The Cost of Disunity -- Did the California Board Do the Right Thing?

By Editorial Staff

The actions of the chiropractic profession are under constant scrutiny. The California Board of Chiropractic Examiners was recently forced to pass emergency regulations regarding vaccinations and chiropractic care of infectious diseases (please see "Calif. Board Adopts Emergency Regulations under Threat" on the front page of this issue).

The third and final regulation was not adopted at the June 3, 1993 meeting. It wasn't put to a vote until the July 29, 1993 meeting, where it passed by a narrow four-to-three vote.

The regulations were passed because Assemblyman Burt Margolin introduced a bill threatening the chiropractic scope of practice in California. Should the Calif. Board have succumbed to political pressure and passed these emergency regulations? Did the board do the right thing?

The Board of Directors of the California Chiropractic Association knew that Assemblyman Margolin as chairman of the Health Committee could put chiropractic's scope of practice before the voters in 1994 as a ballot iniative if the board of examiners did not act on their own. A ballot initiative would have forced the chiropractic profession in California to mount a campaign to sway the voters to chiropractic's side, at an estimated cost of some 20 million dollars. And even then, there was no guarantee that the voters would side with chiropractic. The real fear was that chiropractors could find themselves placed under the authority of the Calif. Medical Board.

Given this, what effect did the eight week delay by the Board of Examiners in adopting the third regulation, coupled with the three "no" votes, have on the chiropractic profession's political credibility? Why couldn't the profession decide its course and be united?

In searching for the answers to these questions, "DC" asked various leaders from inside and outside the profession for their viewpoint. Desiring this to be an academic question rather than an attempt to lay blame, none of the seven board members were contacted.

Assemblyman Burt Margolin, as instigator of this affair, leads off with his reactions to the board's actions.

"I was pleased by the board's action. It was consistent with what I've been advocating for several months now. The members of the board testified before my committee to the effect that they did not believe their was a problem in this area. Their basic posture last spring was that it was not an issue. It took awhile for them to come to the conclusion that it was an issue and that there was a substantive matter at stake, that members of the public and the legislature had legitimate concerns. I wasn't please by the length of time it took them to act, and their initial resistance to act. None of that was very encouraging, nor did it instill great confidence. But their ultimate action, I was pleased by and was appropriate. I know that some members of the board were more prepared than others to act on this issue.
"I have concerns about a group within the chiropractic profession that appears intent on expanding their activities beyond their training in a way that I think is dangerous. My concern is on this fringe element of the chiropractic profession that these regulations are directed at in restricting the behavior. I wouldn't make any general conclusion about chiropractic as a larger profession from this dispute. This is a regulatory issue. It involves the misconduct of a fringe element of the profession and the fact that there was some delay. I have some ongoing concerns about the chiropractic board that time alone will address. My bill originally came to life not only because there was a Wall Street Journal article, but because the Board of Chiropractic Examiners seem to be so indifferent to their mission, which is to regulate their profession, and guarantee the public is adequately protected. Their posture was, 'We can't do anything about it.' The credibility issue here really doesn't involve the chiropractic profession per se, but there is some question here about the zeal with which the board is prepared to pursue its responsibilities. Now their recent actions adopting, preliminarily at least, these regulations is encouraging, it suggests they may be prepared to undertake their responsibilities with more seriousness and more attention to the interests of the public. The long delay and the initial reaction of the board that it was a nonissue is troubling."

Peter Martin, DC, president of Palmer West, made these comments:

"Personally, after 25 years as a licensed chiropractor involved in everything from education to private practice to association activity and board membership, I can say that I am as sick and tired of having to react politically by cleaning up the messes of an irresponsible few as is anybody else who may be reading this. Unfortunately, it seems that the irresponsible few, like the biblical poor, will always be with us, forcing the majority to compromise in ways they might not prefer in order to protect the profession.
"The regulations in question, which pertain to infectious diseases are a good example. The excesses outlines in the infamous Wall Street Journal article prompted Assemblyman Margolin to propose legislation which would open the Initiative Act to change, and would prevent doctors of chiropractic, among other things, from treating infectious diseases.
"The Board of Chiropractic Examiners, in my opinion, addressed the concerns of Assemblyman Margolin and others in the legislature by proposing emergency regulations which would, by agreement, pre-empt legislation to open and change the Initiative Act. By placing the regulations under Section 317 rather than Section 302 as proposed by Assemblyman Margolin, the Board of Chiropractic Examiners has retained jurisdiction over the enforcement of the regulations. This is an important distinction to be remembered.
"Political compromises of this type rankle and hurt, but at times they are necessary if as a profession we are to continue to maintain jurisdiction over ourselves, and continue to make progress to achieving equity in health care.
"While unpopular, a 'yes' vote on these regulations by the board is a courageous stance to take. A 'no' vote, while emotionally appealing, could certainly impede legislative process and could also force the legislators to open the Initiative Act, perhaps causing irreparable harm to the profession.
"Again, in my opinion by adopting these emergency regulations, the board acted responsibly on behalf of all of us in chiropractic."

