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Arkansas Chiropractic Board Trying to Stop
Physical Therapists from Manipulating


The Arkansas State Board of Chiropractic Examiners has fined physical therapist Michael Teston, of Little Rock, Arkansas, $10,000 for practicing chiropractic without a license. The action was based on the claim that he had manipulated a patient's spine. The Arkansas Board of Physical Therapists has ruled that Teston's treatment was mobilization, not manipulation, and was therefore within the lawful scope of physical therapy. However, the chiropractic board concluded that his treatment was manipulation, which is reserved licensed chiropractors and physicians, The chiropractic board's ruling is part of a longstanding chiropractic campaign intended to stop physical therapists from doing what chiropractors consider to be chiropractic. About two years ago, the American Chiropractic Association sought (unsuccessfully) to prevent Medicare from paying for manipulation performed by physical therapists.

The brief below was filed as part of Teston's appeal to the Circuit Court. Contributions to his defense fund should be sent to ArPTA fund for Michael Teston,, c/o Jennifer Coleman, 9 Shackleford Plaza, Suite 1, Little Rock, AR 72211. Additional information is available on Teston's Web site.


BRIEF FOR PLAINTIFF

INTRODUCTION

Michael Teston, a licensed physical therapist, appeals an Order entered against him by the Arkansas State Board of Chiropractic Examiners ("Chiropractor Board") that is captioned "Findings of Fact, Conclusions of Law and Order" ("Order"). The Order is attached hereto as Appendix, Tab 1. The Chiropractor Board entered the Order based on its finding that Mr. Teston had practiced chiropractic in the State of Arkansas without a license in violation of the Arkansas Chiropractic Practices Act, A.C.A. §§ 17-81-101 et seq. (the "Chiropractic Act").

The issue before the Chiropractor Board was whether Michael Teston administered treatment to his patients that was (1) a "mobilization" that he is specifically permitted to perform as a licensed physical therapist by the Arkansas Physical Therapy Act A.C.A., §§ 17-93-101 et seq. (the "Physical Therapy Act") or (2) a "manipulation," that to some extent, he, as a licensed physical therapist, is prohibited from performing under the Chiropractic Act. The Chiropractor Board found that Mr. Teston's treatments were "manipulations" that constitute the unauthorized practice of chiropractic and fined him $10,000.00.

The Order violates the Chiropractic Act that grants physical therapists, like Mr. Teston, an exemption from the definition of the practice of chiropractic under the Chiropractic Act. Furthermore, the Chiropractic Act is unconstitutional. As a result of these infirmities, the Order should be reversed and the Chiropractor Board's claims against Mr. Teston should be dismissed.

STATEMENT OF THE CASE

For more than twenty years, Mr. Teston has practiced as a licensed physical therapist in Arkansas. Hearing Transcript, p.77, ln 3-4.

During the period from January 22 to March 30, 2001, Mr. Teston treated Katheryn Fryar who had been referred to him for physical therapy by Dr. Robert Kennedy. Hearing Transcript, p. 77, ln. 7-11.

On May 21, 2002, over 13 months after Mr. Teston had treated her, Ms. Fryar submitted a complaint to the Chiropractor Board claiming that Mr. Teston manipulated her spine by "popping [her] cervical, thoracic and lumbar regions of the spine." A copy of Ms. Fryar's handwritten complaint is State's Exhibit 2 in the Chiropractor Board hearing transcript. Hearing Transcript, p. 232.

Mr. Teston also treated Dennis Hendrix, an investigator hired by the Chiropractor Board, who, at the direction of the Chiropractor Board, sought treatment from Mr. Teston. Hearing Transcript, p. 45, ln. 5-7. Mr. Hendrix complained that Mr. Teston had administered a chiropractic adjustment when "Mr. Teston twisted my torso creating a pop or snap." Hearing Transcript, p. 49, line 13-15.

On October 17, 2002, the Arkansas Board of Physical Therapists ("Physical Therapist Board") considered Ms. Fryar's and Mr. Hendrix's complaints and entered a Declaratory Order finding the procedure that Mr. Teston was performing on Ms. Fryar and Mr. Hendrix was "mobilization" within the scope of his profession as a physical therapist under the Physical Therapy Act. A copy of the Declaratory Order of the Physical Therapist Board is Defendant's Exhibit 1 in the Chiropractic Board hearing transcript, Hearing Transcript, p. 237, and is attached as Appendix, Tab 2.

