A performance audit of the Board of Chiropractic Examiners

              STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
A PERFORMANCE AUDIT
OF THE
BOARD OF CHIROPRACTIC EXAMINERS
DECEMBER 1981
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81 - 21
DOUGLAS Fi. NORTON. CPA
AUDITOR GENERAL
STATE OF ARIZONA
OFFICE OF THE
AUDITOR GENERAL
December 28, 1981
Members of the Arizona L e g i s l a t u r e
The Honorable Bruce Babbitt, Governor
D r . Gary G. LeDoux, Chairman
Board of Chiropractic Examiners
Transmitted herewith is a report of the Auditor General, A Performance
Audit of the Board of Chiropractic Examiners. This report is i n response
to a January 30, 1980, r e s o l u t i o n of t h e J o i n t L e g i s l a t i v e Oversight
Committee. The performance a u d i t was conducted a s a p a r t of the Sunset
review s e t f o r t h i n A. R. S. $ 941- 2351 through 41- 2379.
The blue pages present a summary of the r e p o r t ; a response from the
Chairman, D r . Gary LeDoux, is found on the yellow pages preceding the
appendices.
My s t a f f and I w i l l be pleased t o discuss o r c l a r i f y items i n the report.
Respectfully submitted,
~ o u ~ l aR/ . s Norton
Auditor General
S t a f f : Gerald A. S i l v a
William Thomson
Steve Thacker
U r s C. Eauder
Richard D. Stephenson
Enclosure
1 1 1 WEST MONROE SUITE 600 * PHOENIX. ARIZONA 85003 ( 602) 255- 4385
O F F I C E O F THE AUDITOR GENERAL
A PERFORMANCE AUDIT OF THE
BOARD OF CHIROPRACTIC EXAMINERS
A REPORT TO THE
ARIZONA STATE LEGISLATURE
REPORT 81- 21
TABLE OF CONTENTS
SUMMARY
INTRODUCTION AND BACKGROUND
SUNSET FACTORS
FINDINGS
FINDING I
The majority of the chiropractors i n Arizona may
be exceeding s t a t u t o r y l i m i t a t i o n s regarding
chiropractic practice. I n addition, Board actions
taken t o l i m i t t h e p r a c t i c e of chiropractic may
have actually enlarged t h e p r a c t i c e beyond the
s t a t u t o r y limitations.
CONCLUSION
RECOMMENDATIONS
Statutory changes are needed to improve the Board's
a b i l i t y to resolve complaints.
CONCLUSION
- Page
i
1
5
RECOMMENDATIONS 32
FINDING 111 35
Statutory changes are needed to help ensure
t h a t persons licensed without examination are qualified.
CONCLUSION 45
RECOMMENDATIONS 45
FINDING I V 4 7
Applicants for licensure as chiropractors are not
being examined i n accordance with s t a t u t o r y requirements.
CONCLUSION
RECOMMENDATIONS
FINDING V
- Page
5 3
The Board's 20- day public meeting notice
requirement causes delays i n complaint resolution.
CONCLUSION 54
RECOMMENDATION 54
WRITTEN RESPONSE TO AUDITOR GENERAL REPORT 5 5
APPENDICES
APPENDIX I - Legislative Council Opinion 0- 80- 20, October 20,
1981.
APPENDIX I1 - Legislative Council Opinion 0- 81- 90, September 11,
1981.
LIST OF TABLES
TABLE 1
Board of Chiropractic Examiners revenues and expenditures
and workload indicators f o r f i s c a l years 1977- 78 through
1980- 81 and estimates f o r 1981- 82.
TABLE 2
Summary of diagnostic and treatment methods used by
chiropractors responding to Auditor General survey
TABLE 3
Comparison of s t a t u t o r y provisions f o r d i s c i p l i n a r y
action available t o Board of Chiropractic Examiners
and seven other Arizona health care boards
TABLE 4
Summary of Arizona t e s t r e s u l t s for chiropractors
licensed through comity who could not pass the Arizona
Board examination
TABLE 5
Summary of key reciprocity/ comity features f o r Arizona
health regulatory boards
Page
3
SUMMARY
The Office of the Auditor General has conducted a performance audit of the
Board of Chiropractic Examiners i n response t o a resolution of the J o i n t
Legislative Oversight Committee of January 30, 1980. This performance
audit was conducted as part of the Sunset Review s e t f o r t h i n Arizona
Revised S t a t u t e s ( A. R. s. ) $$ 41- 2351 through 41- 2379.
Chiropractic as it is known today originated i n the l a t e 1800' s when
D. D. Palmer began t r e a t i n g p a t i e n t s suffering from a l l types of ailments
and diseases by manipulation o f t h e spine. Palmer f i r s t opened a
chiropractic school i n 1897.
Chiropractic quickly became a popular a l t e r n a t i v e t o t r a d i t i o n a l medical
care, as indicated by the existence of more than 100 chiropractic schools
i n the 1920' s. Many of t h e s e c h i r o p r a c t i c c o l l e g e s disappeared as s t a t e
licensing boards raised the educational requirements f o r licensure.
Currently there are only 16 colleges teaching chiropractic i n the U. S.
The Arizona Board of Chiropractic Examiners was created by s t a t u t e i n
1921. A s of August 1981, approximately 800 chiropractors held Arizona
l i c e n s e s , although only 500 were practicing i n the s t a t e . The Board is
2unded through fees charged f o r examination and licensure.
We found t h a t the majority of Arizona chiropractors may be exceeding
statutory l i m i t s on the practice of chiropractic. A. R. S. $ 32- 925 - e i t h e r
before or a f t e r July 1, 1981 - may not authorize many of the treatment
nethods widely used by chiropractors. A Board rule defining the scope of
practice appears to enlarge the s t a t u t o r y d e f i n i t i o n and therefore may
c o n s t i t u t e an invalid exercise of the Board's powers. The current
statutory d e f i n i t i o n could be improved by eliminating language t h a t is
l e g a l l y c i r c u i t o u s and misleading and by more c l e a r l y defining acceptable
practices. ( page 11)
We also found t h a t the Board's s t a t u t o r y authority t o investigate and
resolve complaints is substandard when compared to other Arizona health
regulatory boards. S p e c i f i c a l l y , grounds f o r d i s c i p l i n a r y a c t i o n s are not
adequately defined and the Board's authority t o examine and copy patient
records prior t o a hearing is unclear. I n a d d i t i o n , t h e Board does not
have s u f f i c i e n t authority t o obtain information about malpractice actions
against chiropractors. A s a rezl~ l- 4; the Board's a b i l i t y t o regulate
chiropractic p r a c t i t i o n e r s is impaired. ( page 25 )
In addition, we found t h a t the current " reciprocity" licensing law i n
r e a l i t y provides for licensure by comity and impairs the Board's a b i l i t y
t o protect the public. This s t a t u t e needs t o be amended because 1) other
. zates' examination standards may not be equivalent to Arizona's, 2) other
Arizona health regulatory boards t h a t issue licenses without examination
have more stringent requirements, and 3) examination and educational
requirements are unclear. Further, s t a t u t o r y changes are needed to
enhance the Board's a b i l i t y to d i s c i p l i n e a licensee whose license has
been suspended or revoked i n another s t a t e . ( page 35)
Our review f u r t h e r showed t h a t the manner i n which t h e w r i t t e n licensing
examination is graded does not comply with A. R. S. $ 32- 922.~. I n addition,
the Board appears t o discriminate against candidates who take the national
written examination instead of the state- administered examination.
( page 47)
Finally, we found t h a t the Board of Chiropractic Exaniners' statutory
requirement to provide 20 days public notice of its meetings causes delays
i n the Board's resolutions of complai- nts. ( page 53)
Consideration should be given t o the following recommendatior~ s:
1. The Board amend Rule R4- 7- 01, paragraphs 7 and 8, t o forbid
chiropractic practices t h a t are s t a t u t o r i l y prohibited.
2. The Board notify a l l licensees of practices which may be i n
v i o l a t i o n of the s t a t u t o r y l i m i t s on chiropractic p r a c t i c e , as
explained i n Finding I.
3. The Board p e t i t i o n t h e Legislature f o r s t a t u t o r y changes
regerdizg ~.:* i>; jd of practice which it Selieves are nea6ed t o :; wep
the laws current with the s t a t e of the chiropractic profession.
4. The Legislature review the l i m i t a t i o n s it intended i n the current
s t a t u t o r y d e f i n i t i o n of the chiropractic scope of practice. If
it intended t h a t chizcyractors w e procedares such as
physiotherapy modalities or laboratory analysis, then the
s t a t u t e s should be amended to s p e c i f i c a l l y provide f o r such
practices. S t a t u t e s r e l a t i n g to medicine, physical therapy and
pharmacy may also need amending t o allow such practices.
5. A t a minimm, t h e Legislature should amend A. R. S. $ 32- 925,
subsection A, paragraph 3, by:
a) eliminating the phrase " generally used i n t h e p r a c t i c e of
chiropractic," and
b) defining the term " a n a l y t i c a l instrument."
6. The Legislature amend A. R. S. $ 32- 924, subsection A, t o provide
more comprehensive grounds f o r d i s c i p l i n a r y action.
7. The Legislature amend A. R. S. $ 32- 924 to allow the examination and
copying of p a t i e n t records and other dsc; unc=-; s 52 s s n - e c t i o n with
an investigation, and to include refusal to cooperate a s grounds
f o r d i s c i p l i n a r y action.
8. The Legislature add provisions t o the insurance s t a t u t e s
requiring insurers to report malpractice actions against
chiropractors t o the Chiropractic Board. Provisions should also
be added to require the Department of Insurance to monitor
compliance with these requirements and t o impose penalties f o r
noncompliance.
The Legislature amend A. R. S. $ 32- 922.01 t o require that an
applicant have passed an examination equivalent t o the Arizona
examination, including a p r a c t i c a l examination, i n order to be
licensed without examination i n Arizona.
While t h e c u r r e n t law is i n force, the Board allow t h e n a t i o n a l
examination t o s a t i s f y the written examination requirement f o r
licensure by comity.
The Board require graduation from an approved school i n order to
qualify f o r licensure by comity.
The Board e s t a b l i s h procedures t o periodically discover what
d i s c i p l i n a r y a c t i o n s have been taken by licensing boards i n other
s t a t e s against Arizona licensees.
The Legislature amend chiropractic s t a t u t e s as needed to give the
Board authority s i m i l a r to that given the Board of Medical
Examiners for taking d i s c i p l i n a r y a c t i o n against out- of- state
licensees.
The Legislature amend A. R. S. $ 72- 922.~ to provide f o r the current
scoring procedures used by NBCE and the Board.
The Board grant waiver of the written examination t o candidates
who scored a t l e a s t 60 on each of the 10 comparable subjects of
the national examination with an overall average score of 75 f o r
the 10 subjects.
The Legislature amend ARS 32- 902, subsection B, by s t r i k i n g the
20- day meeting notice requirement, thereby allowing the 24- hour
requirement cf t5e open meetfzg laws to apply to the Board of
Chiropractic Examiners.
INTRODUCTION AND BACKGROUND
The Office of the Auditor General has conducted a performance audit of the
Board of Chiropractic Examiners i n response t o a resolution of the Joint
Legislative Oversight Committee of January 30, 1980. This performance
audit was conducted a s a part of the Sunset Review as s e t f o r t h i n Arizona
Revised S t a t u t e s ( A. R. s.) $$ 41- 2351 through 41- 2379.
H i s t o r i c a l Background of Chiropractic
Chiropractic as it is known today originated i n the l a t e 1800' s when
D. D. Palmer began t r e a t i n g p a t i e n t s suffering from a l l types of ailments
and diseases by manipulation of the spine. Palmer f i r s t opened a
chiropractic school i n 1897.
Chiropractic quickly became a popular a l t e r n a t i v e t o t r a d i t i o n a l medical
care, a s indicated by the existence of more than 100 chiropractic schools
i n the 1920' s. Many of these chiropractic colleges disappeared as s t a t e
licensing boards r a i s e d t h e educational requirements f o r licensure.
Currently there are only 16 colleges teaching ~ B l r o p r s c - i i ci n the U. S.
Soon a f t e r its inception the chiropractic profession divided i n t o two
persuasions of professional philosophy. One persuasion, t h e " s t r a i g h t
p r a c t i t i o n e r s , " adhere largely to D. D. Palmer's teachings, which a s s e r t
t h a t a majority of diseases and ailments are caused by p a r t i a l
dislocations i n the spine ( subluxations) and can be cured by spinal
adjustments. Diagnosis and treatment are therefore confined exclusively
to the detection and adjustment of subluxations. The other persuasion,
that of the " mixer p r a c t i t i o n e r s , " u t i l i z e s d i f f e r e n t i a l diagnosis* and
various therapeutic methods t o complement adjustment of the spine. Some
of the most common therapies include heat, cold, d i e t or n u t r i t i o n a l
supplements. Most p r a c t i t i o n e r s today are mixers of various degrees.
Approximately 20,000 doctors of chiropractic c u r r e n t l y p r a c t i c e i n the U. S.
* Dorland's Medical Dictionary defines d i f f e r e n t i a l diagnosis as " the
determination of which one of two or more diseases o r conditions a
patient is suffering from, by systematically comparing and contrasting
t h e i r c l i n i c a l findings."
The Arizona Board of Chiropractic Examiners
The Board of Chiropractic Examiners was created by s t a t u t e i n 1921. Since
then the chiropractic s t a t u t e s have undergone several s i g n i f i c a n t changes,
including:
1. Higher educational standards required of candidates f o r
licensure. In 1959 the minimum amount of chiropractic education
required was increased from three to four years.
2. Inclusion of two lay persons cn the Board, beginning i n 1976.
The Board now consists of t h r e e c h i r o p r a c t o r s and two lay
members, each serving five- year terms and appointed by the
governor.
3. Adoption of a comity provision i n 1980, allowing f o r licensure of
out- of- state p r a c t i t i o n e r s without examination.
4. Amendaent of the scope of practice provision - also i n 1980, but
not taking e f f e c t u n t i l July 1, 1981.
Due t o an increased workload handled by the Board, a full- time secretary
was approved beginning with the 1978- 79 f i s c a l year. A s of August 1981
approximately 800 chiropractors held Arizona l i c e n s e s , although only 500
were practicing i n the s t a t e .
The Board is funded through fees charged for examination and licensure.
Ninety percent of the fees collected are deposited i n the Chiropractic
Board fund. The remaining ten percent are deposited i n the S t a t e General
Fund. Table 1 presents a comparison of Board revenues and expenditures
and workload indicators f o r f i s c a l years 1977- 78 through 1980- 81 and
estimates f o r 1981- 82.
