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Could A Recent ‘Emergency Resolution’ From AOFAS Sabotage Progress With Podiatry Scope Of Practice Efforts?

“I’m as mad as hell and I’m not going to take this anymore!” - Peter Finch as Howard Beale in the 1976 movie Network. 

The aforementioned scene comes to mind when I recall learning that a so-called “emergency resolution” was to be introduced by the American Orthopedic Foot and Ankle Society (AOFAS) at the American Medical Association (AMA) House of Delegates (HOD). 

The impetus of the resolution, titled “State Board Scope of Practice Expansion Beyond Statute," was inspired by a rule put into motion by the Ohio State Medical Board in the summer of 2019.

It took yeomen's work by the Ohio Foot and Ankle Medical Association (OHFAMA) to expand the state's podiatry scope to include supramalleolar osteotomies and the harvesting of bone marrow aspirate from the proximal tibia. An Ohio foot and ankle orthopedic surgeon, a new member to the Ohio Medical Board who missed the meeting including the original decision, asked for reconsideration at the next meeting. He fought rigorously against the expansions and built his argument on the idea that statutes trump rules and rules must comply with statutes. His effort failed to have the original decision overturned. The Ohio Medical Board voted on the motion to reconsider the ruling by a vote of ten “nos,” one “yes,” and one abstention. The effort put forth by the OHFAMA Board and their executive director cannot be overstated. It was a model display of unity and state advocacy.

Ohio Statute 4731:51 states, “The medical, mechanical, and surgical treatment of ailments of the foot, the muscles and tendons of the leg governing the functions of the foot; and superficial lesions of the hand other than those associated with trauma. Podiatrists are permitted the use of such preparations, medicines, and drugs as may be necessary for the treatment of such ailments.”
 
In 1997, the Ohio Medical Board defined the term "foot" by promulgating rule 4731-20-01. “"Foot," as used in section 4731.51 of the revised code, means the terminal appendage of the lower extremity and includes the ankle joint which consists of the tibial plafond, its posterolateral border (posterior malleolus), the medial malleolus, distal fibula (lateral malleolus) and the talus.”
 
The debate included references to Connecticut and Texas statutes, citing attempts by the podiatric medical boards in those states to interpret the ankle as part of the foot, and they were defeated. The statute in Connecticut was changed but statutes in both Texas and Connecticut restrict podiatric physicians and are not favorable to practice podiatry to the breadth of one’s training or competence.
 
“When someone shows you who they are, believe them the first time.” – Maya Angelou

Was The 2018 Task Force A Mirage?
 
The American Podiatric Medical Association (APMA), the American College of Foot and Ankle Surgeons (ACFAS), the American Association of Orthopedic Surgeons (AAOS) and AOFAS formed a joint task force in 2018 under the auspice of addressing mutual concerns and priorities via the enactment of federal and state policy initiatives. According to the APMA’s website, the task force also planned “to examine the education and training of graduates from colleges of podiatric medicine with the goal of consensus on options for education, training, and certification.”1
 
When these groups joined in this task force, I was cautiously optimistic. The research and journal impact factor ratings of peer-reviewed foot and ankle publications over at least the last five years revealed that damage was indeed being incurred by the podiatric profession, intentionally or unintentionally. 

Two recent studies, one on total ankle arthroplasty and ankle arthrodesis and another on ankle fracture data sets, required significant funding related to obtaining data and funding statistical analysis.2,3 I wonder from time to time who bankrolled that data mining and statistical analysis. 

While the podiatry/orthopedics relationship seems to be trending closer toward one of equality and, in many instances, even camaraderie, there remains a relatively small but determined population of orthopedic surgeons who take great pains to systemically subjugate podiatrists and stymie the advancement of podiatry altogether.

Throughout the country, a notable number of podiatric residents find themselves navigating programs within which orthopedic surgeons outright refuse to participate in their training.

In Boston, New York City and in parts of Texas, established podiatrists recently faced combative efforts taken by their orthopedic peers, primarily foot and ankle specialists, to minimize their hospital privileges and restrict the scope within which they can practice.