On December 10, 2002, the Chiropractor Board received evidence, including testimony, and heard argument of counsel concerning the complaints of Ms. Fryar and Mr. Hendrix. A copy of the Notice of Hearing is the first document of State's Exhibit 1 in the Chiropractic Board hearing transcript. Hearing Transcript, p. 231.

In direct, irreconcilable contrast to the Physical Therapist Board's Declaratory Order, the Chiropractor Board found that the treatments Mr. Teston administered to Ms. Fryar and Mr. Hendrix were 'manipulations,' not 'mobilizations.' The Chiropractor Board further found that the 'manipulations' administered were treatments reserved for licensed chiropractors and physicians, and since Mr. Teston was not a licensed chiropractor or physician, he violated the Chiropractic Act.

The Chiropractor Board issued its Order adjudging Mr. Teston guilty under the Chiropractic Act of two violations of practicing chiropractic without a license and assessed a civil penalty against him in the amount of five thousand dollars for each of the violations. See Appendix, Tab 1.

On January 17, 2003, Mr. Teston appealed the Order to this Court.

SUMMARY OF ARGUMENT

The proceeding before the Chiropractor Board would appear to be an action on seemingly isolated complaints by Ms. Fryar and Mr. Hendrix, with the limited effect of determining whether Mr. Teston engaged in the unauthorized practice of chiropractic. The effect of the Order is much more expansive. It takes away from all physical therapists, not just Mr. Teston, the right to perform spinal 'mobilizations' on their patients, notwithstanding the fact that physical therapists are specifically authorized to perform 'mobilizations' under the Physical Therapy Act. Accordingly, this case involves critical issues that have broad implications in a turf war that persists between chiropractors and physical therapists who represent different, but related, professions of the healing arts.

Physical therapists, as a matter of law, are not subject to disciplinary actions by the Chiropractor Board under the Chiropractic Act when they are performing 'mobilizations' in accordance with the Physical Therapy Act. A licensed physical therapist, like Mr. Teston, is exempt, as a matter of law under A.C.A. §§ 17-81-302(3) and 17-81-303(d)(2) from application of the Chiropractic Act for performing 'mobilizations.' It was unlawful for the Chiropractor Board to issue the Order, because the Chiropractor Board ignored the exemption Mr. Teston enjoys under the law as a licensed physical therapist.

Physical therapists are entitled to administer 'mobilizations,' but not 'manipulations.' These terms, however, are not defined and distinguished in any meaningful way in the Chiropractic Act. As a result, when it comes to these treatments, Mr. Teston and other physical therapists cannot determine what treatments they are permitted and prohibited from performing. The lack of definition of and distinction between these terms makes the Chiropractic Act unconstitutional because it is vague, ambiguous, and overly broad.

The Order was unlawfully issued and constitutionally invalid. The Order should be reversed and the claims against Mr. Teston dismissed.

STANDARD OF REVIEW

On appeal from the decision of an administrative agency, the circuit court may:

reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the agency's statutory authority;

(3) Made upon unlawful procedure;

(4) Affected by other error or law;

(5) Not supported by substantial evidence of record; or

(6) Arbitrary, capricious, or characterized by abuse of discretion.

A.C.A. § 25-15-212(h).

The Arkansas Administrative Procedures Act specifically provides for challenging the Chiropractor's Board's Order on the ground that the decision violates constitutional or statutory provisions. Administrative agencies like the Chiropractor Board do not have the power to decide constitutional issues; those issues are beyond the Chiropractor Board's jurisdiction. See Lincoln v. Arkansas Public Service Commission, 313 Ark. 295, 300, 854 S.W.2d 330, 332 (1993). Accordingly, this Court considers de novo the constitutional and statutory issues presented by Mr. Teston.