TABLE 1
BOARD OF C!! I? OP7XC? TY EXAMINERS
REVENUES AND EXPENDITURES AND WORKLOAD INDICATORS FOR FISCAL YEARS 1977- 78
THROUGH 1980- 81 AND ESTIMATES FOR 1981- 82
Revenue from license issuance
and examinations 42.660 $- 1-, 9 52 4225_ 5. 88.100
90 percent available to board 38,400 37, c? VO 42,600 79,300
Balance forward from the
' previous year 17,500 22,800 27,800* 30,800" Total funds 55,900 60,600 70,400 110,100
Expenditures:
Personal services
Employee related
m Prof. & outside services
Travel i n s t a t e
Travel out of s t a t e
Other operating expenses
Equipment
Total Expenditures
Balance forward
Full- Time Equivalent Positions 1-. 0 1-. 0 1-. 0
Workload Indicators:
8
Applications requested
Examinations
Admini st ered
New licenses
Renewed licenses
Complaints received
C
The Auditor General expresses gratitude to the Board of Chiropractic
Examiners and its s t a f f f o r t h e i r cooperation and assistance during
the course of t h e a u d i t .
* Differences between closing and opening balances f o r f i s c a l
years 1978- 79 through 1981- 82 due to rounding and accounting
adjustments a f t e r budget documents were submitted.
SUNSET FACTORS
Nine factors are considered t o determine, i n p a r t , whether the Board of
Chiropractic Examiners shoi2l. d be continued or terminated, i n accordance
with A. R. S. $$ 41- 2351 through 41- 2379.
SUNSET FACTOR: THE OBJECTIVE AND PURPOSE
I N ESTABLISHING THE BOARD
The purpose of the Board is not s t a t e d e x p l i c i t l y i n Arizona law.
According to one Board member, the ~ o a r d ' s purpose is:
" To p r o t e c t t h e public... from unqualified and dishonest
and/ or une% hical chiropractic p r a c t i t i o n e r s . To
maintain a high standard of chiropractic care f o r the
c i t i z e n s of Arizona."
The Board attempts to accomplish t h i s purpose by examining and licensing
applicants and by regulating licensees through the complaint process.
SUNSET FACTOR: THE DEGREE TO WHICH THE BOARD
HAS BEEN ABLE TO RESPOND TO THE NEEDS OF THE PUBLIC
AND THE EFFICIENCY WITH WHICH IT HAS OPERATED
The Board appears t o be a c t i v e l y pursuing complaints and has taken
d i s c i p l i n a r y a c t i o n against several chiropractors i n recent years. The
Board's a b i l i t y t o resolve complaints is impaired, however, by several
deficiencies i n t h e c h i r o p r a c t i c s t a t u t e s . ( page 25)
The efficiency of the Board's operations is negatively impacted by the
following factors:
- a dramatic increase i n license applications since the reciprocity
law went i n t o e f f e c t , delaying the processing of many
applications, ( page 44)
- overly r e s t r i c t i v e requirements f o r waiving the Board's written
examination, which cause the Board t o t e s t applicants who have
already demonstrated equivalent competency on the national
examination, ( page 48)
- a 20- day meeting notice requirement which, according to Board
s t a f f , unnecessarily delays the resolution of complaints.
( page 53
SUNSET FACTOR: THE EXTENT TO WHICH THE
BOARD HAS OPERATED WITHIN THE PUBLIC INTEREST
We found t h a t the Board generally has operated within the public i n t e r e s t ,
with the following exceptions:
1. The Board has adopted a r u l e which may exceed s t a t u t o r y l i m i t s on
the chiropractic scope of practice- ( page 19)
2. Written examinations do not appear t o be scored i n accordance
with s t a t u t o r y requirements. ( page 47)
3. The Board appears t o discriminate a g a i n s t a p p l i c a n t s who take the
national examination instead of the state- administered written
exam. ( page 48)
SUNSET FACTOR: THE EXTENT TO WHICH
RULES AND REGULATIONS PROr. RJLGATED BY THE
BOARD ARE CONSISTENT WITH LEGISLATIVE MANDATE
Administrative rules and regalhtians promulgated by the Bcard must be
reviewed for consistency and l e g a l i t y and approved by the Attorney General
prior t o t h e i r implementation. However, according to an opinion issued by
Legislative Council, the Board has adopted a r u l e which appears to expand
zhe chiropractic scope of pracclce beyond zhat wnicii is permitted by
s t a t u t e . ( page 19)
SUNSET FACTOR: THE EXTENT TO WHICH THE BOARD
HAS ENCOURAGED INPUT FROM THE PUB- LIC B- XFORE
PROMTLGATING ITS RULES AND REGULATIONS AND THE
EXTENT TO WHICH IT HAS INFORMED THE PUBLIC AS TO
ITS ACTIONS AND THEIR EXPECTED IMPACT ON THE PUBLIC
The Board has not adopted any rules since 1977. A rule regarding
continuing education was repealed i n 1979 subsequent t o the LegislsJ:: lre's
repeal of a continuing education provision i n the chiropractic s t a t u t e s .
According to Board s t a f f , the Board w i l l be proposing rules i n the near
future and intends to use the following means to notify the public and
s o l i c i t input:
- post notices as required by law
- issue press release
- notify the Chiropractic Association of Arizona
- mail proposed rules to a l l licensees
In addition, the Board has two lay members who represent t h e general
public.
The Board n o t i f i e s individual cixipicrinants and licensees before holding
hearings or taking d i s c i p l i n a r y action.
Minutes of Board meetings and t r a n s c r i p t s of formal hearings are available
for public inspection a t the Board o f f i c e .
SUflSET FACTOR: THE EXTENT TO WHLCII TEIX 3C; iRD
HAS BEEN ABLE TO INVESTIGATE AND RESOLVE
COMPLAINTS THAT ARE WITHIN ITS JURISDICTION
The Board's a b i l i t y to investigate and resolve complaints is impaired by
the following conditions:
- inadequate s t a t u t o r y grounds f o r d i s c i p l i n a r y a c t i o n , ( page 25)
- uncertainty regsrding the Board's power t o obtain and examine
records - n- r l o r t o a hearing, ( pee 29)
- lack of s t a t u t o r y authority to o b t a i n c h i r o p r a c t i c malpractice
information from insurers. ( page 31)
SUNSET FACTOR: THE EXTENT TO WHICH THE ATTORNEY GENERAL
OR ANY OTHER APPLICABLE AGENCY OF STATE GOVERTJMENT HAS THE
AUTHORITY TO PROSECUTE ACTIONS UNDER ENABLING LEGISLATION
A. R. S. $ 32- 927 s t a t e s :
" A person is g u i l t y of a misdemeanor who:
" 1. Practices or attempts t o practice chiropractic
without a license.
" 2. Buys, s e l l s or fraudulently obtains a diploma or
license t o practice chiropractic, whether recorded
or not.
" 3. Uses the t i t l e chiropractor, D. C., or any other
word or t i t l e to induce belief t h a t he is engaged
i n t h e p r a c t i c e of chiropractic, without a license
as a chiropractor.
" 4. Violates any provisions of t h i s chapter."
The County Attorney and S t a t e Attorney General have authority t o prosecute
violations of c h i r o p r a c t i c s t a t u t e s . I n addition, i n accordance with
A. R. S. $ 32- 928, the County Attorney, Attorney General or the Board may
seek a court i n j u n c t i o n a g a i n s t a person who is p r a c t i c i n g c h i r o p r a c t i c
without a license. However, according t o the Board Chairman, the Board
cannot e f f e c t i v e l y use A. R. S. $$ 32- 927 and 32- 928 unless the p r a c t i t i o n e r
is a c t u a l l y holding himself out to be a chiropractor.
SUNSET FACTOR: THE EXTEBT TO ' WHICH THE BOARD HAS
ADDRESSED DEFICIENCIES I N ITS ENABLING STATUTES
WHICH PREVENT I T FROM FULFILLING ITS STATUTORY NANDATE
I n 1981 the Board proposed l e g i s l a t i o n which would have addressed several
problems cited i n t h i s report, including the reciprocity licensing
provisions. House B i l l 2450, which embodied these changes, passed the
House but not the Senate. The Board intends t o submit a s i m i l a r b i l l
during the 1982 session.
The Board recently has taken the i n i t i a t i v e t o more c l e a r l y define the
legal scope of practice for chiropractors; however, i n doing so the board
has adopted a r u l e which may expand the scope of practice beyond t h a t
which is permitted by s t a t u t e . ( page 19)
- SUNS ET FACTOR: THE EX - TENT TO WHICH CHANGES ARE
NECESSARY I N THE LAWS OF THE BOARD TO ADEQUATELY
COMPLY WITH THE FACTORS LISTED I N THIS SUBSECTION
Our review revealed the need for the following changes i n the chiropractic
s t a t u t e s :
- c l a r i f y the legal scope of chiropractic p r a c t i c e , ( page 22)
- enhance the Board's authority to investigate and resolve
complaints, ( page 25)
- amend t h e r e c i p r o c i t y l i c e n s i n g law, a age 35)
- amend a provision relating to the scoring of examinations, and
( pag. 47)
- eliminate the 20- day requirement f o r notice of Board meetings.
page 53)
FINDING I
THE MAJORITY OF THE CHIROPRACTORS I N ARIZONA MAY BE EXCEEDING STATUTORY
LIMITATIONS REGARDING CHIROPRACTIC PRACTICE. I N ADDITION, BOARD ACTIONS
TAKEN TO LIXIT THE PRACTICE OF CHIROPRACTIC MAY HAVE ACTUALLY ENLARGED THE
PRACTICE BEYOND THE STATUTORY LIplITATIONS.
The Chiropractic profession i n Arizoz3 may be exceeding statutory
l i m i t a t i o n s on the practice of chiropractlc. Available data suggests t h a t
tks majority of licensed chiropractors i n Arizona use procedures and
provide services t h a t ( a) may exceed the scope of p r a c t i c e c u r r e n t l y
defined i n A. R. S. 532- 925 and ( b) may c o n s t i t u t e v i o l a t i o n s of th*
S t a t e ' s medical, osteopathic, physical therapy and pharmacy practice l a w s .
Specifically, we found:
- The majority of chiropractors i n Arizona incorporate procedures
and services i n t o t h e i r practices t h a t may exceed s t a t u t o r y
d e f i n i t i o n s ;
- The change i n the s t a t u t o r y d e f i n i t i o n s of t h e p r a c t i c e of
chiropract2. r ? ghi. ch became e f f e c t i v e July 1, 1981, may not have,
as some chiropractors believe, materially changed the allowable
procedures and services;
- The Board of Chiropractic Examiners has attempted t o define and
regulate the scope of c h i r o p r a c t i c p r a c t i c e through the
promulgation of an administrative r u l e and a position paper;
however, the rule appears t o enlarge the s t a t u t o r y d e f i n i t i o n of
t h e p r a c t i c e of chiropractic and thus may be an invalid exercise
of the Board's powers;
- A t a minimum, s p e c i f i c provisions of tke current d e f i n i t i o n of
the practice of chiropractic should be reworded t o eliminate
language t h a t is unclear, l e g a l l y c i r c u i t o u s and possibly
misleading.
Practices Exceeding Statutory Limitations
A. R. S. $ 32- 925 defines tlie pi., ;; ca of chiropractic and its l i m i t a t i o n s as
follows :
" A. The practice of chiropractic includes:
" 1. That practice of h e a l t h c a r e which deals with
the detection of subluxations, functional vertebral
dysarthrosis or any a l t e r a t i o n of contiguous spinal
s true tures.
" 2. The chiropractic adjustment and those
procedures preparatory and c ~ mplementary to the
adjustment of the spine and its a r t i c u l a t i o n s f o r the
r e s t o r a t i o n and maintenance of health.
" 3. The use of x- ray and other a n a l y t i c a l
instruments generaily used i n t h e p r a c t i c e of
chiropractic.
" B. A person licensed under t h i s chapter s h a l l
not prescribe or administer medicine or drugs, use
x- rays f o r therapeutic purposes o r practice any branch,
including o b s t e t r i c s , of medicine and surgery or of
osteopathic medicine and surgery or naturopathy unless
such person is otherwise licensed therefor as provided
by law."
We found through personal interviews and observations of the practice of
licensed chiropractors, and through a survey of a sample of ' 61
chiropractors, that the majority of chiropractors i n Arizona may be
violating the l i m i t a t i o n s of A. R. S. $ 32- 925. This conclusion is based on
a Legislative Council opinion regarding the l i m i t a t i o n s of chiropractic
practice as it r e l a t e s to more than one dozen practices and modalities
currently used by chiropractors.
A description of these practices and modalities, and the r e s u l t s of the
Legislative Council opinion, follow. A table presenting the extent of the
use of these practices is shown on page 17.
Unauthorized Therapies
Diathermy, i n f r a r e d , u l t r a v i o l e t and ultrasound therapies used i n
chiropractic practice may v i o l a t e several s t a t u t e s according to
Legislative Council. Legislative Council's revie@ of the chiropractic
scope of practice found t h a t it is e s s e n t i a l l y limited to adjustments of
the spinal column and t h a t t h e s e t h e r a p i e s may exceed the s t a t u t o r y
l i m i t a t i o n s s e t f o r t h i n A. R. S. $ 32- 925. Moreover, because these
therapies may not be authorized f o r chiropractors t h e i r use may also
c o n s t i t u t e v i o l a t i o n s of ( 1) A. R. S. $ 32- 1455 pertaining t o the unlicensed
practice of medicine, ( 2) A. X. S. $ 72- 22041. pertaining t o t h e p r a c t i c e of
physical therapy without a l i c e n s e , and ( 3) A. R. S $ 32- 1901 pertaining t o
the possession of a prescription only drug. l u r ~ n e r , future fedezal
regulations may r e s t r i c t the use of machines such as these to c e r t a i n
licensed p r a c t i t i o n e r s only.
Of the Chiropractors responding to our survey, 59 percent reported using
diathermy, infrared, u l t r a v i o l e t or ultrasound therapies. S i m i l a r l y , f o u r
of the f i v e chiropractors we personally interviewed and observed used one
or more of these therapies.
Cryotherapy, hot %? d --~. 21_?- 1 i-': s snd lnotorized t r a c t i o n a r e a l s o modalities
which may not be authorized f o r chiropractic use. Legislative Council
stated:
" A chiropractor using cryotherapy, hot and cold packs
o r motorized t r a c t i o n Eay be i n violation of A. R. S.
sections $ 32- 925, $ 32- 1455 and $ 32- 2041."
Of the chiropractors responding to our survey, 67 percent reported using
one or more of these therapies.
* A f u l l copy of the Legislative Council opinion is contained as
Appendix I.
Vitamins and n u t r i t i o n a l supplements. Under A. R. S. $ 32- 925 a chiropractor
"... shall not prescribe or administer medicine or drugs ...." Legislative
Council found t h a t s t a t e s t a t u t e s and common l a w meanings established by
j u d i c i a l decision define drugs to be any substances that are used i n the
treatment, prevention or diagnosis of disease. I n A. R. S. $ 32- 1901 the
word " drug" is defined t o include:
" Articles intended f o r use i n the diagnosis, cure,
mitigation, treatment or prevention of disease i n man
or other animals."
With respect to vitamins, t h i s s t a t u t e is more s p e c i f i c a l l y defined i n the
Arizona S t a t e Board of Pharmacy r u l e A. C. R. R. R4- 23- 501 which provides:
" Classification of vitamin products:
" 1. The Board of Pharmacy hereby c l a s s i f i e s a s a
non- drug product any vitamin product which is marketed
only f o r the purpose of supplementing the d i e t ,
provided t h a t the l a b e l supplies adequate information
as to the normal intake of each vitamin contained i n
the preparation and the amount of each vitamin
contained i n the product and i f the same be not held
out f o r the treatment of any disease but merely a s a
food accessory, and provided, f u r t h e r , t h a t the
p r i n c i p a l l a b e l of such product bears the additional
conspicuous statement, to w i t : " NOT FOR MXDICINAL USE."
