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Scope-of-practice challenge from chiropractors heads back to trial

A Texas appellate court says a lower court must determine what Technological Instrumented Vestibular-Ocular-Nystagmus Testing is before deciding whether only physicians can perform it.

By Tanya Albert Henry — Posted Dec. 27, 2012

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Texas physicians will have to convince a trial court that a diagnostic procedure called Technological Instrumented Vestibular-Ocular-Nystagmus Testing — or VONT — is beyond chiropractors’ scope of practice.

A district court, through summary judgment, earlier had ruled that chiropractors could not perform VONT because it expands their practice beyond what Texas law allows. But the Texas Court of Appeals, 3rd District in Austin reversed that decision in late November, saying it was unclear how VONT is defined. The court said that without that clarity, a trial needs to be held to determine those facts in the case that the Texas Medical Assn. filed against the Texas Board of Chiropractic Examiners.

“What procedures are covered by the term, what are the purposes for performing those procedures and what do those procedures reveal about the patient, specifically about the biomechanical condition of the spine or musculoskeletal system?” the court asked in its opinion.

The TMA had challenged a TBCE rule that said chiropractors had the right to perform VONT. In its motion asking the court to declare the rule invalid, the association said the procedure expanded chiropractors’ scope of practice into the practice of medicine because “VONT is a test whose purpose is to diagnose a problem of the brain, inner ears or eyes.”

The board, though, said in its answer to the court that “VONT is a group of clinical laboratory tests that are used to evaluate posture and/or joint positional controls relating to involuntary eye movements and that it can be used to analyze and evaluate balance disorders associated with the biomechanics of the musculoskeletal system,” something Texas law allows them to do (http://www.3rdcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=21626).

The appellate court said that although the TMA and TBCE “state their positions regarding what those procedures are designed to reveal, there is no consensus” that is what the trial court will have to determine.

The TMA was disappointed with the court’s ruling and maintains that the TBCE rule would wrongly allow chiropractors to practice medicine.

“The testing is done to determine if there are defects in the eyes, ears or brain — anything from a common viral infection all the way through a brain tumor,” said David Bragg, outside trial counsel for the TMA. “Why have [chiropractors] do this test if they cannot treat the patient or if they might miss something because they don’t have the training of a neurologist?”

The Texas Chiropractic Assn. was pleased with the ruling. TCA President Jorge Garcia, DC, said diagnostic tests often require chiropractors to look beyond the musculoskeletal system and that physicians’ argument that chiropractors aren’t qualified to perform VONT is a misconception.

“It is what chiropractors have done for ages — diagnosing the patient,” he said. “Chiropractors who perform this take extensive postgraduate courses in that area of the body and are very well trained.”

The TBCE had no comment because of the ongoing litigation in this case, as well as a separate case in which the TMA is challenging other scope-of-practice rules.

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