Scope Of Practice: Where Things Stand

Author(s): 
By Robert J. Smith, Contributing Editor

Ambiguity and inconsistency seem to reign when it comes to the podiatric scope of practice in different states. This author consults leading DPMs in the legal battles over podiatric scope of practice and whether a uniform national scope of practice can be a viable solution. You are visiting family in Sumter, S.C., and, as usually happens at such get-togethers, a backyard basketball game breaks out. It is late in the game and your team is down by one. You notice a clear lane to the basket and go in for the layup. Of course, you are not as spry as you once were. By the time you are in the air hurtling toward the basket, that weasel cousin Marty bumps you and sends you sprawling, causing you to land awkwardly on your ankle. The accompanying pain leads you to believe you have broken your ankle. As expected, Marty insists it was a clean block and clearly feels no remorse.    You want to be treated by a podiatrist but this is a problem in South Carolina. While podiatrists can diagnose ankle injuries and disorders, their state law prohibits them from performing ankle surgery.    As you writhe on the backyard court, someone produces a map and the family ponders your fate. You could take the Myrtle Beach Highway to I-95 North and head up to North Carolina where a podiatrist could treat your ankle and its related soft tissue structures. However, podiatrists in this state cannot perform surgical procedures for the ankle unless you are “in a hospital licensed under Article 5 of Chapter 131E of the General Statutes or in a multispecialty ambulatory surgical facility that is not a licensed office setting, and that is licensed under Part D of Article 6 of Chapter 131E of the General Statutes” (according to North Carolina General Statute 90-202.2).    Conversely, you could hop on 521 South and take I-95 down to Georgia, where podiatrists can perform surgery on your ankle provided that general anesthesia (if needed) is “administered under the direction of a duly licensed physician” (according to Georgia state law—Title 43, Chapter 35).

An Example Of Ambiguity: Scope Of Practice In South Carolina

Such border conflicts are made possible by the lack of uniformity in the scope of podiatric practice from state to state. This, in turn, affects any number of issues from the education and training of podiatry residents to insurance regulations and billing once those residents graduate and start practicing. However, the ultimate losers might just be the patients who depend on DPMs for their foot care.    Excessively limiting scope-of-practice laws drive a podiatrist like Michelle Butterworth, DPM, up the proverbial wall. She is the President of the South Carolina Podiatric Medicine Association and a tireless combatant in the scope wars between South Carolina podiatrists and their opponents in orthopedics and other fields.    “South Carolina is one of the most restrictive states in the nation,” she notes from her clinic in Kingstree, S.C. “We cannot perform ankle surgery nor can we perform multiple digital amputations, according to our state law.”    The reasons behind the limited scope simply do not add up to Dr. Butterworth. “An amputation is technically not that difficult to do compared to some of the other reconstructive surgeries we do,” she says. “It is a little frustrating that we cannot do something relatively simple like an amputation but we are able to do a major foot reconstruction. It does not make sense.”    Dr. Butterworth has seen her share of political wrangling in the South Carolina state government over scope of practice, coming tantalizingly close in 2006 to broadening allowable procedures for podiatrists.    “The bill we submitted last year would have allowed us to do both partial foot amputations and ankle surgery,” she explains. “It actually got approved in the state House but was defeated by the Senate. Unfortunately, our bill and all of our hard work were defeated by a Senate subcommittee of only three people.”    While Dr. Butterworth vows to submit the same bill in the current legislative session with the hope of success this time out, she understands only too well the political obstacles in her way and how the mathematics of representation do not favor her cause.    “Unfortunately, with our laws as restrictive as they are, a lot of podiatrists do not want to practice in South Carolina because they cannot do everything they have been trained to do,” she admits. “South Carolina does not have a lot of podiatrists. We do not have a big membership and when you do not have a big membership, you do not have a lot of money to spend on legislative activities to have a louder voice in policy discussions. As everyone knows, politics and money go hand in hand, and when you do not have the bucks to spend on lobbyists and things to promote your cause, it makes it very difficult.”