" 2. Any vitamin preparation which is held out t o
be a treatment f o r anv deficiencv. disease or f o r the
correction of anv svm~ tom of disease. or f o r the
prevention, mitigation or cure of disease, e i t h e r by
d i r e c t statement or by inference, is hereby c l a s s i f i e d
as a dmg within y. 2 ----- r.:- - nf t;~?- ! > * ? ~ q cayc t o"; he
S t a t e of Arizona." ( ~ m ~ h a saidsd ed. )
Therefore, Legislative Council has s t a t e d t h a t a chiropractor "... who
prescribes or administers vitamins f o r the treatment, prevention,
mitigation or cure of disease, including a vitamin deficiency, may v i o l a t e
A. R. S. sections $ 532- 925 and 32- 1455." In addition, if a chiropractor
dispenses the vitamins he may be i n violation of A. R. S. $ 32- 1961 which
r e l a t e s to the s a l e or dispensing of drugs.
Further, because j u d i c i a l decision has defined " drug" and " medicine" t o
include - any substance used i n the treatment, prevention, mitigation or
diagnosis of disease, n u t r i t i o n a l supplements may be considered drugs i f
used for these purposes. A chiropractor administering or recommending
n u t r i t i o n a l supplements for such purposes may be i n violation of A. R. S.
$ 32- 925 and $ 32- 1455. He may also v i o l a t e these s t a t u t e s i f he prescribes
a p a r t i c u l a r d i e t o r p a r t i c u l a r foods and drinks f o r the treatment,
prevention, mitigation or cure of a disease or ailment.
Of the chiropractors responding t o our survey, 70 percent reported t h a t
they include d i e t e t i c s and n u t r i t i o n a l supplements as part of t h e i r
practice.
Orthopedic, neurological and kinesiological examinations may be violations
of s t a t u t o r y l i m i t a t i o n s on the scope of chiropractic practice.
Legislative Council stated:
" A chiropractor may make use of an orthopedic,
neurological o r kinesiological examination of the
patient only to the ext- e-- n 5 tb. t suc3 zc ~ xe~ F-? tioins
f o r the purpose of uncovering the cause or existence of
a misalignment of the spine. Beyond t h i s , such
examinations would c o n s t i t u t e a violation of A. R. S.
sections $ 32- 925 and $ 32- 1455. " ( ~ r n ~ h a saidsd ed. )
Of the chiropractors responding to our survey, 98 percent reported
performing one or more of these examinations. We were unable t o determine
to wha': n- c- kk(> ni; r- i;- ax:--, ric:~ d mag go 1; eyond "' unc~ vering tke came o r
existence of a misalignment of the spine."
We also found t h a t it is unclear whether chiropractors v i o l a t e s t a t u t o r y
l i m i t a t i o n s when they request and use laboratory analysis of urine samples
and h a i r samples. Legislative Council noted that the Arizona Attorney
General has issued an opinion s t a t i n g that chiropractors are permitted to
request and use laboratory examinations because the Legislature amended
A. R. S. $ 32- 922, subsection B, to require study and training i n diagnosis
including physical, c l i n i c a l , x- ray and laboratory subjects. However,
Legislative Council's research showed that:
" In recent cases from other s t a t e s , however,
chiropractors have unsuccessfully attempted t o argue
t h a t , notwithstanding the s t a t u t o r y l i m i t a t i o n on the
practice of chiropractic, s t a t u t e s which require
applicants f o r a c h i r o p r a c t i c l i c e n s e t o pass
examinations on the subjects of laboratory procedures,
diagnostic proceciures, pathology, etc. evidence
l e g i s l a t i v e i n t e n t t o authorize chiropractors to make
diagnostic t e s t s t o determine i f a p a t i e n t ' s disease is
one which can be treated by chiropractic methods. This
argument has been rejected by the courts. We have
located no cases where the court agreed with t h i s
argument. "
Of the chiropractors responding t o our survey, 69 percent reported t h a t
they use laboratory analysis of h a i r or urine samples i n t h e i r practices.
Table 2 summarizes, for each of the preceding p r a c t i c e s , the number and
percentage of chiropractors responding to our survey which use these
practices.
E- l ffi
z 0
H 3
S H
E- r FI
4 D
c\] W 4
ffi
W EiO
4 H m FI
4 ZC. 3 a 4 X
a , a , ? G U , + ' k b
, G G + ~ G m a ,
+ ' r ~ u k a , S X
. d g h m - P a , :.$ a o k. rc
a a zi m r o
o r ( 0 a, 0.4
a, a,. d cd k r i r
*" + d a o o o 5 aj O. d. dd. r4 0,
3 $ m o G F 4 $ @
y o i d C Q r d o L d i 6
? 4 - r k k 3 * + k L - r
0 0 - P d r l d " P a,
~ . d A . . - LJd o d d
c J 2 ~ = 3 m ~ h = 3 r E +
a.- ima,
d t 3 X X m
. clcca, rl @ a, a x a ~ d
cz j a , cdd . vd *' 2 9 0 0 4 0 hid
. r4 ad 0 k m
a 4 0
i d ( 2 0 0 +" u
0 a d . d id0
. r( o o m s, k o
New Law May Not Materially Expand
Legal S c o ~ eo f Practice
Most violations of the s t a t u t o r y p r a c t i c e l i m i t a t i o n s can be a t t r i b u t e d t o
misinterpretation of A. R. S. $ 32- 925. According to the Board President,
various practices l i k e those cited e a r l i e r have been widely used i n
Arizona s i n c e c h i r o p r a c t o r s were f i r s t licensed i n 1921, and many among
the profession believed such practices were permitted by the law. P r i o r
t o July 1, 1981, A. R. S. $ 32- 925 read as follows:
" A person licensed under t h i s chapter t o practice
chiropractic may adjust by hand any a r t i c u l a t i o n s of
the spinal column. He s h a l l not prescribe f o r o r
administer medicine or drugs, practice major or minor
surgery, o b s t e t r i c s or any other branch of medicine or
practice osteopathy or naturopathy unless he is
otherwise licensed therefor a s provided by law."
This s t a t u t o r y provision remained unchanged between 1921 and 1981, except
for a 1959 amendment which added naturopathy as a prohibited practice.
Despite the f a c t that many d i f f e r e n t treatment metnods were used by
chiropractors during t h i s period, Legislative Council s t a t e s :
" A. R. S. $ 32- 925 [ prior to July 1, 19811 c l e a r l y and
unambiguously l i m i t t e d ] chiropractic practice to
adjustment by hand of the a r t i c u l a t i o n s of the s i n a l
column, and no other method of treatment fwas]
authorized. This d e f i n i t i o n of chiropractic practice
was the prevalent view of chiropractic practice a t the
time the s t a t u t e was enacted."
In the 1980 l e g i s l a t i v e session A. R. S. $ 32- 925 was repealed and replaced
with the wording below, e f f e c t i v e July 1, 1981:
" A. The practice of chiropractic includes:
" 1. That practice of h e a l t h c a r e which deals with
t h e d e t e c t i o n of subluxations, functional vertebral
dysarthrosis or any a l t e r a t i o n of contiguous spinal
s t r u c t u r e s .
" 2. The chiropractic adjustment and those
procedures preparatory and complementary to the
adjustment of the spine and its a r t i c u l a t i o n s f o r the
restoration acd maintenance of health.
" 3. The use of x- ray and other analytical
instruments generally used in the practice of
chiropractic.
" B. A person licensed under t h i s chapter s h a l l
not prescribe or administer medicine or drugs, use
x- rays for therapeutic purposes or practice any branch,
including obstetrics, of medicine and surgery or of
osteopathic medicine and surgery or naturopathy unless
such person is otherwise licensed therefore as provided
by law."
Some chiropractors believe t h i s new law substantially expands upon the
previous scope of practice and authorizes many of the practices widely
used throughout the prafess5on. Such nay n o t be the case, however,
according to Legislative Council. The arguments and conclusions cited
e a r l i e r from a Legislative Council opinion - regarding various diagnostic
and treatment methods - apply to A. R. S. $ 32- 925 both before - and - a f t e r
July 1, 1981. The new version expressly authorizes the use of x- rays, but
authority to take x- rays may have already been granted to chiropractors in
1977 ( A. R. s. $ 32- 2811 and $ 32- 2801). The new version also authorizes the
use of " other analytical instruments generally used i n the practice of
chiropractic," but Legislative Council concludes t h a t the Legislature's
intent is not clear regarding t h i s language.
Rule Regarding Scope Of Practice May Be An
Invalid Exercise Oi The Board's Fowers
According to the Board President, prior to the 1970' s the statutory
definition of the legal scope of practice ( A. R. s. $ 32- 925) seemed adequate
because there were few challenges of its definition. However, i n the
1970' s insurance companies began pressing the Board f o r a clearer
definition of what f e l l within the authorized scope of practice so t h a t
the insurers could administer policies covering chiropractic care. In
addition, the Attorney General advised the Board t o promulgate
administrative rules which would more clearly define various provisions of
the chiropractic s t a t u t e s . A s a r e s u l t , i n 1975, the Board adopted
R4- 7- 01, which s t a t e s i n part:
" 7. ' Practice of Chiropractic' means the
diagnosis, prognosis and treatment by chiropractic
methods which includes those procedures preparatory to
and complementary t o an adjustment by hand of the
a r t i c u l a t i o n s of t h e s p i n a l column and the normal
chiropractic regimen and r e h a b i l i t a t i o n of the patient
as taught i n accredited chiropractic schools and
colleges.
" 8. ' Diagnosis' means the physical, c l i n i c a l and
laboratory examination of the p a t i e n t , and the use of
x- ray for diagnostic purposes, as taught i n accredited
chiropractic schools and colleaes." ( Emhasis added.)
Legislative Council concludes tk~ t t55s 2 ecTargeC the s t a t u t o ~ j
d e f i n i t i o n of chiropractic practice and thus may c o n s t i t u t e an i n v a l i d
exercise of the Board's s t a t u t o r y powers:
" A s t a t u t e cannot be changed by administrative
regulations .... A regulation which operates to create
a r u l e out of harmony with the s t a t u t e is a mere
n u l l i t y .
" Since A. C . R. H. R4- 7- 01 enlarges the statutory
d e f i n i t i o n of the practice of chiropractic t o include
diagnosis, prognosis and treatment as taught i n
accredited chiropractic schools and colleges, a court
might hold t h i s rule t o be void as an invalid exercise
of the board's statutory powers."
To i l l u s t r a t e how R4- 7- 01 appears to enlarge the s t a t u t o r y d e f i n i t i o n of
chiroprac ti:, consider the subject of o b s t e t r i : s. Obstetrics is now
taught i n most of tl- e accredited chiropractic schools, 2nd thus it might
be argued t h a t Fit-- 7- 01 allows chiropractors to p r a c t i c ~ o b s t e t r i c s i n
Arizona. Houever, t h i s would be i n d i r e c t conflict riith A. R. S. $ 32- 325,
subsection B, which P ; cressly forbids t h e p r a c t i c e of o b s t e t r i c s by
chiropractors.
The Board President claims that R4- 7- 01 was intended to c l a r i f y , not widen
the legal scope of practice. Furthermore, he points out that the Attorney
General reviewed the rule prior to its adoption and did not indicate that
it exceeded statutory authority.
In August 1981 the Board attempted to further define the acceptable scope
of practice for chiropractors by adopting a " Position Paper" which
i d e n t i f i e s several p r a c t i c e s and indicates whether or not the Board
believes these f a l l within the legal scope of practice. In its Position
Paper the Board identified several practices that it interpreted to be
outside statutory l i m i t s . These practices are colonic i r r i g a t i o n ,
prostrate treatment, accupuncture not preparatory or complementary to
chiropractic adjustments, and f a c e l i f t s .
However, i n its Position Paper the Board interpreted A. R. S. $ 32- 925 as
authorizing many of the ~;=. act!. ces which Legislzi-: ive Council concludes may
be outside the statutory l i m i t s .
The Position Paper stated, i n part:
-" After reviewing A . R. S. $ 32- 925 effective 7/ 1/ 81, the JoarS has ; Iz; ez*- zi:; ed " is% the fsLL; i-. jf: lg p_- acsdzlrea hen
used as preparatory to or complementary to an
adjustment are considered within the scope of
practice. These procedures include, but are not
limited to:
" 1. Ultrasonic sonation
" 2. Diathermy ( short wave and microthemy)
" 3. Transcutaneous nerve stimulation
" 4. Galvanism
" 5. Sine wave ( e l e c t r i c a l muscle stimulation)
" 6. Traction
a. S t a t i c
b. Intersegmental, motorized and ambulatory
" 7. Ice packs
" 8. Heat packs or hydroculator
" 9. Infra- red - u l t r a - v i o l e t
" 10. Routine orthopedic appliances
a. Cervical c o l l a r s
b. Rib b e l t
c. Lumbo s a c r a l supports
d. Extremity supports ( s p l i n t , etc. )
e. Heel l i f t s
" Any other adjunctive modality w i l l be considered on an
individual basis by the Board."
The Board Chairman acknowledges t h a t the Position Paper does not have the
e f f e c t of e i t h e r law or administrative rules, but was written t o provide a
foundation for the Board's attempt to regulate the profession and to
c l a r i f y fssues raised by ozher s t d t e agencies regarding scope of
practice. I n addition, the Position Paper was reviewed by the Board's
Attorney General r e p r e s e n ~ a t i v e for compliance with existing s t a t u t e s .
A. R. S. $ 32- 925 Should Be Amended
To Clarify Definition of P r a c t i c e
The foregoing sections i l l u s t r a t e the need f o r action by t h e Legislature
t o c l a r i f y the legal scope of practice for chiropractors. A t a minimum,
specific provisions of A. R. S. $ 72- 925 should be reworded t o eliminate
language that is unclear, l e g a l l y circuitous and possibly misleading.
For example, A. R. S. $ 32- 925 s t a t e s , i n part:
" A. The practice of chiropractic includes:
" 3. The use of x- ray and other a n a l y t i c a l
instruments generally used i n the practice of
chiropractic."
According t o Legislative Council, the above provision "... cannot be
understood to authorize the use of any instruments generally used by
chiropractic p r a c t i t i o n e r s , as t h i s would allow chiropractors t o define
t h e p r a c t i c e of chiropractic, an unconstitutional delegation of
l e g i s l a t i v e power." Legislative Council f u r t h e r eiaborates i n its opinLon:
" The term ' a n a l y t i c a l instrument' should be defined by
s t a t u t e . It is not c l e a r whether the l e g i - s l a t u r e by
t h i s term meant t o include a l l diagnostic instruments,
or di- agnostic instruments l i m i t e d t o the d e t e c t i o n of
a b n o m a l i t i - e s of the spine, and instruments used
preparatory and compleme~ tary t o s p i n a l ad justment .
he phrase ' g e n e r a l l y used i n the p r a c t i c e of
c h i r o p r a c t i c ' is l e g a l l y circui. tous and misleading, a s
it appears on its face t o authorize a n u n c o n s t i t u t i o n a l
dzlegation i; f power. It is noted t h a t the provision
a u t h o r i z i n g ' u s e of x- ray and other a n a l y t i c a l
instruments g e n e r a l l y used i n t h e p r a c t i c e of
c h i r o p r a c t i c ' is adopted from a Washington s t a t e
s t a t u t e . 1Je have located no cases i n t e r p r e t i n g t h a t
provision." ( ~ m p h a s i sa dded.)
