Clarifying The Scope Of Practice In Texas

As the President of the Texas Podiatric Medical Association (TPMA), I want to respond to your December 2011 cover story, “Scope of Practice Update: Where Things Stand,” as it relates to Texas. I hope to clarify some misinformation and inaccurate facts that could have a negative effect on Texas if left unchallenged.

   Richard Pollak, DPM, who practices in San Antonio (and is a longtime member of the Texas Podiatric Medical Association), was asked by the author to provide his personal assessment of the scope of practice of podiatric medicine in Texas. His viewpoints are his own, were based on practicing podiatric medicine in San Antonio for 31 years, and were not meant to reflect the position of the TPMA.

   In addition to sharing his thoughts, Dr. Pollak had requested that the author contact Don Canada, the Executive Director of the TPMA, to discuss the scope of practice in Texas. The author’s communication with Mr. Canada was limited specifically to the litigation at Hendrick Medical Center in Abilene, Texas. In the future, Mr. Canada would be an asset to you in addressing the full gamut of scope of practice issues and provide pertinent facts or experts for subsequent articles.

   Your article stated that “in Texas, the Texas Podiatric Medical Association has spent more than $1 million fighting to get ‘ankle’ into law over the last decade. The fight began in 2001 when the Texas State Board of Podiatric Medical Examiners (TSBPME) published a broadened scope of practice for Texas podiatrists. The new scope, as the board presented it, attempted to define the foot.”

   Part of this is true. We have spent over $1 million in legal expenses (over 11 years) so far. However, this paragraph is inaccurate and misleading as the TSBPME’s action was not a “broadened scope of practice” or a “new scope,” but simply a rule defining “foot.” For decades (pre-dating this rule defining “foot”), podiatrists in Texas could (and still can) perform procedures on the ankle depending on their training and whether the hospitals at which they sought to perform such procedures had granted them privileges to do so. In late 2000, however, the TSBPME chose to promulgate a formal rule, clarifying what constitutes the “foot.”

   The rule defining “foot” set off a legal battle that has lasted for over 10 years. In an effort to get the facts straight about the situation in Texas, I offer the following on the lawsuits and their effect on the scope of practice in Texas.

   In 2002, the Texas Medical Association (TMA) and the Texas Orthopaedic Association (TOA) filed suit against the TSBPME in Travis County District Court. In this lawsuit, the TMA and TOA asked that the court enter judgment that the board’s definition of the word “foot” is invalid and unenforceable, and that the practice of podiatry in Texas is limited to treatment of the human foot, and does not extend to the bones of the ankle or other anatomical structures. On December 23, 2002, the Texas Podiatric Medical Association (TPMA) intervened as a party in this litigation.

   On August 23, 2005, District Judge Darlene Byrne entered a judgment declaring that the TSBPME’s rule defining the word “foot” was valid. The TOA and the TMA appealed Judge Byrne’s decision to the Third Court of Appeals in Austin, Texas. The rule remained in place pending the final outcome of the litigation (including appeals) and the scope of practice remained unchanged.

   On March 14, 2008, the Texas Court of Appeals ruled that the TSBPME exceeded its authority when it promulgated the rule defining the word “foot” because “the terms of the rule authorized podiatrists to treat parts of the body that are well above the ankle.”

   Some media reports suggested that the court eliminated the ankle from the existing podiatric scope of practice but this is incorrect. It is worth noting that even at the invitation of the TOA and the TMA, the court declined to declare that the practice of podiatric medicine is limited to the foot and did not otherwise attempt to define the foot. More specifically, the court did not disagree that the scope of podiatric medicine includes the ankle.

   In March 2008, the TPMA, the TSBPME and Bruce A. Scudday, DPM, filed their motions for rehearing with the Court of Appeals. In May 2008, the Court of Appeals overruled the motions for rehearing, withdrew its prior opinion and substituted a new opinion which, once again, states that the TSBPME exceeded its authority when it promulgated the rule defining the word “foot” because the terms of the rule authorize podiatrists to treat parts of the body that are well above the ankle. However, the court once again declined to declare that the practice of podiatric medicine is limited to the foot and did not otherwise attempt to define the foot. More specifically, the court did not disagree that the scope of podiatric medicine includes the ankle.

   Finally, in its substituted opinion, the court’s interpretation of the statute regulating the practice of podiatry is that it does not allow Doctors of Podiatric Medicine to treat parts of the body that are well above the ankle and that they are limited to treating “any disease, disorder, physical injury, deformity, or ailment” of parts of the body at or below the ankle.

   The TPMA, the TSBPME and Dr. Scudday appealed the Court of Appeals decision to the Texas Supreme Court and it was not until June 18, 2010, that the Texas Supreme Court denied the petitions for review. Additional motions were filed and denied by the Texas Supreme Court as well. As a result, the TSBPME rule defining the word “foot” became invalid. However, that did nothing to limit or broaden the scope of practice for Texas podiatrists.

Final Notes

The DPM’s legal scope of practice has not been expanded (or contracted) over the last 11 years. However, as a result of the litigation, the Court of Appeals decision and the Texas Supreme Court’s action, hospitals are much better informed regarding the scope of practice issue, and the result, with regard to podiatric privileges, has been very positive. Regardless of the characterization in the article that Texas is a “restrictive state,” Texas is not a restrictive state as the DPM’s legal scope of practice includes the ankle because the “foot,” consistent with the Court of Appeals decision, is that part of the body at or below the ankle.

   The TPMA continues to advise hospitals and ambulatory surgical centers that, based upon the statutory definition of podiatry (§202.001(a)(4), Texas Occupations Code) and the Court of Appeals decision, the DPM’s legal scope of practice in Texas continues to be as follows:

   “Podiatry” means the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method. The “foot” is limited to that portion of the body that is at or below the ankle. “Any system or method” authorizes podiatrists to treat these features by utilizing procedures that are within the scope of their training.

   Podiatric medicine and surgery is alive and well in Texas. We offer the full gamut of podiatric privileges in treating pathology of the foot by any means necessary. This includes operating on the ankle and structures in the leg when treating a foot problem, and includes monitoring hyperbaric oxygen treatments when treating a foot problem. So as Mark Twain once said, “the report of my death (and the death of the ankle in Texas) was an exaggeration.”

Sincerely,
Damien M. Dauphinée, DPM, FACFAS, FAENS, CWS-P, FACCWS
President, Texas Podiatric Medical Association

For further reading, see “Scope Of Practice: Where Things Stand” in the December 2011 issue or at https://bit.ly/tDlzmn .