A Guide To Recent Legal Battles Over Scope Of Practice

Another state that has seen its share of podiatry-related legislative fights is Texas. Most notably, in August 2005, the 345th Texas Judicial District Court upheld the opinion of the Texas State Board of Podiatric Medical Examiners, including the ankle in the definition of the “foot” used by medical practitioners. That definition was contested by the Texas Orthopedic Association and the Texas Medical Association, which argued that podiatric treatment should be confined to the foot and not to the ankle or anywhere else in the anatomy. Appellate and legislative skirmishes resulting from this decision occur to this day.    One of those affected by the decision (and most vocal about the importance of a broader definition of podiatric care) is Richard Pollak, DPM, who is based in San Antonio. Dr. Pollak has heard all the opposing voices in the fray but says podiatrists have the upper hand — for now.    “We have the law on our side,” he explains. “The law in Texas states that we as podiatrists can perform surgery on the ankle. The foot and ankle orthopedists’ position is, ‘What happens if we are successful in our lawsuit and we reverse that law? Then we have to de-credential you. That will not look good on your credentials when you apply to various hospitals.’”    Such a threat makes little sense to Dr. Pollak and neither does the reasoning behind his opponents’ position.    “They claim there is not adequate training for podiatrists to handle foot operations,” he notes. “Another reason is that podiatrists cannot handle any complications, meaning if one had a problem with an ankle arthrodesis and the ankle became infected and the infection went up the leg, the podiatrist cannot go up the leg and do a below-the-knee amputation. That is one of their big arguments, namely that we cannot handle the complications if the complications go superior, if you will, to the location of the ankle.”    Dr. Pollak compares the situation to abortion laws. If abortion is ever outlawed, he says doctors who performed abortions while they were legal would not face legal or professional consequences.    “If an orthopedist did a total hip procedure and he cuts the femoral artery and is not able to stop it from bleeding, he might call in a vascular surgeon,” he continues. “If a podiatrist does an Achilles tendon lengthening and somehow there is a mistake—say it tears further up above the level of the ankle—is the podiatrist equipped to go above the level of the ankle? The answer, once again, is that you call in someone else, a foot and ankle orthopedist, for example.    “Then their response to that is: ‘We do not want to be around just to handle all your junk, your complications.’ I think that is a poor argument.”    In South Carolina, podiatrists practice within a restricted scope but they are fighting through legislation to expand that scope. In Texas, they practice under an expanded scope that includes the ankle but are beset with legal challenges. In other parts of the country, podiatrists must fend off similar legal disputes and legislative encroachments.    In 2006, Florida — with its plethora of medical colleges — was the battleground for a skirmish over state House Bill 575, which sought to amend the definition of “practice of podiatric medicine” from its current scope (extending to the tibial tubercle) to a more restricted area (stopping at the ankle). The bill would have also limited optional Medicaid services reimbursements for certain podiatric procedures. The efforts of the Florida Podiatric Medical Association and other DPMs in the area were reportedly crucial in the defeat of the bill, which died in committee.