ARGUMENT

1. Mr. Teston was Exempt from Prosecution under the Chiropractic Act.

To penalize Mr. Teston as a physical therapist for the unauthorized practice of chiropractic, the Chiropractor Board was required, as a matter of law, to prove each of the following three elements:

(1) Mr. Teston's treatment of Ms. Fryar and Mr. Hendrix fell within the definition of chiropractic treatment under the Chiropractic Act;

(2) Mr. Teston was not licensed to practice chiropractic; and

(3) Mr. Teston exceeded his authorized area of practice under the Physical Therapy Act (A.C.A. § 17-93-102(6)) when he treated Ms. Fryar and Mr. Hendrix.

See, A.C.A. §§ 17-81-302(3) and 17-81-303. The Chiropractor Board failed to satisfy the third essential element of its claim because the Order did not make any finding that Mr. Teston exceeded his authorized area of practice defined in A.C.A. § 17-93-102(6) of the Physical Therapy Act when he treated Ms. Fryar and Mr. Hendrix. For the Chiropractor Board to find, as it did, that Mr. Teston's treatment was a 'manipulation' was not enough. The Chiropractor Board also had the burden of proving that Mr. Teston's treatment was outside the scope of his practice area under the Physical Therapy Act, and that he was therefore not exempt from enforcement of the Chiropractic Act against him. The Chiropractor Board did not make this critical finding. Neither the Chiropractor Board's Order nor any part of the record remotely suggests that the Chiropractor Board found Mr. Teston was administering treatment beyond the scope of his authority under the Physical Therapy Act. The Chiropractor Board's failure to make this finding is fatal to its Order as a matter of law.

The exemption for physical therapists from Chiropractic Act enforcement actions is in A.C.A. § 17-81-302(3) as follows:

Nothing [in the Chiropractic Act] shall be construed to prohibit or to require a license [under the Chiropractic Act] with respect to any of the following acts:

(3) The practice of physical therapy it not being intended by this chapter to limit, restrict, enlarge, or alter the privileges and practices of any of these professions or branches of the healing arts.

The exemption for physical therapists is further identified in A.C.A. § 17-81-303(d)(2) which states:

Nothing contained in this subsection [of the Chiropractic Act] shall be construed to limit or restrict the authority of a licensed physical therapist to practice physical therapy as defined in A.C.A. § 17-93-102(6) [of the Physical Therapy Act].

A.C.A. § 17-81-303(d)(2).

The exemption created for Mr. Teston and other physical therapists in A.C.A. § 17-81-303(d)(2) is a direct reference to the provision that immediately precedes it in subsection (d)(1) that provides:

It is unlawful for any person other than a physician licensed to practice chiropractic or a physician licensed to practice medicine to perform spinal mobilizations, spinal adjustments, or spinal manipulations

While subsection section (d)(1) makes it unlawful for any person, except a licensed chiropractor or physician, to perform "spinal mobilizations," subsection (d)(2) specifically states that this prohibition shall not be construed or applied to prohibit or limit physical therapists from administering treatments they are authorized to perform under the Physical Therapy Act.

In contrast to the Chiropractic Act, the Physical Therapy Act specifically permits Mr. Teston to perform 'mobilizations.' A.C.A. § 17-93-102(6), in pertinent part, explains:

"Practice of physical therapy" means:

(B)(i) Alleviating impairments and functional limitation by designing, implementing, and modifying therapeutic intervention that include:

(c) mobilization

But then the Chiropractic Act defines 'mobilization' as the "Practice of Chiropractic" in A.C.A. § 17-81-102(6)(A) where 'spinal mobilization' is defined together with 'spinal adjustments, spinal manipulations as:

any type of pressure, force, thrust, or passive movement, singular or pluralto the spinal vertebrae or their adjacent articulations by hand or mechanical device or by other incidental adjustments, for the restoration and maintenance of health. [emphasis added]

Given the over-lap between each Act's definitions of 'mobilization,' which in the case of the Chiropractic Act is defined the same as 'spinal adjustments' and 'spinal mobilizations,' and each Act's identification of 'mobilization' as falling within their area of authorized practice, it was incumbent on the Chiropractor Board, before it penalized Mr. Teston, to prove that Mr. Teston's treatments exceeded his authority as physical therapist under the Physical Therapy Act. There is nothing in the record in this case or Order to remotely suggest that Mr. Teston exceeded his authorized practice area as a licensed physical therapist. Instead, the Chiropractor Board ignored the Physical Therapist Board's Declaratory Order and the statutory exemption granted to Mr. Teston as a physical therapist. In so doing, the Chiropractor Board unlawfully violated Mr. Teston's right to the physical therapist's exemption from prosecution under the Chiropractic Act.