A s s t a t e d e a r l i e r , it is a l s o unclear whether c h i r o p r a c t o r s v i o l a t e
s t a t u t o r y l i m i t s when t h e y r e q u e s t and use laboratory a n a l y s i s of urine or
h a i r samples.
Furthermore, A. R. S. $ 32- 925, subsection A, paragraph 2 needs c l a r i f i c a t i o n
a s it authorizes procedures " preparatory and complementary t o " a s p i n a l
adjustment. Without c l e a r s t a t u t o r y language a s a guide, the Board has
proceeded t o adopt its own i c t e r p r e t a t i o n of " preparatory and
complementary t o , " as evidenced by its P o s i t i o n Paper.
COTiCLUSI ON
The majority of Arizona c h i r o p r a c t o r s may be exceeding s t a t u t o r y l i m i t s on
the p r a c t i c e of c h i r o p r a c t i c . A. R. S. $ 32- 925 - e i t h e r before or a f t e r
July 1, 1981 - may not authorize many of the treatment methods widely used
by c h i r o p r a c t o r s . Furti. iermore, a Board r u l e defining the scope of
p r a c t i c e appears t o enlarge t h e s t a t u t o r y d e f i n i t i o n and t h e r e f o r e may
c o n s t i t u t e an i n v a l i d exercise of the Board's powers. The current
s t a t u t o r y d e f i n i t i o n could be improved by eliminating language t h a t is
l e g a l l y c i r c u i t o u s and misleading and by more c l e a r l y defining acceptable
p r a c t i c e s .
RECO? Q1ENDATI OfJS
Cdnsideration should be given t o the following recommendati. ons:
1. The Board amend Rule R4- 7- 01, paragraphs 7 and 8, t o forbid
chiropracti- c p r a c t i c e s t h a t a r e s t a t u t o r i l y prohibited.
2. The Board n o t i f y a l l l i c e n s e e s of p r a c t i c e s which may be i n v i o l a t i o n
of t h e s t a t u t o r y l i m i t s on c h i r o p r a c t i c p r a c t i c e , a s explained i n the
finding.
3. The Board p e t i t i o n t h e L e g i s l a t u r e f o r s t a t u t o r y changes regarding
scope of p r a c t i c e which it believes a r e needed t o keep the laws
current with the s t a t e of the c h i r o p r a c t i c profession.
4. The L e g i s l a t u r e review the l i m i t a t i o n s it intended i n t h e current
s t a t u t o r y d e f i n i t i o n of t h e c h i r o p r a c t i c scope of p r a c t i c e . I f it
intended t h a t c h i r o p r a c t o r s use procedures such as physiotherapy
modalities o r laboratory a n a l y s i s , then the s t a t u t e s should be amended
t o s p e c i f i c a l l y provide f o r such p r a c t i c e s . S t a t u t e s r e l a t i n g to
medicine, physical therapy and pharmacy may a l s o need amending t o
allow such p r a c t i c e s .
5. A t a minimum, t h e L e g i s l a t u r e should amend A. R. S. $ 32- 925, subsection
A, paragraph 3, by:
a ) eliminating the phrase " generally used i n t h e p r a c t i c e of
chi r o p r a c t i c , " and
b) defining the term " a n a l y t i c a l instrument."
FINDING I1
I n comparison t o s t a t u t e s governing o t h e r h e a l t h care p r o f e s s i o n s , the
Chiropractic Board s t a t u t e s a r e i n s u f f i c i e n t i n t h a t : 1) grounds f o r
d i s c i p l i n a r y a c t i o n a r e not adequately defined, 2) the Board's power t o
subpoena or exanine documents, records or other evidence f o r i n v e s t i g a t i v e
purposes ( p r i o r t o a h e a r i n g ) is not c l e a r l y defined and 3) the s t a t u t e s
do not r e q u i r e t h a t i n s u r e r s r e p o r t c h i r o p r a c t i c malpractice information
t o the Board. These d e f i c i e n c i e s impair the S o s r d ' s a b i l i t y t o
e f f e c t i v e l y r e g u l a t e c h i r o p r a c t i c p r a c t i t i o n e r s .
Grounds For D i s c i p l i n a r y
Action Are Inadequate
A. R. S. $ 32- 924 s e t s f o r t h the grounds by which the Board can take
d i s c i p l i n a r y a c t i o n a g a i n s t licensed chiropractors:
" A . The board may i s s u e a n order of censure, and f i n e
a l i c e n s e e a sum of money not t o exceed f i v e
hundred d o l l a r s , o r may refuse t o i s s u e , o r may
revoke o r suspend a l i c e n s e , a f t e r a h e a r i n g , upon
any of the following grounds:
1. Employment of fraud o r deception i n
s e c u r i n g a l i c e n s e .
2. P r a c t i c i n g c h i r o p r a c t i c under a f a l s e or
assumed name.
3. Impersonating another p r a c t i t i o n e r .
4. F a i l i n g , a f t e r n o t i c e by the board, t o
record a l i c e n s e .
5. Habitual intemperance i n the use of
n a r c o t i c s o r stimulants t o the extent of
i n c a p a c i t a t i n g him f o r the performance
of h i s p r o f e s s i o n a l d u t i e s .
6. Unprofessional o r dishonorable cocduct
of a character l i k e l y t o deceive o r
defraud the public.
7. For t h e v i o l a t i o n of any of he
provisions of t h i s chapter."
The Board has expressed d i s s a t i s f a c t i o n with these provisions, claiming
t h a t the grounds f o r d i s c i p l i n a r y a c t i o n a r e inadequate f o r the type of
complaints it handles. For example, the Board r e c e n t l y d i s c i p l i n e d a
c h i r o p r a c t o r accused of c h i l d molesting. Because of the lack of more
s p e c i f i c s t a t u t o r y grounds, the Board had t o r e l y on A. R. S.
$ 72- 9244. A. 6-" unprofessional or dishonorable conduct of a c h a r a c t e r l i k e l y
t o deceive or defraud the publicw- as the h a s i s f o r a c t i o n . The d e f i n i t i o n
of " unprofessional or dishonorable conduct of a character l i k e l y t o
deceive o r defraud the public" was debated and challsnged 5y l e g a l counsel
of the accused. The Board maintained hat it was a c t i n g on s u f f i c i e n t
grounds and proceeded t o ~ a k e d i s c i p l i n a r y aczion. However, t h i s case
demonstrates the need f o r more s p e c i f i c provisions f o r d i s c i p l i n a r y a c t i o n .
This need is a l s o evidenced when t h e s t a t u t o r y provisions f o r d i s c i p l i n a r y
a c t i o n f o r the 3oard of Chiropractic Examiners a r e campared t o provisions
governing other Arizona h e a l t h regulatory boards. Table 3 summarizes t h i s
comparison.
0
. r. 0:
h + :.
0 O 0;
Q G
a i. .-
k i; rf
w o a
O k r :
04 .- id
s:
0
CI h a
O t i
a - 2 21
$ 4 .+ . i X x
r: c E 22; l
aFmi s- CI m rl
a cd
d 0 m &
m o o
+= . d
e - 4
a, i, i>
N a z i
. r- M a
C G
ha m k
o a o
C)
m 93 P
k h* Qa,
0 += . A + 9 4J
r rl
PZ
m m k
k d 0
r o " " 3
v r m r l
* 03 ' 3a +' 0=
01; m 0
3 C h
n o k
a v o
' 3
0
A s demonstrated i n Table 3, other Arizona h e a l t h c a r e boards have more
s p e c i f i c grounds f o r d i s c i p l i n a r y a c t i o n .
F u r t h e r , u n l i k e other Arizona boards, the Board of Chiropractic Examiners
has not used its rule- making a u t h o r i t y t o c l a r i f y the d e f i n i t i o n of
unprofessional conduct. A r t i c l e 9 of the Board's r u l e s is e n t i t l e d
" Unprofessional Conduct," but contains only the following d e f i n i t i o n :
R4- 7- 70. Advertising of a deceptive and fraudulent
nature.
The Board s h a l l cause a l i c e n s e t o be
i n v e s t i g a t e d , suspended, o r revoked f o r
a d v e r t i s i n g t h a t is l i k e l y t o deceive o r defraud
the p u b l i c , i n c l u d i n g b u t nct limited t o the
following examples:
1. Advertising p a i n l e s s procedures.
2. Advertising comp1er; e h e a l t h s e r v i c e s . "
During the 1981 l e g i s l a t i v e s e s s i o n the Board supported House B i l l 2450,
which proposed the following a s grounds f o r d i s c i p l i n a r y a c t i o n :
A. R. S 32- 924, Subsection A.
5. HABITUAL INTETPERABCE I N THE USE OF ALCOHOL.
7. Vnprofessional o r dishonorable conducr; of a
character l i k e l y t o deceive or defraud the public OR
TENDING TO DISCREDIT THE PROFESSION.
3. COTrlMISSIOM OF A FELONY.
9. GROSS EALPRACTICE, REPEATED IflALPSACTICZ OR
r l T J
f i , v , ;.; AL? RkCTICI;: RESULTIBG I N THE DEJITII OF A PATIENT.
10. REPRESENTING THAT A MANIFESTLY INCURABLE
Pu bn , xt- D ITION CAN BE PERFVi: iESTSY CUf?,%& 92 :":- iO! i' A CURA5LZ
COSDITION CAN BE CURED WITHIN A STATED TIME, IF SUCH IS
SOY THE FACT.
11. OFFERING, UNDZRTAKIWG OR AGREEING TO CUiiE OR
mA-< y.:, A-, n A CONDITION SY A SECRET ? EANS, i4ETiiGD, DEVICE OR
INSTRUMENTALITY.
12. REFUSING TO DIVULGE TO THE BOARD WON DENAND
THE MEANS, RETHOD, DEVICE OR INSTRUMENTALITY USED I N
THE TREATXENT OF A CONDITION.
13. G I V I N G OR RECEIVING, OR AIDING OR ABETTING
THE G I V I N G OR RECEIVING OF REBATES, EITHER DIRECTLY OR
IBDIBEC": .
14. ACTING OR ASSUMING TO ACT AS A MEMBER OF THE
BOARD \ HEN SUCH IS NOT THE FACT.
15. ADVERTISING I N A FALSE, DECEPTIVE OR
> TI SLEADI NG MANNER
16. REFUSAL, REVOCATION OR SZSPENSION OF LICENSE
EY AIIY OTHER STATE, TERRITORY, DISTRICT OR COUNTRY,
UKLESS I T CAN BE SHOWN THAT SUCK WAS NOT OCCASIOXED BY
REASONS WHICH RELATE TO THE ABILITY SAFELY AND
SKILLPULLY TO PRACTICE CHIROPRACTIC OR TO AlX ACT OF
UNPROFESSI92IAL CCN2LTCT .
17. ANY CONDUCT OR PRACTICE COBTRARY TO
RECOGNIZED STANDARDS OF ETHICS I N CHIROPRACTIC OR ANY
CONDUCT OR PRACTICE WHICH DOES OR T4iGHT CONSTITUTE A
DANGER TO THE HEALTH, WELFARE OR SAFETY OF THE PATIENT
OR THE PUELIC OR ANY CONDUCT, PRACTICE OR CONDITION
WHICH DOES OR MIGHT INFAIR THE ABILITY OF THE LICENSEE
TO SAFELY AND SKILLFULLY PRACTICE CHIROPRACTIC.
18. VIOLATIlJG GR ATTZpPTING TO VIOLATE, DIRECTLY
OR I? TCIRECTLY, OR ASSISTING I N OR ABETTING THE
VIOLATION OF OR CO6SPiRiXG TO VICLATE AXT OF THE
PROVISIONS OF THIS CHAPTER."
House B i l l 2450 passed the House but did not pass the Senate. The Board
is prepared t o support s i m i l a r l e g i s l a t i o n i n 1982.
The Board Is Uncertain O f Its
Power t o Obtain Records For
I n v e s t i g a t i v e Purposes.
The Board is uncertain of i z s power t o subpoena o r examine and copy
records f o r i n v e s t i g a t i v e purposes p r i o r t o a hearing.
Although the Board is enpowered i n A. R. S. $ 32- 924.~ t o i n v e s t i g a t e and
hold hearings on alleged v i o l a t i o n s of the c h i r o p r a c t i c law, the s t a t u t e s
do not mention s p e c i f i c a l l y t h e a u t h o r i t y t o subpoena and examine records
i n connection with an i n v e s t i g a t i o n or hearing.
The a b i l i t y of the Board t o s e c u r e r e c o r d s , undamaged and u n a l t e r e d , could
have a s i g n i f i c a n t impact on the Eoard's a b i l i t y t o resolve complaints.
For example, i n a r e c e n t c a s e a c h i r o p r a c t i c physician was suspected of
f r a u d u l e n t l y b i l l i n g an insurance company f o r s e r v i c e s which were not
performed. The Chiropractic Board attempted t o subpoena t h e p a t i e n t ' s
treatmenz records, and t o use t h o s e r e c o r d s i n conjunction with p a t i e n t
testimony t o prove unprofessional conduct l i k e l y t o deceive o r defraud the
public. The c h i r o p r a c t o r refused t o r e l e a s e t h e records, on the advice of
h i s a t t o r n e y . Although l a t e r d e v e l 2 . - e n t s i n t h i s case made it
unnecessary f o r the Board t o obtain the requested records, it is not
c e r t a i n t h a t the Board could have obtained the records.
The Board's a b i l i t y t o obtain records is not a s d e f i n i t e as other Arizona
boards. For example, the Arizona S t a t e Board of Medical Examiners ( E O ~ X )
is em~ owered i n A. R. S. 532- 1451.01, subsection A , t o examine and cooy
p a t i e n t records or other documents o r evidence i n connection with an
i n v e s t i g a t i o n :
". .. the board or its duly authorized agents o r
em~ layees s h a l l a t a l l reasonable times have access to.
f o r the DurDose of examination. and the r i g h t t o c o ~ v
any aocuments, r e p o r t s , records o r any o t h e r physical
evidence of any person being i n v e s t i g a t e d , o r the
r e p o r t s , records and any other docunients maintained by
and i n possession of any h o s p i t a l , c l i n i c , p h y s i c i a n ' s
o f f i c e , l a b o r a t o r y , pharmacy or any other public or
p r i v a t e agency, and any h e a l t h c a r e i n s t i t u t i o n a s
def i. ned i n $ 36- 401, i f such documents, r e p o r t s , records
or evidence r e l a t e - t o medical competence,
unprof e s s i o r ~ a l conduct, or the mental o r physical
abiI. it. 7 of a doctor of medi. ci. ne s a f e l y t o p r a c t i c e
meuicine. ( Emphasis added. )
0 . r o u s i ~ e l : f ~ t i i l i z e s t;. Ls pager .~ huii invesTigating cornpiaints.
