of liability.” (Exhibits P-1, P-2.) The UIL is coercing school districts and exposing them to liability under section 21.52(3) by urging them to discriminate against Chiropractors.
Declaratory Judgement
22. Plaintiff TCA adopts and incorporates the preceding paragraphs 1-21 set forth above, as if set out fully herein, in support of its request that this Court issue a declaratory judgment (a) that the UIL Rules, Rules 1205(a)(1) and 1478(d)(4), and the form, the UIL Pre-participation Physical Evaluation Form, exceed the UILS’s authority, constitute a denial of equal protection and a violation of article 21.52(3)(d) of the Texas Insurance Code; (b) that the Helmcamp Opinion was not issued as an official attorney general opinion and is not a correct statement of the law; (c) that the UIL lacks the authority to define the scope of practice of Chiropractic in Texas; (d) that the Texas Board of Chiropractic Examiners has the authority to define and regulate the scope of practice of Chiropractic in Texas; (e) that the Constitution and the laws of the State of Texas prohibit the Attorney General and the UIL from suspending or otherwise interfering with the regulatory scheme established by the Legislature; and (f) that Doctors of Chiropractic may perform the physical examinations required of students participating in interscholastic sports.
WHEREFORE, Plaintiff TCA requests that the Defendants be cited to appear and answer and that the Court issue the declaratory judgment requested herein, issue the temporary and permanent injunctions requested herein, award reasonable attorney’s fees and taxable costs of this lawsuit, and grant to Plaintiff TCA such other and further relief, at law and in equity, to which it shows itself to be justly entitled.