In stark contrast to the Chiropractor Board's failure to find Mr. Teston exceeded his authority under the Physical Therapy Act when he treated Ms. Fryar and Mr. Hendrix, the record is replete with evidence that Mr. Teston's treatments were well within his authority under the Physical Therapy Act. Most notably, in direct reference to the scope of physical therapy practice defined in A.C.A. § 17-93-102(6), the Declaratory Order issued by the Physical Therapists Board concerning the complaints of Ms. Fryar and Mr. Hendrix, states:

4. . . . it is the conclusion of the Arkansas State Board of Physical Therapy that Michael Teston provided treatment that is within the scope of practice of an individual providing physical therapy services.

5. . . . it is the conclusion of the Arkansas State Board of Physical Therapy that Michael Teston did not treat, or undertake to treat ailments of human beings otherwise than by physical therapy and as authorized by the Arkansas Physical Therapy Act.

Hearing Transcript, p. 237. There was also live testimony at the hearing that Mr. Teston was acting within the scope of his authority as licensed physical therapist. After listening to the testimony of the Chiropractor Board's witnesses at the hearing on this matter, Mr. Seth Coulter, the Chairman of the Physical Therapist Board, testified that everything Mr. Teston did in connection with treating Ms. Fryar and Mr. Hendrix was within the scope of his practice as a physical therapist. Hearing Transcript, p.111, ln 4-9.

Dr. Nancy Reese, Professor of Physical Therapy at the University of Central Arkansas, who was also present during the entire hearing, followed the testimony of Mr. Coulter. Dr. Reese, like Mr. Coulter, testified that Mr. Teston's treatment of Ms. Fryar and Mr. Hendrix fell within the scope of physical therapy. Hearing Transcript, p.119, ln 18-21.

Perhaps the most telling testimony about not only the nature of Mr. Teston's treatment, but the implications of this proceeding on the physical therapy profession, came from Mr. Nat Grubbs. In his sworn testimony, Mr. Grubbs explained that he is a licensed physical therapist in Arkansas, not a chiropractor, and that the treatments administered by Mr. Teston are the kinds of things learned as part of an entry-level curriculum in physical therapy school. Mr. Grubbs then admitted that he administers the same kind of treatments to his patients that Mr. Teston administered to Ms. Fryar and Mr. Hendrix. Hearing Transcript, p.157, ln. 4-20 & 173, ln. 12-17.

The Declaratory Order of the Physical Therapy Board along with the foregoing testimony, especially by Mr. Grubbs, illustrates that it is quite likely that the Chiropractor Board believes the entire physical therapist community, teachers and practitioners alike, are teaching and performing treatments that the Chiropractor Board has determined are violations of Arkansas law. While this speaks volumes about the ambiguity that is addressed below, in this analysis, the question is whether the Chiropractor Board has the authority, in the first place, to conduct inquisitions against physical therapists when the Chiropractor Board does not first prove the physical therapists are acting beyond the scope of their practice area under Physical Therapy Act. The answer must be no, the Chiropractic Board has no authority.

As the Chairman of the Physical Therapy Board, succinctly explained at the hearing, "we have two boards here that have a lot of overlap." Hearing Transcript, p.105, ln. 13-14. Accordingly, the Arkansas General Assembly created an exemption in the Chiropractic Act for physical therapists, because it was sensitive to and aware of the potential over-lap of these professions and evidently wanted to protect physical therapists against charges by the Chiropractor Board for unauthorized practice of chiropractic. The General Assembly addressed this issue by limiting the Chiropractor Board from sanctioning a physical therapist for chiropractic treatments, including "spinal mobilizations, spinal adjustments or spinal manipulations," unless the Chiropractor Board also proved that the subject treatment was beyond the authority of the physical therapist to perform under the Physical Therapy Act. The Chiropractor Board cannot thumb its nose at the General Assembly's limitation, ignore the statutory exemption for physical therapists from its jurisdiction and the Declaratory Order of the Physical Therapists Board that did have jurisdiction over Mr. Teston, and pronounce a violation of the Chiropractic Act.