Further, ROT.: F. LY, through its rulenaklng a u t h o r i t y , has included the
f a l l o u i n g d e f i n i t i o n o f u n p r o f e s s i o n a l conduct:
Refiising to div~ zJ. ge t o the board upon demand the means, method, device
or i n s t r u m e n t a l i t y used i n the treatment ~ f a d i s e a s e , i n j u r y , ailment
Jr i n f i r m i t y .
A s a r e s u l t , BOMEX has an e f f e c t i v e sanction t o compel medical doctors t o
cooperate during an h v e s t i g a t i o n .
The Eoard Does Not Receive
Chirooractic M a l ~ r a c t i c e Information
Chiropractic s t a t u t e s f u r t h e r d i f f e r from t h o s e o f o t h e r h e a l t h
pror'essions i n t h a t they do not r e q u i r e insurance com>; lni ~ 5 + 3 reoork
c h i r o p r a c t i c malpractice claims o r s e t t l e m e n t s t o the Board. For example,
t h e P o d i a t r y and Osteopathic boards eech have provisions s i m i l a r to a
EOYYEX s t a t u t e ( A. 8. S. $ 32- 1451.02) which s t a t e s :
A* " "..-- ' -.
T . - 2.- ;; d, _ b: ~ y ~ ~ l i a~ b i l~ i t y ~ i o ~ ~ l P. L, - -. -
insurance t o a doctor of medicine licensed by the board
of ~ e d i c a l examiners ~ u r s u a n t t o t h i s c h a ~ t e r s h a l l * A
r e ~ o r tt o the board. within t h i r t v davs of its r e c e i ~ t .
any w r i t t e n o r o r a l claim o r a c t i o n f o r dama. ges f o r
personal i n j u r i e s claimed to have been caused by an
e r r o r , omission o r negligence i n the performance of
such i n s u r e d ' s p r o f e s s i o n a l s e r v i c e s , o r based on a
claimed performance of p r o f e s s i o n a l s e r v i c e s without
consent or based upon breach of contract f o r
p r o f e s s i o n a l s e r v i c e s by a doctor of medicine. . . . . . . .
C. Every i n s u r e r required t o report t o the board
pursuant t o t h i s s e c t i o n s h a l l a l s o be required t o
advise the baard of any seStlements o r " l u d ~ m e n t s -
a g a i n s t a doctor of medicine within t h i r t y days a f t e r
such settlement o r judgment of any t r i a l court.
* s , * + * *
E. The board s h a l l i n s t i t u t e procedures f o r an
annual review of a l l records kept i n accordance with
t h i s chapter i n order t o determine whether it s h a l l be
n e c e s s a r j f o r the board t o take r e h a b i l i t a t i v e o r
d i s c i p l i n a r y measures p r i o r t o the renewal of a medical
d o c t o r ' s l i c e n s e t o p r a c t i c e . . . . . . . .
G. There s h a l l be no l i a b i l i t y on the p a r t of
and no cause of a c t i o n of any nature s h a l l a r i s e
a g a i n s t any i n s u r e r reporting hereunder o r its agents
ar employees, o r the board o r its r e p r e s e n t a t i v e s , f o r
any a c t i o n taken by them i n good f a i t h pursuant t o t h i s
s e c t i o n . ( ~ m p h a s i sa dded.)
The Board has artempted t o obtain malpractice information by requiring i n
its r u l e s t h a t l i c e n s e e s ~ o t i f j - the b a r d oi' any malpractice a c t i o n s
i n i t i a t e d a g a i n s t them. However, t h i s r u l e is v i r t u a l l y unenforceable.
Recently the Board chaiman contacted s e v e r a l insurance companies and
requested information on malpractice claims o r s e t t l e m e n t s a g a i n s t
c h i r o p r a c t o r s . I n response the i n s u r e r s s e n t general information on the
nmber, type and d o l l a r s e t t l e n e n t of claims; however, they refused t o
provide the names of c h i r o p r a c t o r s involved on the b a s i s they would be
v i o l a t i n g privacy and p r i v i l e g e d information agreemenTs.
A s a r e s u l t , the Board is not receiving information which could be
valuable i n its e f f o r t t o regulate the p r o f e s s i o a . To determine what kind
of claims a r e going unnoticed, we c o n t a c ~ e d a major c a r r i e r of
c h i r o p r a c t i c malpractice insurance. We were provided general information
about 27 malpractice a c t i o n s a g a i n s t chiropr- ctors occurring since 1977,
including claims f o r the following complaints: f a i l u r e t o diagnose
cancer; unauthorized use of chemicals; f a i l u r e t o diagnose f r a c t u r e d
shoulder; f a i l u r e t o diagnose gonorrhea; i n j u r y t o coccyx; f r a c t u r e d l e g ;
f r a c t u r e d r i b ; i n j u r y requiring g a l l bladder sur, yery; f r e e z e burn; and
f a t a l coronary due t o d i e t a r y change.
CONCLUSION
The Eoard's s t a t u t o r y a u t h o r i t y t o i n v e s t i g a t e and resolve complaints is
substandard when compared t o other Arizona h e a l t h regulatory boards.
S p e c i f i c a l l y , grounds f o r d i s c i p l i n a r y a c t i o n s a r e not adequately defined
and the Board's a u t h o r i t y t o examine and copy p a t i e n t records p r i o r t o a
hearing is unclear. I n a d d i t i o n , the Board does not have s u f f i c i e n t
a u t h o r i t y to obtain i n f o r n a t i o n about malpractice a c t i o n s a g a i n s t
c h i r o p r a c t d r s . A s a r e s u l t , the Board's a b i l i t y t o regulate c h i r o p r a c t i c
p r a c z i t i o n e r s is impaired.
Consideration should be given t o the following recommendations:
1. The L e g i s l a t u r e amend A . 2 . 3 . 532- 924, subsection A , t o provide
more comprehensive grounds f o r d i s c i p l i n a r y a c t i o n .
2. The L e g i s l a t u r e amend A. R. S. $ 32- 924 t o allow the examination and
copying of p a t i e n t records and o t h e r documents i n connection with
an i n v e s t i g a t i o n , and t o include r e f u s a l t o cooperate as grounds
f o r d i s c i p l i n a r y a c t i o n .
3. The L e g i s l a t u r e add provisions t o the insurance s t a t u t e s
requiring i n s u r e r s t o r e p o r t malpractice a c t i o n s against
c h i r o p r a c t o r s t o the Chiropractic Board. Provisions should a l s o
be added t o require the Department of Insurance t o monitor
compliance w i t h t h e s e requirements and t o impose p e n a l t i e s f o r
noncompliance.
FINDING I11
STATUTORY CHANGES ARE NEEDED TO HELP ENSURE THAT PERSONS LICENSED WITHOUT
EXAMINATION ARE QUALIFIED*
In 1980, t h e Legislature enacted l e g i s l a t i o n to r e q u i r e t h e Board t o issue
a license t o practice chiropractic, without examination, t o persons
licensed by other s t a t e s . This s t a t u t e needs to be amended because
- Other s t a t e s ' examination standards may not be equivalent t o
Arizona's.
- Other Arizona health regulatory boards t h a t i s s u e l i c e n s e s
without examination t o persons holding licenses from other s t a t e s
have more applicant q u a l i f i c a t i o n requirements.
- Examination and educational requirements are unclear.
I n addition, s t a t u t o r y changes are needed t o make it e a s i e r f o r the Board
to revoke or suspend the license of an Arizona licensee whose license has
been suspended or revoked by another s t a t e .
In 1980 the Legislat1: re enacted ARS 32- 922.01, which s t a t e s :
" The Board s h a l l issue a license t o practice
chiropractic without examination to an applicant who:
1. Possesses a current, unrevoked, unsuspended
license t o practice chiropractic issued a f t e r
examination by a licensing board i n another s t a t e ;
and
2. Has engaged i n the practice of chiropractic f o r
t h r e e y e a r s immediately preceding application f o r
license; and
3. Intends t o reside and p r a c t i c e c h i r o p r a c t i c i n
t h i s s t a t e . "
While this section of the chiropractic statutes is titled "~ eciprocity"
and is commonly referred to as the reciprocity licensing law, it is in
reality a licensure by comity law. According to Black's Law Dictionary, a
reciprocal licensing law refers to a statute by which one state extends
rights and privileges to the citizens of another state if that state
grants similar privileges to the citizens of the first state. Comity on
the other hand is the recognition that one entity allows within its
territory to certain legislative, executive or judicial acts of another
entity. The granting of licensure without examination to residents of
other states, as provided in A. R. S. $ 32- 922.01, therefore constitutes a
comity statute.
Applicants for licensure by examination must pass both a written and a
practical examination. A. R. S. $ 32- 922 establishes the examination
standards:
" B. The examination shall be in English,
practical in character and designed to include subjects
which are necessary to ascertain the applicant's
knowledge of and fitness to practice chiropractic
safelv and skillfullv as authorized in this state.
Examinations shall include subjects upon anatomy,
physiology, pathology, bacteriology, symptomatology,
diagnosis including physical, clinical, x- ray and
laboratory subjects, chiropractic orthopedics,
principles of chiropractic and adjusting , neurology,
chemistry including biochemistry and nutrition, public
health and hygiene, and chiropractic spinal analysis,
as taught by accredited chiropractic schools and
colleges.
" C. The board mav waive examination in those
subjects that the applicant passed previously in an
examination conducted by the national board of
chiropractic examiners.
" D. A license shall be granted to applicants who
correctly answer seventy- five per cent of all questions
asked, and sixty per cent of the questions on each
subject, and pay the original license fee of fifty
dollars." ( Emphasis added.)
In c o n t r a s t , the only examination requirement an applicant must meet i n
order t o qualify f o r licensure by comity is expressed i n A. R. S. $ 32- 922.01:
" 1. Possesses a current, unrevoked, unsuspended -
license to practice chiropractic issued a f t e r
examination by a licensing board i n another s t a t e : ...." ( Emphasis added.)
Other S t a t e ' s Examination Standards
May Not Be Equivalent To Arizona
Neither the s t a t u t e s nor Board rules provide any standards f o r the
examinations given i n other s t a t e s . According t o the Board, an applicant
need ocly prove t h a t he passed a board- prepared examination i n another
s t a t e , regardless of the examination type or length, subjects t e s t e d , or
required passing rate. A s a r e s u l t , the Board is issuing licenses t o
applicants who may not have adequately demonstfated t h e i r competence
through examination i n other s t a t e s .
According t o Board members, the q u a l i t y of c h i r o p r a c t i c l i c e n s i n g
examinations varies s u b s t a n t i a l l y from s t a t e to s t a t e . For example, some
s t a t e s do not require candidates t o pass a p r a c t l e a l examination.
Although 48 s t a t e s recognize t h e n a t i o n a l examination administered by the
National Board of Chiropractic Examiners ( NBCE) as a s u b s t i t u t e for p a r t
or a l l of t h e i r s t a t e board- prepared examinations, candidates i n many
s t a t e s have the option of taking a s t a t e examination instead of the NBCE.
The two s t a t e s t h a t do not recognize the NBCE examination - Connecticut
and South Carolina - r e l y e n t i r e l y on t h e i r own examinations.
Since the comity provisions went into effect on July 1, 1980, the Board
has licensed a t l e a s t 14 chiropractors through comity who could not pass
the Board's examination. Table 4 summarizes the Arizona t e s t r e s u l t s f o r
these 14 licensees.
TABLE 4
SUPIFARY OF ARIZONA TEST RESULTS FOR CHIROPRACTORS LICENSED THROUGH
COMITY WHO COULD NOT PASS THE ARIZOlJA BOARD EXAMINATION
Chiropractic Licenses Held In
Other States A t Time O f Application
Date The Licensee Failed
Arizona Examination
Overall
Examination Score
Years In
I, i censee Practice
A Missouri
Michigan
New Jersey
Minnesota
Iowa
Missouri, Texas
1? ew Mexico
Missouri, Iowa
New York, Florida
New Hampshire
Wisconsin
Nississippi, Kentucky
Michigan
Florida, Kentucky, Michigan, Missouri
Minnesota, Florida
Pennsylvania
Wisconsin, Minnesota
* Passing- score is 75.
** Scores not available.
W
CQ
A s shown i n Table 4, l i c e n s e e s A, F and J f a i l e d the Arizona examination
twice and l i c e n s e e H f a i l e d t h r e e times, including a f a i l u r e only four
months b e f o r e r e c e i v i n g a l i c e n s e through comity. I n a d d i t i o n , l i c e n s e e G
had a s c o r e o f only 45 on the ~ o a r d ' sO ctober 1979 examination.
Based on the above information it appears t h a t the Arizona comity l a w
should be r e s t r i c t e d t o those s t a t e s which Ba%- e t e s t i n g requirements
equivalent t o Arizona's.
IE the 1981 session the Board supported H. B. 2453 whl: l: ~ r c ; - ' ; s b : : . b r g e s
t o A. R. S. 32- 922.01 as well a s other provisions. The b i l l would have
given the Boarci % he right t o deny a r e c i p r o c a l l i c e n s e if it determined
t h a t l i c e n s i n g requirements i n t h e a p p l i c a n t ' s s t a t e o f r e s i d e n c e were not
equivalent t o Arizona's requirements. I n a d d i ~ i o n , the applicant would
have t o pass tile Board's o r a l and p r a c t i c a l examination. The b i l l passed
the House but n o t t h e Senate.
Other Arizona Health Regulatory Boards
Have More Applicant Q u a l i f i c a t i o n Ezr3. uirements
O f 11 Arizona h e a l t h regulatory boards, the Chiropractic Board appears t o
have the weakest s t a t u t o r y c r i t e r i a f o r assuring the minimum
q u a l i f i c a t i o n s of a p p l i c a n t s licensed without examination. Table 5
displays key f e a t u r e s of the reciprocity/ comity provisions o f t h e s e 11
boards.
TABLE 5
BOARD
Licensing Requirements
i n Other S t a t e Need Limit On Must Be Exemption P a r t O f
11:~ t s Be Equivalent Cannot Have National Time Since Graduate For Only Examinatio
To Arizona, A s Failed A r i zona Examination Other S t a t e Of Approved P a r t of - May Be
Determined By Board Exam C e r t i f i c a t e Issued License School Examination Required
Zhiropractic Examiners
Podiatry Examiners X
Dental Examiners X
Yedical Examiners
Naturopathi.~ E xaminers
Dispensing Opticians
3steopathic Examiners
Physical Therapy
Pharmacy
SUBDIARY OF KEY RECIPROCITY/ COMITY FEATURES
FOR ARIZONA HEALTH REGULATORY BOARDS
* According t o L e g i s l a t i v e Council opinion, the s t a t u t e s r e q u i r e
graduation from an approved school, but the Chiropractic Board i n
a c t u a l p r a c t i c e has not required t h i s - a s explained on page 43.