Weighing The Pros And Cons Of A Uniform Scope Of Practice

Do podiatrists really need to spend so much time and energy in court or in state legislatures? Is there not an alternative to individual, state-specific scopes of practice that will enable DPMs to use their training and talents to meet the needs of their patients?    Wouldn’t it make more sense to have a uniform scope of practice by which podiatrists in all states could be bound? Such uniformity might at least forge some semblance of consistency but how does one go about it? The idea of a national scope of practice is floated from time to time but such a mandate is reportedly unlikely for a number of reasons.    In an exclusive statement to Podiatry Today, the American Podiatric Medical Association (APMA) Board of Trustees gives a pointed reason why a national scope will never happen.    “The creation of a ‘national scope of practice’ in any medical discipline is unprecedented,” the board responds. “The federal government does not regulate the practice of medicine. A ‘national scope of practice’ would require a major paradigm shift from the current regulation and control of physicians. This might be almost impossible to achieve.    “A ‘uniform scope of practice’ is very different. If this were to be created by the profession, each state legislature would then have to replace its current language with the new proposed scope of practice.    “Clearly,” the board continues, “if there was a uniform scope of practice throughout the United States, podiatric physicians would have the opportunity to provide the same scope of care to their patients.”    Consistency is a common refrain when the topic of scope of practice is brought up with podiatrists.    “Anytime you can have consistency, it helps the podiatrist and the patients,” says Hal Ornstein, DPM, who practices in New Jersey, a state with a liberal scope of practice, according to Dr. Ornstein. “Think about training. Why should I waste my time being trained past my residency if I cannot use it? That does not mean that I should not be trained in something if I am not going to use it but why put all that focus into it?”    The APMA Board of Trustees concurs. “The issue,” the board notes in its statement, “is simply that if a podiatric physician has the education, training and experience to provide specific medical or surgical care, he or she should have the right to do what is medically necessary for the patient.”    “It seems to me the general public would think that when podiatrists graduate from three-year program, there would be some standard competency across the country,” says Dr. Pollak. “And I guess on a piece of paper, it looks like they all got the same training but, in reality, they did not. That has hurt our profession. Some of the weaker programs are graduating weak, poorly trained podiatrists and that is unfortunately how we are judged.”

Emphasizing Public Outreach And Education

Dr. Butterworth agrees that any push toward a uniform scope of practice, or even an expansion of South Carolina’s restrictive scope, would have to include public outreach and education.    “We need to educate the public and explain that we are not asking for anything we have not been trained to do,” she explains. “We have not done a great job as a profession in educating the public in what exactly we do as podiatrists. They do not understand what our medical and surgical capabilities are. I think the state law should provide podiatric physicians with the latitude to perform surgical procedures we have been trained to do. The hospitals can then decide whether individual podiatric surgeons have the credentials to perform specific procedures. Credentialing needs to be regulated by hospitals, not by state laws.”    Ultimately, however, patients are the ones who suffer most from inconsistent or restrictive scopes of practice. This is particularly the case in rural areas, such as the one in which Dr. Butterworth practices.    “My husband and I are the only podiatrists in a 40-mile radius,” she says. “When we have patients who need care we cannot provide because of the law, those patients suffer because they have to be sent somewhere else. Sometimes they do not have transportation to get to another doctor. We have brought that up in our legislative efforts, the fact that restrictions are hurting the patients. They need the care. These are not economic issues. We want to provide the care we have been trained to provide to benefit our patients.”

What Does The Future Hold?

For the immediate future, it appears as though inconsistencies in scope of practice among all states will continue as will legal and legislative challenges to the podiatric scope of practice in states where well-funded opposition groups fight for more restrictions. Positive change for podiatrists will not come easily.    “The hurdles to developing either a ‘national scope of practice’ or a ‘uniform scope of practice’ are high,” the APMA Board of Trustees notes. “Most assuredly, it would be easier to recommend changes in the scope of practice if there was acceptance by the allopathic and osteopathic medical communities. Even with the support of the medical community, this would require significant legislative action.”    This would, the board notes, require a significant shift. “A ‘uniform scope of practice’ is possible but it would take many years for each state to accept this type of change … If change is to come, it will have to come from the entire profession. The APMA is the leading voice for the profession and the APMA will have to direct recommendations.”    Most DPMs would agree fewer restrictions are better for all involved parties.    “The ankle is connected to the foot,” says Dr. Ornstein. “A lot of times you are treating a foot problem and the problem extends into the ankle. Why is that a gray area? The one who loses there is the patient.” Mr. Smith is a freelance writer who lives in Cleona, Pa.

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