Mr. Teston is exempt, as a matter of law, under A.C.A. §§ 17-81-302(3) and 17-81-303(d)(2) because A.C.A. § 17-81-303 cannot be applied to "limit or restrict" what Mr. Teston is authorized to do under the Physical Therapy Act and has been found he is authorized to do under the Physical Therapist Board's Declaratory Order. If the Chiropractor Board wants to prosecute Mr. Teston, then it must first overcome the exemption granted to physical therapists by A.C.A. §§ 17-81-302(3) and 17-81-303(d)(2) and find that he was acting outside the scope of his practice area as a physical therapist. It has made no such finding. Accordingly, the Order is unlawful because it violates the exemption granted to physical therapists under A.C.A. §§ 17-81-302(3) and 17-81-303(d)(2) and should be reversed.

The Chiropractic Act's Prohibition Against a Physical Therapist Performing a 'Manipulations' is Unconstitutional because it is Impossible to Distinguish between 'Mobilizations' that Physical Therapists are Authorized to Perform and 'Manipulations' that they are Prohibited from Performing.

A statute is unconstitutional if a person of average intelligence must guess at its meaning. Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995). Mr. Teston is fined $10,000 for performing a 'manipulation' even though the Chiropractic Act limits prosecution against physical therapists for 'manipulation' which is defined in the Chiropractic Act the same as 'mobilization'. As the Chairman of Physical Therapy Board, pointed out at the hearing, there is "a lot of overlap" between the practice of chiropractic and physical therapy. Hearing Transcript, p.105, ln. 14. On one hand, the Physical Therapy Act permits a physical therapist to perform 'mobilizations.' On the other hand, the Chiropractic Act forbids 'manipulations.' Then the Chiropractic Act complicates the issue further in A.C.A. §§ 17-81-302(3) and 17-81-303(d)(2) by limiting prosecutions against physical therapists for 'manipulations,' unless the physical therapist was exceeding his authority under the Physical Therapy Act. Physical therapists, like Mr. Teston, are thus forced to guess at the meaning of a dual statutory scheme. It is therefore critical for the Chiropractic Act to identify clearly what treatments fall within the scope of the statute. It does not. Instead, the statutes that define the practice areas of physical therapists and chiropractors create total confusion concerning 'mobilizations.'

A.C.A. § 17-81-303(d)(1) of Chiropractic Act defines "spinal "mobilization" as chiropractic treatment, while A.C.A. § 17-93-102(6)(B)(c) of the Physical Therapy Act defines any "mobilization" as physical therapy.

The Physical Therapy Act defines 'mobilization' as "passive movement accomplished within normal range of motion, but excluding spinal manipulation and adjustment." The Physical Therapy Act, however, does not limit 'mobilization' to everything but 'spinal mobilization.' In fact, the inverse is true. While the General Assembly defined the practice of physical therapy as 'mobilization,' and could have excluded 'spinal mobilization' just as it did 'spinal manipulation,' the General Assembly did not. Under a fundamental principal of statutory construction, the express designation of one thing is to be construed as the exclusion of another. Gazaway v. Greene County Equalization Board, 314 Ark. 569, 575, 864 S.W.2d 233, 236 (1993). Accordingly, the Arkansas General Assembly's specific exclusion of "spinal manipulation" and the failure to exclude "spinal mobilization" must be construed under the fundamental rules of statutory construction to mean that licensed physical therapist in Arkansas are entitled to perform "spinal mobilization." In contrast to the Physical Therapy Act, however, the Chiropractic Act forbids anyone who is not licensed as a chiropractor or a physician from administering "spinal mobilization." A.C.A. §§ 17-81-102(6)(A) and 17-81-303(d)(1).