A s shown i n Table 5, eight cf the 11 boards have s t a t u t o r y provisions
requiring that the s t a t e i n which an a p p l i c a n t is currently licensed must
have licensing standards equivalent to those i n Arizona, as determined by
the respective Arizona board. The Board of Medical Examiners seeks a
minimum standard of competency by requiring an applicant to 1) pass a
national examination, 2) be a graduate from an approved school, and
3) pass an o r a l examination i f he took t h e n a t i o n a l examination more %!- SIT
15 years e a r l i e r . The Pharmacy Board requires graduation from an approved
school.
In c o n t r a s t , t h e Chiropractic Board reciprocity s t a t u t e s contain none of
these applicants' c r i t e r i a f o r licensure without examination.
Unclear Examination and
Educational Requirements
The Board has interpreted A. E. S. $ 32- 922.01 to mean t h a t 1) i n order to
qualify f o r licensure by comity an a p p l i c a n t must have passed an
examination administered by a chiropractic board i n another s t a t e , and
2) applicants for comity need not have graduated from an approved school
of chiropractic. These i n t e r p r e t a t i o n s may not be correct.
According to the Board's i n t e r p r e t a t i o n of A. R. S. $ 32- 922.01, an applicant
for licensure by comity must have passed an examination which was a c t u a l l y
administered by t h e c h i r o p r a c t i c board i n another s t a t e . The Board denies
licensure t o applicants who were licensed elsewhere solely on the basis of
the national examination given by NBCE." According to an opinion issued
by the Legislative Council on September 11, 1981,"" t h i s i n t e r p r e t a t i o n is
i n c o r r e c t . L e g i s l a t i v e Council explains:
* Chiropractic students may take the national examination d i r e c t l y from
NBCE before graduation. Passage of t h i s examination is recognized as
meeting the examination requirement by some s t a t e s . The Arizona
Board's current i n t e r p r e t a t i o n would not allow f o r licensure by comity
i n these cases because the other s t a t e boards did not a c t u a l l y
administer the examination. ** See Appendix I1 for f u l l t e x t of opinion.
" . . . A. R. S. section 32- 922.01 only requires, i n
pertinent p a r t , that an applicant f o r licensure by
comity hold a c u r r e n t , v a l i d license to practice
chiropractic issued " a f t e r examination by a licensing
board i n another state." The s t a t u t e does not specify
that any p a r t i c u l a r type of examination is required.
A s long as another s t a t e chiropractic board has
agproved the use of an examination prepared and graded
by a national board as s u f f i c i e n t proof of an
examination f o r s t a t e purposes, the requirement i n
A. R. S. section 32- 922.01 for " examination by a
licensing board i n another s t a t e " would be s a t i s f i e d .
" The c l e a r purpose of the examination requirement
i n A. R. S. section 32- 922.01 is t h a t a n applicant f o r
licensure by comity i n t h i s s t a t e has taken and passed
an examination f o r licensure i n another s t a t e . This
requirement is s a t i s f i e d when, i n the absence of c l e a r
s t a t u t o r y language to the contrary, an applicant f o r
licensure by comity i n Arizona has taken and passed a
national board examination f o r licensure ( approved by
the responsible s t a t e licensing board) i n any s t a t e ' X '
and subsequently secures a license t o practice
chiropractic i n s t a t e ' Y' on the basis of the national
board examination taken i n s t a t e X . The Arizona
license to practice chiropractic pursuant to the comity
provisions of A. R. S. section 32- 922.01 would, i n the
f a c t s i t u a t i o n given, be granted on the basis of the
examination taken and passed i n s t a t e ' X ' ." ( ~ m ~ h a s i s
added. )
In other words, an applicant who was licensed i n another s t a t e on the
basis of t h e n a t i o n a l examination without taking a s t a t e
board- administered examination has s a t i s f i e d the examination requirement
An applicant f o r licensure as a chiropractor who is not a licensee of
another s t a t e is required to be a graduate of a Board- approved school.
A. R. S. $ 32- 921 s t a t e s i n part:
" B. To be e l i g i b l e f o r an examination and licensure,
the applicant s h a l l be:
" 3. A graduate of a chiropractic school or college,
accredited by or having s t a t u s with the council on
chiropractic education or having the equivalent of such
standards as determined by the board...."
The Board's i n t e r p r e t a t i o n of the comity law ( A. R. s. $ 32- 922.01) is t h a t
the educational requirements shown above do not apply to applicants f o r
licensure via comity. However, accoraing to an opinion issued by
Legislative Council, t h i s i n t e r p r e t a t i o n is not correct; the requirenzer,~;
of A. R. S. $ 32- 921 must also be adhered t o when licensing without
examination. The opinion, dated September 11, 1981, s t a t ~ s : "
" While A. R. S. section 32- 922.01 does not
s p e c i f i c a l l y r e q u i r e an a p p l i c a t i o n and payment of a
fee i n order to receive a license without examination,
a reasonable construction of the s t a t u t e leads t o the
conclusion t h a t an application and fee would be
required. ConsequentLy, it can be j u s t i f i a b l y argued
that the provisions of A. R. S. section 32- 921, save f o r
the examination provisions, apply t o the licensure of
chiropractors pursuant to the comity provisions of
A. R. S. section 32- 922.01....
" An applicant f o r licensure without examination
pursuant t o the comity provisions of A. R. S. section
32- 922.01 must adhere t o the application requirements
of A. R. S. section 32- 921. The applicant could be
rejected by the board f o r f a i l u r e t o comply with any of
the requirements of A. R. S. section 32- 921.. .."
Thus, i n addition to the requirements outlined i n the comity s t a t u t e , the
Board should r e q u i r e a p p l i c a n t s for licensure by comity t o possess the
q u a l i f i c a t i o n s specified i n A. R. S. 32- 921, including graduation from an
approved chiropractic school. We found t h a t the Board has licensed a t
l e a s t one candidate by comity who did not graduate from a school meeting
the standards of A. R. S. $ 32- 921.~. 3.
* See Appendix I1 f o r f u l l t e x t of opinion.
Licensees Practicing In Other States
I n f i s c a l year 1980- 81 the Board received more than 350 applications f o r
licensure by comity. A s of November 23, 1981, there were more than 300
out- of- state chiropractors holding Arizona licenses.
Currently, these out- of- state chiropractors can renew t h e i r Arizona
licenses simply by paying the renewal fees. There is no s t a t u t o r y
requirement t h a t they remain i n practice i n other s t a t e s , or remain i n
good standing with t h e o t h e r s t a t e s ' l i c e r s i n g boards. The Board has no
procedures to determine i f an out- of- state licensee has been disciplined
i n another s t a t e since he f i r s t obtained an Arizona license.
Further, the Board is uncertain of its authority to take d i s c i p l i n a r y
action a g a i n s t an out- of- state licensee whose license has been suspended
or revoked by another s t a t e . According to Legislative Council, while the
Board may have such a u t h o r i t y , it may be severely r e s t r i c t e d by the
procedural requirements of A. R. S. $ 32- 924, which appear t o require a
hearing, a review of charges and evidence, and attendance of t h e l i c e n s e e
before d i s c i p l i n a r y a c t i o n can be taken.
By way of c o n t r a s t , the Arizona Board of Medical Examiners ( BOMEXh) as the
e x p l i c i t s t a t u t o r y authority to take action against out- of- state
licensees. BOMEX s t a t u t e s ( A. R. s. $ 32- 1401) define " unprofessional
conduct" i n part as follows:
" 10. " Unprofessional conduct" s h a l l include the
following a c t s , whether occurring i n t h i s s t a t e or
elsewhere:
( s ) Refusal, revocati- on or suspension of license
by any other s t a t e , t e r r i t o r y , d i s t r i c t or country,
u n l e s s it can be shown t h a t such was not occasioned by
reasons which r e l a t e t o the a b i l i t y safely and
s k i l l f u l l y t o practice medicine or t o any act of
unprofessional conduct herein."
Thus, revocation or suspension of license by any other state is considered
to be sufficient grounds for taking action against a doctor's Arizona
license. Statutes ( A. R. s. $ 32- 1451) further allow BOMEX to hold a hearing
and render a decision without attendance of witnesses or the licensee. A
copy of the order issued by the board in another state is considered
sufficient evidence for BOMEX to initiate disciplinary proceedings.
CONCLUSION
The current " reciprocity" licensing law in reality provides for licensure
by comity and impairs the Board's ability to protect the public. This
statute needs to be amended because 1) other states' examination
standards may not SF equivalent to Arizona's, 2) other Arizona health
regulatory boards that issue licenses without examination have more
stringent requirements, and 3) examination and educational requirements
are unclear. In addition, statutory changes are needed to enhance the
Board's ability to discipline a licensee whose license has been suspended
or revoked in another state.
RECOMMENDATIONS
Consideration should be given to the following recommendations:
1. The Legislature amend A. R. SI $ 32- 922, Ol to require that an
applicant have passed an examination equivalent to the Arizona
examication, including a practical exa: nination, in order to be
licensed without examination in Arizona.
2. While the current law is in force, the Board allow the national
examination to satisfy the written examination requirement for
licensure by comity.
3. The Board require graduation from an approved school in order to
qualify for licensure by comity.
4. The Board establish procedures to periodically discover what
disciplinary actions have been taken by licensing boards in other
states against Arizona licensees.
5. The Legislature amend chiropractic s t a t u t e s as needed to give the
Board authority similar to that given the Board of Medical
Examiners for taking disciplinary action against out- of- state
licensees.
FINDING IV
APPLICANTS FOR LICENSURE AS CHIROPRACTORS ARE NOT BEING EXAMINED IN
ACCORDANCE WITH STATUTORY REQUIREMENTS.
In order to be licensed by examination in Arizona an applicant for a
chiropractic license must pass either a state or national examination and
an ~ ral/~ racticaelx amination."
Our review revealed the following problems regarding the manner in which
licensing examinations are administered:
- Written examinations do not appear to be scored in accordance with
statutory requirements; and
- The Board appears to discriminate against applicants who take the
national examination instead of the state- administered examination.
Examinations Do Not Appear To Be Scored
in Accordance With Statutorj Require~ ents
An applicant for licensure by examination must pass a written examination
and an ~ ral/~ racticale xamination. The Board's written examination is
prepared and graded by the National Board of Chiropractic Exami- ners
( NBCE). The NBCE scores the written examination on a curve which does not
appear to conform with statutory requirements.
A. R. S. $ 32- 922.~ states:
" D. A license shall be granted to applicants who
correctly answer seventy- five per cent of all questions
asked, and sixty per cent of the questions on eacK
subject ...." (~ mphasis added.)
Requirements for licensure without examination are explained in
Finding 111. ( See page 35)
4 7
When the NBCE scores the written examination for the Board it converts an
applicant's raw score, or number of questions answered correctly, to a
standard score which equates the applicant's performance on the
examination to the other examinees. The NBCE's grading practice
constitutes curving. According to the Board chairman, the Board is aware
that the NBCE is curving the examination and that the practice is not in
conformance with A. R. S. $ 32- 922. D. However, the Board supports the
practice because it allows for examination comparability.
Because the NBCE reports standard scores to the Board it cannot be
determined if those candidates who have passed the examination did in fact
" correctly answer 75 percent of all questions asked, and 60 percent of the
questions on each subject" as required per A. R. S. $ 32- 922.~.
It should be noted that the NBCE applies the same grading procedures
described above to the other 36 states for which it prepares and scores
examinations. Thus it appears that A. R. S. $ 32- 922. D, which was enacted in
1921, should be amended to correspond with the grading practice that is
actually being used on a nationwide basis. In addition, the present
language in A. R. S. $ 32- 922.~ does not accomodate the scoring of the
Board's practical examination which includes physical demonstrations and
essay questions. These types of questions are not susceptable to being
scored as either right or wrong, thus precluding a practical application
of the grading requirements specified in A. R. S. $ 32- 922.~.
Board Appears To Discriminate Against
A~~ licantWsh o Take the National Examination
A. R. S. $ 32- 922. C states:
" C. The board may waive examination in those subjects
that the applicant passed previously in an examination
conducted by the national board of chiropractic
examiners."
In exercising its discretionary authority cited above, the Board has
adopted a policy that appears to discriminate against those persons who
take the national examination instead of the Board examination in that the
Board
- requires applicants who take the national examination to achieve
higher scores than those applicants who take the
state- administered examination, and
- prior to October 1, 1981, applied grading requirements to
applicants who took the nationa- examination that made it more
difficult for them to pass the Board's ~ ral/~ racticaelx amination.
This policy appears to be unwarranted because for all intents and purposes
the staxe examination and the national examination are the same, given that
- both are prepared and graded by the NBCE,
- the national examination includes all of the subjects tested in
the state examination, and
- the questions on both examinations are drawn from the same pool of
questions.
Twice a year the NBCE administers a national examination consisting of 13
subjects, including the same 10 subjects included in the written
examination administered by the Board. Each subject is scored separately
and consists of 100 questions drawn from the same pool of questions used
in the Board- administered examination.
In accordance with A. R. S. $ 32- 922.~, the Board will waive written
examination requirements provided the applicant has passed the national
examination with a score of - 75 percent or better in each of 12 subjects
tested ( exclusive of the subject " physiotherapy") and files a certified
list of those scores with the Board.
By way of contrast in order to pass a Board- administered written
examination an applicant need score only - 60 percent or better in each of
the 10 subjects tested with an overall score of 75 percent.
As a result, the Board is applying two pass/ fail criteria for obstensibly
the same examination.
In addition, prior to October 1981, applicants who passed the national
written examination were required to pas; the five parts of the Board's
oral/ practical examination with an average score of 75 percent. However,
applicants who took the Board- administered written examination were
allowed to average their written examination scores with their
~ ral/~ racticalex amination scores in determining if an average score of 75
percent had been achieved. This double- standard grading policy has
resulted in applicants being failed by the Board who had higher overall
scores than applicants who were passed by the Board.
During the course of the audit, we discussed with Board staff our concerns
regarding grading procedures. In a subsequent Board meeting the Board
agreed to change their grading procedures so that beginning with the
October 1981 examination all applicants will be required to pass both the
written and ~ ral/~ racticaelx aminations independently in order to qualify
for licensure. However, the Board will continue to require applicants who
take the national written examination to achieve higher scores than those
applicants who take the state- administered examination.
CONCLUSI ON
The manner in which the written licensing examination is graded does not
comply with A. R. S. $ 32- 922. D. In addition, the Board appears to
discriminate against candidates who take the national written examination
instead of the state- administered examination.
Consideration should be given to the following recommendations:
1. The Legislature amend A. R. S. $ 32- 922.~ to provide for the current
scoring procedures used by NBCE and the Board.
2. The Board grant waiver of the written examination to candidates who
scored at least 60 on each of the 10 comparable subjects of the
national examination with an overall average score of 75 for the 10
subjects.
FINDING V
THE BOARD'S 20- DAY PUBLIC MEETING NOTICE REQUIREMENT CAUSES DELAYS I N
COMPLAINT F% SOLUTION.
Unlike most other Arizona boards the Board of Chiropractic Examiners is
s t a t u t o r i l y required to post public notice of Board meetings a t l e a s t 20
days i n advance. This requirement causes delays i n the Board's resolution
of complaints.