Another summary of the situation was offered by Marilyn Smith, DC, former chair of the California Board of Chiropractic Examiners:

"I feel that our profession is in a no win situation. At best this appears to be more of a damage control issue. So, how can we approach this with the least amount of risk?
"I honestly feel with the lack of education of our legislators and the public as to what chiropractic is, that if our Initiative Act is open up and placed on the ballot in 1994, that we would lose. Chiropractors would not be able to treat what's in question and the enforcement would be carried out by the Attorney General's office instead of the state board. Given the facts of "what is, here and now," I believe this is just too risky to attempt.
"As a chiropractor, I have serious concerns. Are we going to continue to succumb to political threats? What are the ramifications if this becomes a public battle, e.g., would this be a public relations battle? And, of course, what about depriving patients of their right to make their own informed decision regarding their health care?
"Since the question asks specifically about the affect of the political credibility of our profession, I feel the operative word is 'political.' Drawing from my background as a former California State Board member, I feel the ramifications of a 'no' vote would be far worse than a 'yes' vote. A 'yes' vote will keep the emergency regulations under the control of the state board, therefore, when research can validate chiropractic effectiveness in the above areas, these regulations can more easily be changed. In the meantime, a plan can be devised to better educate our legislators and the public and still keep our long hard fought and well deserved credibility with them. I feel we will gain much more in the long run."

John D. Hemauer, DC, former member and chairman of the California Board of Chiropractic Examiners adds his thoughts:

"It has long been acknowledged that bacterial infections are very serious diseases, with even fatal results, if not treated by antibiotics. I am frankly surprised that some chiropractors think to the contrary.
"Preventive measures may preclude some bacterial infections, but once present they generally require antimicrobial therapy. As a statement in conformity with worldwide public health policy, the state board's proposed "infections disease" regulation is most appropriate.

John Maltby, DC, president of the International Chiropractors Association of California (ICAC) had this comment:

"I'm very concerned that certain members of the California Board of Examiners feel this is some type of major attack on chiropractic. The legislature understands that there are differences within the profession. However, the profession is dealing with those differences."

Gerard Clum, DC, president of Life College of Chiropractic West added:

"The vote itself did not concern me in a political sense. What I found more troubling, was the fact that the board failed to pass this measure under the threat of very real political consequences in June."

Bradley J. Sullivan, DC, president, California Chiropractic Association was more concerned:

"Make no mistake, CCA's primary responsibility is to ensure the right of DCs to practice chiropractic in the manner for which we are trained. To continue to protect this right, the leadership of CCA recently had to make the painful decision to support a regulation on infectious disease. This decision was based upon clear messages from our friends in the legislature that they do not object to the purpose of Assemblyman Margolin's bill, that is to amend the Chiropractic Act to prohibit treatment of infectious disease, but they do object to the vehicle, the 1994 ballot. The Wall Street Journal article and testimony of chiropractic doctors treating AIDS and other emotionally charged infectious diseases has created an atmosphere in the legislature which, be it unfortunate and unfair, requires this profession to seek a regulatory solution to the matter or face a challenge to our initiative status. The political reality is that organized medicine and the insurance industry would ban together to see this ballot measure's passage. CCA would naturally fight these ominous foes, but their combined political force and funds could out pace us by ten fold. The state board was given opportunity to act on this matter at their June meeting, but failed. Their inaction had two extremely undesirable consequences. First, it placed in the mind of the legislature, rightly or not, that the board was a captive of the profession and wasn't serious in its role in protecting the consumer public. Secondly, this association was forced to utilize significant good will with the legislature simply to provide those members of the board, who fully understood the seriousness of this matter, a second opportunity to find a solution. This good will, by the way, could have been wisely used in the workers' compensation reform wars as well as in future debates over personal injury and health care access.
"We live in a world which isn't controlled by chiropractic doctors. California's courts are not occupied by DCs and neither is the legislature. We need to understand this reality and, more importantly, be prepared to adjust to its tenets when the alternative of not compromising brings greater and more severe consequences."

And finally, a viewpoint from Franz Wisner, spokesperson for Governor Pete Wilson:

"There are always going to be issues where there is division in any profession, it more often than not benefits professions to operate from a coordinated agenda. It's always easier to solve problems if there is a consensus of all parties trying to solve a problem. The administration is fully aware that this is a problem that needs to be addressed, our feeling is that it can best be addressed administratively rather than through legislation."

The experience of the California Board will give other state boards pause for thought. It's an issue the chiropractic profession must address, but not a time for panic. New York state, for instance, has had an infectious disease regulation since 1963. Article 132, Section 6551 of the New York State Education Law states that a DC license "shall not permit the holder to treat any infectious diseases..." Reliable sources in New York confirm that there has never been any formal action taken against a DC concerning the infectious disease regulation.