The Chiropractic Act lends little or no assistance to the task of understanding the definitions of 'mobilization' and 'manipulation.' As discussed in Point I above, the terms are defined in the Chiropractic Act to mean the same thing. The Chiropractic Act explains that the "Practice of Chiropractic" includes "spinal adjustments, spinal manipulations and spinal mobilizations," all of which are defined as:

any type of pressure, force, thrust, or passive movement, singular or plural to the spinal vertebrae or their adjacent articulations by hand or mechanical device or by other incidental adjustments, for the restoration and maintenance of health.

A.C.A. § 17-81-102(6)(A). In view of this definition, it is difficult, if not impossible, to ascertain what the Chiropractic Act defines as 'mobilization' as opposed to 'manipulation.'

Chiropractor Board member Dr. Beverly Foster perhaps sets the stage best for verifying the confusion and guesswork related to 'manipulations' that physical therapists are prohibited from performing, as opposed to 'mobilizations' that physical therapists are authorized to perform. She explains,

I know that chiropractors have been trying to describe this procedure for over 100 years amidst the rejection by the physical therapy community of this procedure.

Hearing Transcript, p. 144, ln 17-21.

Amidst the century of confusion, it is no wonder the Chiropractor Board found it necessary to call an expert witness to attempt to explain and distinguish the terms 'mobilization' and 'manipulation.' As the Chiropractor Board's expert, Dr. Edward B. Ashton, repeatedly explained: "I was asked to render an opinion as to the difference between manipulation and mobilization." Hearing Transcript, p. 72, ln 10-12; "My purpose was to delineate the words manipulation and mobilization." Hearing Transcript, p. 72, ln 23-24. The mere fact that the Chiropractor Board found it necessary to bring in an expert to explain the Chiropractic Act and its terms speaks volumes about the guesswork, vagueness, ambiguity, and down-right incomprehensibility of the definitions in the Chiropractic Act.

While the focus here is on whether the Chiropractic Act is vague and ambiguous, it is significant that any clarity that the Chiropractor Board's expert attempted to bring to the subject matter is immaterial and cannot be considered by this Court. "There is a strong consensus among the jurisdictions, amounting to a general rule, that witnesses may not give an opinion on a question of domestic law or on matters which involve questions of law." 31A Am.Jur 2d, Expert and Opinion Evidence §136 (1989). The Arkansas Supreme Court has stated that this rule extends to experts in matters of statutory construction. The Court explained,

So in ascertaining the meaning of a statute the court will not be governed or influenced by the view or opinion of any or all of the members of the legislature, or its legislative committees or any other person.

Southwest Arkansas Communications, Inc. v. Arrington, 296 Ark. 141, 146, 753 S.W.2d 267, 269 (1988) (emphasis added).

In this case, Dr. Ashton's testimony is thus not important from the standpoint of what he says about the law or whether Mr. Teston violated it, but rather demonstrates Mr. Teston's point ­ the Chiropractic Act is too poorly written for the average person to understand.

It is worth noting that Dr. Ashton not only defined statutory terms for the Chiropractor Board, but worse yet, he concluded, as an expert, based on his definitions, that Mr. Teston had performed an illegal 'manipulation' as opposed to a permitted 'mobilization.' This was the ultimate issue in this case. With regard to Mr. Teston's treatments of Ms. Fryar, Dr. Ashton stated, "I would classify that as manipulation and adjustment, moving outside the normal range of motion to achieve an audible result." Hearing Transcript, p. 66, ln. 6-8. As to Mr. Teston's treatment of Mr. Hendrix, Dr. Ashton stated, "I would call that a manipulation." Hearing Transcript, p. 67, ln. 17.

Pure and simple, when Dr. Ashton testified about 'mobilizations' that are permitted as opposed to 'manipulations' that are not, he was defining what was legal and what was not. His further testimony that Mr. Teston's treatment was a 'manipulation' was a legal conclusion that Mr. Teston had violated the Chiropractic Act. This is impermissible. It is hornbook law that an expert opinion that amounts to a legal conclusion is not admissible evidence. 31A Am.Jur.2d, Expert and Opinion Evidence §136 (1989). If there is any doubt that Dr. Ashton gave a legal conclusion in his testimony, Assistant Attorney General Kim Evans, the attorney for the Chiropractor Board, laid that doubt to rest when, in her closing arguments, she succinctly explained to the Chiropractor Board:

You need to decide whether any part of Mr. Teston's treatment protocol constituted a manipulation. That's why you're here today.