Arizona's open meeting laws require t h a t meetings of public bodies
"... shall not be held without a t l e a s t twenty- four hours' notice to the
members of the public body and to the general public" - except i n case of
an " actual emergency." ( A. R. s. $ 38- 431.02, subsections C and D) Unless a
board's s t a t u t e s require more advance notice - as with the Board of
Chiropractic Examiners - t h i s 24- hour requirement applies.
Arizona Attorney General Opinion 78- 1 s t a t e s that the Open Meetings Act
i m p l i c i t l y requires t h a t an agenda be posted a s p a r t of the meeting
notice, because "... a meeting can hardly be termed open unless the public
knows of its time and place and subject matter t o be considered."
A l a t e r opinion held:
" Therefore, unless a n a c t u a l emergency requires
addition of an agenda item, any action on a subject not
contained i n the posted agenda must be delayed t o allow
a minimum of 24 hours' public notice."
The Board of Chiropractic Examiners, however, is required by s t a t u t e t o
post a 20- day meeting notice. A. R. S. $ 32- 902, subsection B, s t a t e s :
" B. The board s h a l l hold regular meetings a t such
places as it determines i n January and July of each
year, and may hold other meetings a t times and places
determined by a majority of the board. The board s h a l l
notif- v" the ~* u b l i co f such dates. time and A lace of
meetings a t l e a s t twenty days prior t o any meeting as
rovided by law. Meetings of the board s h a l l be open
{ o the public as provided by law." ( ~ m ~ h a saidsd ed.)
A s a r e s u l t , the Board cannot take any action on a subject unless 20 days'
public notice on t h a t subject has been given. According to the Board, i n
some cases t h i s r e s t r i c t i o n has prevented it from resolving complaints
more expeditiously, because it i s not c l e a r to what extent, i f any, the
Board can even aiscuss a matter when the subject was not posted a t l e a s t
20 days prior. Therefore, complaints received as much as 19 days before a
scheduled meeting cannot be discussed u n t i l a l a t e r meeting.
When compared with other Arizona boards, the 20- day meeting notice
requirement is unreasonable. Of the 10 boards* serviced by the Arizona
State Boards Administrative Office, nine have 24- hour requirements and the
other has a five- day requirement.
CONCLUSION
The Board of Chiropractic Examiners' statutory requirement to provide 20
days public notice of its meetings causes delays i n the Board's resolution
of complaints.
RECOMMENDATION
Consideration should be given to the following recommendation:
- The Legislature amend A. R. S. $ 32- 902, subsection B, by s t r i k i n g the
20- day meeting notice requirement, thereby allowing the 24- hour
requirement of the open meeting laws t o apply to the Board of
Chiropractic Examiners.
* These boards are: Board of Dispensing Opticians; Board of Funeral
Directors and Embalmers; Naturopathic Board of Examiners; Board of
Optometry; Board of Examiners of Nursing Care I n s t i t u t i o n
Administrators; Board of Podiatry Examiners; Board of Physical Therapy
Examiners; Eoard of Psychologist Examiners; Veterinary Medical
Examining Board; and Athletic Commission.
STATE OF ARIZONA
BOARD OF CHIROPRACTIC EXAMINERS
1645 West Jefferson. Room 31 2 Phoen~ xA. r~ zona8 5007
Telephone ( 602) 255- 1 444
December 22, 1981
Doualas R. Norton
Auditor General
State of Arizona
Phoenix, Arizona 85007
Dear Mr. Norton:
The attached report represents the response of the State
of Arizona Board of Chiropractic Examiners to the perform-ance
audit conducted by your Sunset Review Team.
If any questions should a r i s e , please feel free to contact
me.
Very truly . yours,
1/ Gary G. Le Doux, D . C .
Chairman
GGL: sa
cc: Gerald Silva, Performance Audit Manager
INTRODUCTION
The Board of Chiropractic Examiners expresses i t s appreci-ation
to the assigned Sunset Review Team of the Auditor General's
office for their cooperation in preparing the performance audit of
the Board's activities. The audit report notes that the Board is
attempting to respond t o the needs of the public by actively reviewing
cosnlaints, but also recognizes that the Board has been handicapped by
deficiencies of the chiropractic statutes. The report further acknow-ledoes
that the Board itself has attem? ted to address this problem by
seeking statutory corrections in an earlier legislative session. That
proposed legislation passed the House b u t not the Senate.
The Board, while disagreeing with certain of the legal con-clusisns
relied upon by the review team, is in agreement with the ma-j
a r i ty of the recommended 1 egi sl ati ve and orocedural changes, and in
sme cases, has adopted changes pursuant to those recommendations.
E - STATUTORY LIMITATIOF\ IS ON CllIROPRACTIC PRACTICE.
The Board's principle differences with the findinus of the
reviead team concern the proper construction of the scope of practice
under statutory language effective July 1, 1981. Relying upon a legal
opinion issued by Leqislative Council, the audit reoort claims that
the Board issued a position paper in 4ugust of 1981 that exceeded
statutory limitations.
The basis of the opinion by Legislative Council appears t o
be that t h e chanqes in statutory language enacted by the Legislature
i n 1980 and effective in 1981, did not change the scope of practice
for chiropractors either diagnostically or therapeutically. The
apinion makes an extensive legal analysis of the original statutory
% anyage, enacted in 1921, particularly in light of chiropractic as i t
was practiced at that time. I t does not contain, however, even a cur-sory
analysis of the new statutory language or raise the possibility
that the Legislature acknowledged new developments in chiropractic
practice in amending A. R. S. 932- 925 ( Practice of Chiropractic) and
A. 2.5. e32- 922( B) ( Subject for Examination).
The Board, while conceding that the statutory language is
somewhat ambiguous, contends t h a t the position paper issued by the
Board is consistent with the statute and was propounded in light of
advice received from the office of the Attorney General both formally
and in opinion form.
The Board does not, however, disagree with the recommendation
that the statutory language be clarified.
The recommendation that the Board revise rule R4- 7- 01 to ex-clude
those types of procedures specifically disallowed by the statute
is well taken and will be addressed by the Board in the near future.
11. THE BOARD'S ABILITY TO RESOLVE COMPLAINTS
The Board is in full support of the recommended statutory
changes regarding the Board's ability to resolve complaints. As the
Auditor General's report has noted, the Board has attempted to protect
the pub1 ic with the investigatory and disciplinary tools available t o
i t , b u t more adequate statutory authority is needed.
The Board would only hope that recently mandated budgetary
cuts for health requlatory boards does not make such statutory author-ity
meaningless. I n addition to numerous informal dispositions, the
Board has conducted three full hearings in the last calendar year.
One of these, which resulted in revocation of a chiropractic license,
cost the Board in excess of $ 2,900.00 ( including witness fees, service
of process, Board per diem and court reporter services and transcripts)
As the number of licensed chiropractors in the state grows,
so do the responsibilities of the Board. B u t these responsibilities
can be met only when the Board is allowed to utilize the licensing
fees generated by these additional 1 icensees.
This Board has previously souaht statutory changes to the
reciprocity statute ( which the audit report properly identifies as
being in fact a comity provision). I t is strongly fel t by the Board
that the present reciprocity statute f a i l s t o provide the Board with
sufficient means for determining the professional qualifications of
out- of- state chiropractors seeking licensure pursuant to i t s provisions.
The report's finding that the Board was forced to license at least 14
chiropractors who were unable t o pass the Arizona examination highlights
a need for statutory change. The Board, however, would enlarge the
report's recommendation for statutory change to include a requirement
that a practical examination be administered t o out- of- state licensees
seeking an Arizona 1 icense.
With regard to the report's recommendations concerning scoring
of examinations, the Board wishes t o report that i t has, by Board reso-lution,
concurred with the report's recommendation concerning the aver-aging
of scores from the national and state administered examinations.
I t expects t o take action in the near future on the issue of the required
passing scores from persons taking the national examination.
CONCLUSION
The Board of Chiropractic Examiners appreciates the report's
acknowledgealent of i t s efforts to obtain the statutory authority necessary
to properly carry out the responsibilities of a health regulatory board.
I t applauds the Auditor General's independent identification and estab-lishment
of the need for the types of legislative chanpes which the Board
has sought in the past and will continue to pursue.
APPENDIX I
LEGISLATIVE COUNCIL OPINION ( 0- 80- 20)
OCTOEER 20, 1981
October 20, 198 1
TO: Douglas R. Norton
Auditor General
FROM: Arizona Legislative Council
RE: Request for Research and Statutory Interpretation ( 0- 80- 20)
This is in response to a request submitted on your behalf by Bill
Thomson to review Legislative Council memorandum ( 0- 80- 20) taking into
consideration subsequent legal developments. No input was received from
the Attorney General concerning this request.
FACT SITUATION:
Arizona Revised Statutes ( A. R. S.) section 32- 925 defines the
limitations on the practice of chiropractic as follows:
A person licensed under this chapter to practice chiropractic
may adjust by hand any articulations of the spinal column. He
shall not prescribe for or administer medicine or drugs,
practice major or minor surgery, obstetrics or any other
branch of medicine or practice osteopathy or naturopathy
unless he is otherwise licensed therefor as provided by law.
However, in hddition to spinal adjustments a number of chiropractors
incorporate into their practices such procedures and services as:
Nutritional supplements, supplemental vitamins and therapeutic
nutrition
Shortwave diathermy
Lab Analysis, including urinanalysis and hair analysis
Acupressure
Cryctherapy
Infrared, Ultraviolet and Ultrasound therapies
iIot and cold packs including oil packs
Traction, including motorized traction
Orthopedic examinations
Orthopedic supports
Neurological examinations
Kinesiological examinations
X- rays
QUESTIONS PRESENTED:
1. Do any of the above practices constitute a violation of the
provisions of A. R. S. section 32- 925?
2. What guidelines may be used to evaluate whether other
chiropractic practices may violate the provisions of A. R. S. section 32- 925?
ANSWERS:
1. Yes.
2. See Discussion.
DISCUSSION:
In answering your questions regarding the iegality of certain services
and procedures performed by chiropractors, we draw your attention to Laws
1980, chapter 191, sections 5 and 6, which repeals A. R. S. section 32- 925 and
adds a new section 32- 925 and which became effective July 1, 1981.
The first part of this memorandum is applicable to services and
procedures performed by chiropractors prior to July 1, 1981. The second
part of this memorandum addresses the legality of these services and
practices if performed after July 1, 1981, and which are governed by Laws
1980, chapter 191.
PART I - CHIROPRACTIC PRACTICE PRIOR TO JULY 1, 1981.
Under A. R. S. section 32- 925, the only method which a chiropractor
may use to treat his ~ a t i e n tis to " adjust by hand any articulations of the
s? inal column." This statute also expressly prohibits a chiropractor frcm
prescribing or administering medicine or drugs, practicing minor or major
sxrgery, obstetrics or any other branch of medicine or practicing osteopathy
or naturopathy.
This statutory prevision has remained unchanged since its enactment
h 1921, except for a 1959 amendment which added r, aturopaz,? y as a
prohibited practice. ( For repeal of this provision and enactment of new
A. R. S. section 32- 925, see Parr 11 of this memorandum.)
Under the plain meaning rule, wcrds of a statute are to be given their
ordinary meankg' un! ess it appears frcm the context or otherwise that a
difrerznt meaning is ntended. I- Iuerta v. Flood, 103 Ariz. 608, 447 P. 2d 866
( 1968).
The meaning of the word " adjustt1 is not defined by Arizona statute or
case law. The ordinary dictionary meaning of adjust is " to bring to a true
and effective relative position." Webster's Third New International
Dictionary 27 ( 1976).
The meaning of " articulation" is not defined by Arizona statute or
case law. The ordinary dictionary meaning of articulation is " a joint or
juncture between bones or cartilages in the skeieton of a vertebrate, being
immovable when the bones are directly united, slightly movable when they
are united by an intervening substance, or more or less movable when the
articular surfaces are covered with smooth cdrtilage and surrounded by a
fibrous capsule with synovial membrane. Id. at 124. ( Synovia is a
transparent lubricating fluid secreted b ys ynovial membranes of
articulations.)
The " spinal column" is the " articulated series of vertebrae connected
by ligaments and separated by more or less elastic intervertibrate
fibrocartilages that in nearly all vertebrates forms the supporting axis of
the body and a protection for the spinal cord extending from the hind end of
the skull through the median dorsal part of the body and to the end of the
tail.'' - Id. at 21 96.
Thus, the ordinary dictionary meaning of " to adjust by hand the
articulations of the spinal column" is to bring into true position the joints or
junctures between bones or cartilages in the human vertebrae by use of the
hands.
The Arizona statutory definition of chiropractic practice is limited to
manipulation or adjustment of the s p i ~ eby hand only. This very narrow
definition of c h i r o p r x t i c FT? C:: ; IidCenPtica l or very similar to other
statutory definitions of chiropractic enacted by other states in the early
1920' s.
Also, this narrow definition of chiropractic conforms to the
phlcsophy and ideas of chiropractic practice as understood at the time of
enactment. That this definition is not expressive of present day ideas and
practices of chiropractic as taught in chiropractic schools today or
practiced in other states i s not relevant to determining the scope of
chiropractic practice authorized by A. R. S. section 32- 525. Only the
legislature may define the practice of chiropractic, and the meaning of
chiropractic is that meaning intended at the time t h e statutory definition in
A. R. S. section 32- 925 was enacted. Courts may not look outside the words
of the statutory definition and read into t h e s t a t u t e words not contained in
the statl; te, as that would defeat : he legislative intent.
I t is a rule of statutory construction that the intent of the legislature
must be determined by the words used. Barlow v. zones, 37 Ariz. ? 96, 294
P. l I06 ( 1 930).
Where a statute expressly defines certain words and terms used in the
statute, the court is bound by the legislative definition. Pima County
- v. Sc hool District No. One of Pima County, 78 Ariz. 250, 278 P, 2d 430
( 1954).
If the language of a statute is plain and unambiguous, and can be
given but one meaning which does not lead to an impossibility or absurdity,
such as could not have been contemplated by the legislature, the court will
follow the meaning, even though the result may be, in the court's opinion,
harsh, urtjust or a mistaken policy. Garrison v. Luke, 52 Ariz. 50, 78 P. 2d
1120 ( 1938).
An unambiguous statute should not be interpreted but should be
enforced according to its clear language. Industrial Cornrnission v. Price, 37
Ariz. 245, 292 P. 1099 ( 1930).
If a statute is complete, unambiguous and workable on i t s face, the
court cannot read into it any provisions which change the apparent meaning
because of matters outside t h e face of the statute. Peterson v. Central
Arizona Light and Power Co., 56 Ariz. 231, 107 P. 2d 205 ( 1990).
It is a rule of- statctory construction that a statutory definition should
be given s. definition consonant with ideas prevailing at its enactmenr.
Maricopa County Municipal Water Conservation Dist. No. 1 v. Southwest
Cotton Co., 39 Ariz. 65, 4 P. 2d 369 ( 1931).
A. R. S. section 32- 925 clearly and unambiguously limits chiropractic
practice to adjustment by hand of the articulations of the spinal column, and
no other rnetliod of treatment is authorized. This definition of chiropractic
practice was the prevalent view of chiropractic practice at t h e t i m e t h e
statute was enacted.
Thus, in an Io! va statutory definition of chiropractic practice neariy
identical to Arizona's which defined chiropractor as " a person who treats
human ailments by the adjustment by hand of the articulations of the spine
or by other incidental adjustments", the Iowa Supreme Court, in applying
that statute, stated that:
chiropractic is a system of healing t h a t t r e a t s diseases by
manipulation of the spinal column; the specific science that
reduces pressure on the nerves by adjustment oi the spinal
vertebrae. Ti-! ere are no instruments used, the treatment
being by hanTonly. ( Emphasis added.) State v. Boston, 226
Iowa 429, 278 N. W. 291, aff'd., 284 N. W. 1U3 ( 1939).
Other courts have similarly defined chiropractic practice as: " the
practice of adjuszing joints of the spine by hand for the curing of diseases",
Nicodeme v. Bailey, 243 5. W. 2d 397 ( Tex. App. 1951); " chiropractic means
hand manipulation and the word is applied to a system of healing t h a t t r e a t s
disease by manipulation of the spinal column1f, State v. Gallagher, 101
Ark. 593, 143 S. W. 98 ( 191 2).
Arizona's statutory definition of chiropractic practice seems to
conform to the original concept of chiropractic as discovered by its founder.
The chiropractic theory, at the beginning at least, held
that all diseases and illnesses were due to one cause-- a
dislocation or subluxation of one or more of the spinal
vertebrae resulting in pressure upon the nerve or nerves
issuing from the spinal cord at that point. The pressure or
impingement, according to chiropractic theory, prevents the
nerve from doing i t s work and disease : hen results in rhe organ
or part which the nerve activates. To cure the disease the
chiropractor " adjusts" the subluxated vertebrae to release the
pressure; the ' chiropractic thrust' is used to push the
out- of - line vertebrae back into place.
T:+ s theory is alleged to have been discovered by
D. D. Palmer. It was developed by his son, B. J. Palmer who is
sometimes relerrea to as ' the ciaduy of all chiropracrors.' As
i t was with osteopathy, chiropractic has gradually departed
from its initial theory of the causation ol disease, causing a
split in the ranks. B. J. Palmer remained steadfast in the
original concept; others accepted the germ theory and began
to employ various and sundry modalities, particularly those in
the field of physiotherapy. Those who embraced the newer
concept of chiropractic were referred to as ' mixers. Lawyer's
Medical Encyclopedia, edited by Charles Frankel, Vol. I , sec.
1.2 ( 1958).
Under A. R. S. section 32- 925 effective prior to July 1 , 198 1, the only
, mode of treatment a chiropractor could engage in was:
1. Adjustment by hand,
2. Of articulations of the spinal column.
This statutory limitation is based on the original concent of chiropractic -
that all diseases are due to one cause, the dislocation or subiuxation of
spinal vertebrae.
Because of this narrow statutory definition of chiropractic practice,
maqy of the procedures and services listed in your question are not
authorized.
In addition, such practices or services performed by chiropractors
may violate other statutes in addition to A. R. S. secriw. 32- 925. Therefore
we will consider the listed practices or services separately.
- Vi- tam ins
A chiropractor is not authorized to prescribe or administer vitamins
for the treatment, prevention, mitigation or cure of disease.
Under A. R. S. section 32- 925, a chiropractor " shall not administer
medicine or drugs".
The words " medicine" and " drug" are not defined in the chapter
regulating chiropractors.
Under the plain meaning rule, words of a statute are to be given their
ordinary meaning unless i t appears from the context or otherwise that a
different meaning is intended: - Huerta v. Flccd, 103 Ariz. 608, 447 P. 2d 866
( 1 968).
The ordinary dictionary meaning of " medicine" is " a substance or
preparation used in treating disesse", and the ordinary meaning of " drugI1 is
" a substance used as a medicine." Websterls Third New International
Dictionary 1402 ( 1 976).
It is also a rule of statutory construction that if a statute contains
words, the meanings of which hzve becane 7k- elf- settled under judicial
decision, it is presumed that the legislature used such words in the sense
justified by the long judicial sanction. State v. Jones, 94 Ariz. 334, 385
P. 2d 213 ( 1963).
Under h t h the plain ordinary meaning of drug and medicine and the
common law meaning a defiried by judicial decision, vitamins prescribed or
administered for the treatment, prevention or mitigation or cure of a
disease or ailment are a " drug" or " medicine".
The comnlon law meaning of drug is any substance that is used in the
treatment, prevention or diagnosis of disease. A substance may be a drug
under one set of circcrrlstances and not another, the test being whether i t is
sold for, or used as, a medicine. 28 C. J. S. Drug. 496 ( 1 94 1).
This deficition has been adopted by the Arizona Supreme Court w'nich
stated in - Stewa- rt v. Rober~ son, 4 5 Ariz. 143, 15 1 , 4G 2. 2d. 979 ( i 935), that
" generally the term ' drug' includes all medicines for internal and external
use in connection with th& treatment of disease or t o e f f e c t any strl; cture or
function of the human body." ( Emphasis added.)
Thus, the Kansas Supreme Court has held that vitamin pills
administered by a chircpractor in his professional capacity, to his ailing
patient, and for which he expected to make a charge, constituted medicine
or drug within a starute defining practice of chrcpractic as not including
administration or prescription of any drug or medicine. State v. ? Clissouri
-! 3oard of Chiropractic Examiner:;, 365 S. W. 2d 773 ( Kai?. Ct. App. 1963).
In addition to violating A. R. S. section 32- 925, prohibiting
chiropractors from prescribing or administering a medicine or drug, a
chiropractor who prescribes without a medical license vitamins for the
treatment or cure of a disease violates A. X. S. section 32- 1455, which
prohibits the practice of medicine by one without a medical license.
A. R. S. section 32- 1455, subsection A, paragraph 1 provides that:
A. The following acts a r e class 5 felorties:
I . The p r a c t i c e of medicine by one not licensed or exempt
from the requirement therefor pursuant t o this chapter.
" Practice of medicine" in the above s t a t u t e is defined in
A. R. S. section 32- 1401, paragrzph 9 as follow^:
" Practice of medicine", which shail include the practice of
medicine alone, the practice of surgery alone, or both, means
the diagnosis, treatment or correction- of, or the a t t e m p t 2
or the holding of oneself out as being ab! e t o diagncse, t r e a t o- r
correct any and ail human diseases, injuries, ailments cr
infirmities, whether physical o r mental, organic or emotional,
by any means, methods, devices or instrumentalities, except as
t h e s a m e may be among the acts or persons not affected by
this chapter. ( Emphasis added.)
In Harris v. State, 92 So. 2d 217 ( Miss. 1957), the iCIississippi Supreme
Court held t h a t a chiropractor who injected vitamins into the body of a
patient to cure a vitahli! deficiency was guilty of illegally practicing
medicine without a license, even though the use of a hypodermic needle
itself did not constitute thz Illegal practice of medicine.
The c o u r t in - H- a rris stated that, since a vitamin deficiency in the
human body is a disorder or ailment interfering with normal processes of
growth and is likely to result in disesse, the administration of vitamins to
cure the deficiency constitutes the practice of medicine.
In Norville v. Mississippi S t a t e Medical Ass'n.. 364 So. 2d 1084 ( Miss.
1978), the same court held t h a t a chiropractor who prescribed or suggested
tl~ eu se of vitamins for his patients was guilty of the unlicensed practice of
medicine, notwithstanding rhat those vitamins did not require a rcedical
prescription 2nd could he purc21ased by any layman over the counter in mcst
stores. The court distin~ dlshedt he selling or purchasing of vitamins at the
retail level and their prescription or use in the context of a
practitioner- patient relat: onship:
We are fully cognizant that any layman can obtain such
vitamins and t h a t any retailer can sell such vitamins.
Purchase of or sale of vitamins is not however the vice which
is condemned here. - Rs ther the vice condemned and t h a t
which constitctes the ;~ nlicensedp ractice of medicine i s ( I)
rescription of vitamins, ( 2) to cure, ( 3) an ailment or disease,
) for compensation.
The chiropractor on the present facrs does not simply sell
vitamins to a customer who asks for them as does a retailer.
Rather, he represents to a patient who has come to him that
such vitamins wili cure a disease or ailment. Further, unlike
the relative or friend who recommends that someone take
vitamins for nutrition or to prevent colds, and neither expects
nor receives any cornpensation for such " advice," the
chirooractor in a orofessional caoacitv advises the oatient to
take the vitamins for the ailment or disease, charges
compensation for such advice, and may cause the patient to
thnk his ailment or disease will thereby be cured. This is the
vice condemned . . . . ( Emphasis added.)
In State v. Horn, 4 Ariz. App. 541, 422 P. 26 172 ( 1967), the Arizona
Court of Appeals held that, although the defendant had a license to sell
vitamins, when he sold vitamins as a treatment for cancer he was guilty of
practicing medicine without a license. The court relied on the ordinary
definition of med~ cinef or its holding that vitamins used in the treatment of
disease are a medicine:
Medicine as defined by Webster is " any substance administered
in treatment of disease; a remedial agent; a remedy." - The
fact that the substance so employed may have value as food,
and have a tendency to build tip and restore wasted or diseased
tissue wiil not deorive it of its character as a medicine if it be
administered and empioyed for that pwpose. ( Emphasis
added.) 4 Ariz. App. at p. 547.
In addition to violating A. R. S. section 32- 925, prohibiting
chiropractcrs from prescribing or administering my drug or medicine, and
A. R. S. section 32- 1455, prohibiting the unlicensed practice of medicine, a
chiropractor who prescribes or administers vitamins for the treatment or
cure of a disease is also guilty of violating A. R. S. section 32- 1961,
subsection A, prohibiting the sale or dispensing of any drug from one who is
not a ptxxmacist. A. R. S. seczion 32- 196 1 provides that:
A. I t is i~ nlawfui for any person to manufacture,
compound, sell or dispense any drugs or to dispense or
compound the prescription orders of a medical practitioner,
unless he is a pharmicist or a pharmacy intern acting under
the direct supervision of a pharnlacist, except as provided in
sec? ion 32- 1 92 I. ( Emphasis added.)
Exceptions from the above provision are provided for in
A. R. S. secticn 32- 1 92 1 for medical practitioners and certain retailers and
wholesalers who hold a permit from the Arizana state board of pharmacy.
A. R. S. section 32- 192 1 provides that:
Nothing contained in this chapter shall be construed to
prevent:
1 . The personal administration of drugs and devices kept
for emergencies by a medical practitioner.
2. The sale of patent or proprietary medicines, when sold
at retail in original packages by a person holding a permit
under the provisions of this chapter.
3. The sale of drugs, a t wholesale, by a wholesaler or
manufacturer therecf , holding the required permit issued by
the board, to a person holding the required permit issued under
the provisions of this chapter. ( Em phajis added.)
" hledical practitionertt as used in the above statute is defined in
A. R. S. section 32- 190 1 , paragraph 26, as follows:
26. " Medical practitioner" means a physician ( M. D. or
D. O.), dentist, podiatrist, veterinarian, or other person
licensed and authorized by law to use and prescribe drugs and
devices for the treatment of sick and injured human beings or
animals or for the diagnosis or prevention of sickness in human
beings or animals in this state. ( Emphasis added.)
Therefore, under the above definition, a chiropractor is exempt from
A. R. S. section 32- 192 1 oniy if he is an " other person aurhorized by law to
use and presc- ik drugs" for the Treatment, diagnosis or prevention of
sickness in human beings or animals.
The term " authorized by lawtt means as provided by legisiative
enactrhent. Kreiss v. Clerk of superior Court, 1 l I ~ r i z3.7 3, 530 < 2d 365
( 1975). Since A. R. 5. section 32- 925 expressly prohibits chiropractors from
prescribing or administering drugs, chirdpractbrs do not fall within the class
of persons exempted from A. R. S. section 32- 196 1 .
Vitamins used in the treatment of disease are drugs for purposes of
applying A. R. S. section 32- 192 1. The word drug as used in A. R. S. section
32- 192 i is defined in A. R. S. section 32- 1 90 1, paragraph 13, subdivision ( b) to
include the following:
( b) Articles intended for use in the diagnosis, cure,
mitigation? treatment or prevention of disease in rnan or orher
animals. ( Emphasis added.;
The Arizona State Board of Pharmacy in its rules distinguishes when
a vitamin product is deemed to be a drug and when it is not. A. C. R. R.
R4- 23- 501 provides:
Classification of vitamin products:
I. The Board of Pharmacy hereby classifies as a non- drug
product any vitamin product which is marketed only for the
purpose of supplementing the diet, provided that the label
supplies adequate information as t o t h e normal intake of each
vitamin contained in the preparation and the amount of each
vitamin contained in the product and if t h e same be not held
out for the treatment of any disease but rnerely as a food
accessory, and provided, further, t h a t t h e principal label of
such product bears the additional conspicuous statement, to
wit: " NOT FOR MEDICINAL USEt1.
2. Any vitamin pre~ aration which is held out to be a
treatment for any deficiency disease or f o r t h e correction of
any symptom of disease, or for the prevention, mitigation or
cure of disease, either by direct statement or by inference, is
hereby classified as a drug within the rneaning of the
pharmacy act of the State of Arizona. ( Emphasis added.)
This definition is in conformity with the common law definition of
drug adopted in State v. Horn, 4 Ariz. App. 541, 422 P. 2d 172 ( 1967), which
held that It is the use of the substance which determines whether it is a
drug. This d e f i n i t i o h f drug in A. R. S. section 32- 1901 is derived from the
Federal Food, Drug and Cosmetic Act ( 52 Stat. 1041, 21 U. S. C. 301). In
applying that definition, federal courts have always held that it is the use of
the article which determines if a substance is a drug, Gadler v. U. S., 425
F. Supp. 244 ( D. Minnesota 1977).
Therefore a chiropractor prescribing vitamins as a . method of
treatment is in violation of A. R. S. section 32- 1961, in addition to being in
violation of A. R. S. sections 32- 925 and 32- 1455.
Nutritional suo~ lements
A chiropractor is not authorized to prescribe or administer
nutritional supplements for the treatment, prevention or mitigation of
disease.
Because, under the plain rneaning of " drug" and " medicine" and the
meanings of these terms as defined by judicial decision, any substance used
in the treatment, prevenrion, mitigation or diagnosis of disease is a
medicine or drug, there is no reason for treating such items labeled as
nutritional substances any differently from vitamins. The above discussion
relating to the administration and prescription of vitamins as constituting a
violation of A. R. S. sections 32- 925, 32- 1455 and 32- 19b1 is also applicable
to nutritional supplements.
Therapeutic nutrition
Your request does not give illustrations of " therapeutic nutrition".
Therefore, in this memorandam, we will understand that rerm in its ordinary
dictionary meaning. " Therapeutic" means " relating to the treatment of
disease". Therapeutic is derived from the Greek word " therapeia" or
" medical treatment". " Therapy" means the " treatment of diseases by
various methods". " Nutrition" is " the study of the food and drink
requirements of human beings or animals". Stedmanls h4edical Dictionary
( 4th Unabridged Lawyer's ED.).
Therefore, it would seem that " therapeutic nutritiont' would