Hearing Transcript, p. 219, ln 15-16.

The problems with Dr. Ashton's expert testimony are compounded by the fact that he was not testifying about how the terms 'mobilization' and 'manipulation' are defined in Arkansas law. He admitted in his testimony that he had never even read and was completely unfamiliar with Arkansas law concerning these terms. Hearing Transcript, p. 70, ln. 22 ­ p. 71, ln. 2.

If the statutes were not already confusing enough, Dr. Ashton brings a whole new dimension to the definition of the terms 'mobilization' and 'manipulation.' He explains, that a 'manipulation' is moving "outside the para-physiological range to get an audible release to bring about the changes or to make that segment more normal." Hearing Transcript, p. 63, ln. 23 ­ p. 64, ln 2. Setting aside for the moment what it means to "move into the para-physiological range," Dr. Ashton identifies 'manipulation' as a maneuver that causes a "cracking sound" (Hearing Transcript, p.63, ln 18) and distinguishes it from 'mobilization' by a "popping sound" (Hearing Transcript, p.140, ln 20).

The problem with Dr. Ashton's definitions is that they are not the definitions in the Chiropractic Act or the Physical Therapy Act. There is no mention in either of the Acts about 'pops and crackles,' much less whether those sounds have anything to do with whether a treatment is a 'mobilization' or a 'manipulation.' In fact, neither Act makes any direct or indirect reference to any kind of joint noise.

Nevertheless, the Chiropractor Board apparently joined Dr. Ashton in using his new, uncodified definition, because throughout the hearing there are no less than twenty-five references concerning whether Mr. Teston's treatments caused a 'pop or crackle.' The new definitions of 'manipulation' and 'mobilization' were critical to the Chiropractor Board in its case against Mr. Teston, because the only evidence it had that Mr. Teston might have done something wrong was the complainants' testimony that their joints popped and snapped. The Chiropractor Board's focus on this issue is manifested best in an exchange at the hearing between the Chairman of the Chiropractor Board and Dr. Ashton; when the chairman ask,

when you manipulate a joint you get cavitation which then results in the popping sound or this noise which is based on what the Complainant has spoken of?

Hearing Transcript, p. 140, ln 13-21.

The Chiropractor Board spent so much time discussing joint noise because it was looking for some simple way to distinguish between 'mobilizations' and 'manipulations,' and resolve the confusion that, by Dr. Foster's admission, has been ongoing for 100 years. Hearing Transcript, p. 144, ln 17-24. The obvious problem with the Chiropractor Board's solution is that Mr. Teston was not on notice under the law that his fate under the Chiropractic Act was going to be dictated by whether there were noises in the joints when he performed his treatments. Similarly if "moving outside the para-physiological range" is something that physical therapists cannot do, then the law needs to tell them that. As Dr. Reese explained, "I think that's part of the confusion is that that's not a term [para-physiological range] that the physical therapy or medical literature uses." Hearing Transcript, p.130, ln 12-15. 'Para-physiological range' is certainly not a term that is used in either the Physical Therapy Act or the Chiropractic Act.

The mere fact that Chiropractic Board found it necessary to resort to experts and alternative non-statutory ways to define 'manipulations' and 'mobilization' and distinguish them illustrates that the Chiropractic Act is vague and ambiguous. Mr. Teston should not be made to suffer for treatment he performed based on definitions and distinctions that do not appear anywhere in the law. He should not be made to suffer for violation of statutes that are so confusing about what is permitted and prohibited that he is not on fair notice of his legal rights.

The United States and Arkansas Constitutions prohibit the confusing regulatory scheme confronting Mr. Teston and his physical therapist colleagues. It is a bedrock of constitutional jurisprudence that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct.126, 127, 70 L.Ed. 322 (1926). Accordingly, Arkansas courts must judge whether a statute is sufficiently precise to provide due process of law by determining if the statute fairly warns a man of average intelligence of proscribed conduct. Jordan v. State, 274 Ark. 572, 578, 626 S.W.2d 947, 950 (1982). The norm by which the Supreme Court determines whether a statute is unconstitutionally vague is whether it lacks ascertainable standards of guilt such that a person of average intelligence must necessarily guess at its meaning and differ as to its application. Dougan v. State, Id. at 402. The test regarding vagueness of a statute is whether people of common intelligence have to guess at its meaning. Newton v. State, 271 Ark. 427, 430, 609 S.W.2d 328, 330 (1980).

The Arkansas Chiropractic Practice Act that, on one hand, prohibits Mr. Teston's performance of "spinal mobilization," and the Arkansas Physical Therapy Act, on the other hand, which authorizes Mr. Teston's performance of any "mobilization," fails to place Mr. Teston on fair notice of the proscribed conduct. In Jones v. State, 333 Ark. 208, 211, 969 S.W.2d 618, 620 (1998), the Arkansas Supreme Court stated, "[t]he law must give fair warning in definite language of the prohibited act." If a statute does not give fair warning of what it proscribes or is otherwise vague, then it is unconstitutional. The Arkansas Supreme Court further stated, "a statute is void for vagueness if it is so broad that it becomes susceptible to discriminatory enforcement." Id.

The decision of the Chiropractor Board is fundamentally flawed because the Chiropractic Act is vague, ambiguous and overly broad, and therefore, unconstitutional. The Order based on the unconstitutional Chiropractic Act should be reversed.

CONCLUSION

The transcript of the Chiropractor Board's hearing in this matter reads more like an advisory committee meeting in a legislative session than an adversarial administrative proceeding. Over 230 pages of transcript in a hearing that consumed an entire day were devoted almost exclusively to trying to figure out what the General Assembly meant by the terms "mobilization" and "manipulation." The scope of Mr. Teston's physical therapy practice and that of his colleagues were weighed in a balance by members of the Chiropractor Board who, as chiropractors, are engaged in treatment for patients that overlaps and is similar to those administered by physical therapists. Not surprisingly, the Chiropractor Board staked out its territory by declaring Mr. Teston's treatment as a physical therapist was not the 'mobilization' he is permitted to perform, but instead, was 'manipulation' that invades the province of chiropractors.

As a matter of law, the exemption granted under A.C.A. §§ 17-81-302(3) and 18-81-303(d)(2) of the Chiropractic Act in cases concerning 'manipulations' and 'mobilizations' stands guard against such abusive prosecutions by the Chiropractor Board against physical therapists, but the Chiropractor Board ignored the exemption. Despite the Chiropractor Board's defiance, the exemption applies to Mr. Teston as a licensed physical therapist who was conducting himself in accordance with the Physical Therapy Act. The Order and the proceedings leading up to it were an invasion of Mr. Teston's legal right to be exempt from prosecution in this case, and was, therefore, unlawful.

Moreover, as a matter of constitutional due process, Mr. Teston was not on fair notice of what he is prohibited from doing under the Chiropractic Act. The interplay between the Chiropractic Act and the Physical Therapy Act makes it impossible for physical therapists and chiropractors or the public to distinguish between 'mobilizations' that physical therapists are permitted to perform and 'manipulations' that physical therapists are prohibited from performing. The inability of physical therapists and chiropractors to discern from the law what is permitted and what is prohibited makes the Chiropractic Act, and the Order that it is based on, unconstitutional.

The Order in this case should be reversed and the case against Mr. Teston dismissed, because the Order is unlawful under statutory exemptions in the Chiropractic Act and because the Chiropractic Act is unconstitutional.

Respectfully submitted,

GILL ELROD RAGON
OWEN & SHERMAN, P.A.
425 West Capitol Avenue, Suite 3801
Little Rock, Arkansas 72201
(501) 376-3800

By:_______________________________________

John P. Gill ABA #62007

Derrick M. Davidson ABA #90214

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing pleading was served by first class mail, postage prepaid, on the attorney of record below on the 25th day of August, 2003:

Alice Lightle, Esquire
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201

____________________________________

John P. Gill

APPENDIX

John J. Bennett, Esquire
General Counsel
American Physical Therapy Association
1111 North Fairfax Street
Fairfax, VA 22314-1488
 
Alice Lightle, Esquire
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201
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This article was posted on September 30, 2003.