Until those who actively seek to oppress or reverse podiatry's advancement age out of practice, podiatrists will remain in a defensive, albeit familiar position. It is time for the profession to go on the offensive. 

“You may not control all the events that happen to you, but you can decide not to be reduced by them.” – Maya Angelou
 
In late November 2019, a member of an AOFAS taskforce introduced a resolution to the AMA HOD, wholly unbeknownst to his podiatric taskforce counterparts. Two of the three resolves included in the resolution directly related to the Ohio ruling and the AMA Resolutions Committee struck these portions. The third resolve was the only one remaining in the resolution that passed: “RESOLVED, That our AMA consider all available legal, regulatory, and legislative options to overturn other state board decisions that increase non-physician health care provider scope of practice beyond legislative statute or regulation (Directive to Take Action).”

The body of the resolution cites precedent defining the foot and ankle as separate anatomical structures, referencing the Connecticut Supreme Court and the Texas Appellate Court rulings against their state podiatry boards’ attempts to increase scope of practice by defining foot as including the ankle.4,5

The resolve is a directive for the AMA to take action on matters of scope of practice for podiatric physicians. An impetus for the resolution was likely the response of the Ohio Medical Board to a written inquiry from an Ohio licensed podiatrist about supramalleolar osteotomies and bone marrow aspirations from the proximal tibia. However, it may not have been the sole inspiration.

What The Federal Trade Commission Says About The Podiatry Scope Of Practice In Massachusetts

On November 13, 2019 (just prior to the AMA HOD activity), the Federal Trade Commission (FTC) provided commentary in support of the potential expansion of a Massachusetts law that would add ankle privileges to the podiatric scope of practice. 

The FTC concluded that: "Absent evidence of demonstrable health or safety risks associated with a clarification of podiatrists' scope of practice in Massachusetts to include the ankle and lower leg, FTC staff supports the procompetitive goals of the proposed legislation and recommends that the Massachusetts General Court consider the potential competitive advantages for Massachusetts health care consumers.”6

The support of the FTC was not only a meaningful victory for the Massachusetts Foot and Ankle Society, but for the podiatric profession at large. This may have played a role in AOFAS’s decision to put forth the aforementioned resolution as an "emergency."

Is The AOFAS Trying To Curtail The Overall Scope Of Practice For DPMs? 

Given the events and actions above, it appears to me that the AOFAS's strategy for limiting podiatry scope of practice may be as follows:

  1. Reaffirm statute supersedes rule. Statute is state law and rules are passed by medical boards. So the argument may be that it takes a change of law to change scope of practice, not a medical board decision.
  2. Scope of practice changes would require legislative policy changes as opposed to a state medical board implementing a rule change.
  3. Scope of practice is being boxed-in based on definitions for licensing used by many states with terms such as “foot” and narrowed definitions of “ankle,” putting several commonly performed procedures by podiatric physicians at risk per the Connecticut and Texas statutes.
  4. There is a potential to roll back ankle privilege rules being superseded by state statute, compelling legislative battles to reestablish these privileges.

“I’ve learned that you shouldn’t go through life with a catcher’s mitt on both hands; you need to be able to throw something back.” – Maya Angelou

In Conclusion
 
As the APMA constructs its overall plan of action, podiatrists throughout the country must proceed with utmost diligence in monitoring their own states and standing. We need to be at the ready with a unified voice and steadfast determination to protect out scope of practice laws at the state and local levels so we are able to practice to the full scope of their education, training and experience. 

The task force continues to meet and APMA and ACFAS representatives have clearly communicated their concerns related to the resolution to representatives of AOFAS and AAOS.
 
“You may encounter many defeats, but you must not be defeated. In fact, it may be necessary to encounter the defeats, so you can know who you are, what you can rise from, how you can still come out of it.” – Maya Angelou
 
In the interim, the APMA and ACFAS task force members will continue to apply their efforts with an unflinching focus on obtaining equivalency for podiatrists across America. Open and honest discussions with AAOS and AOFAS on the exact route towards equivalency will speak volumes about the future of the task force.

Podiatry hasn’t come this far to allow professional discrimination by a slim minority who are threatened by our advancement. Turf wars should not supersede patient choice of qualified providers or, as the FTC said, “Allowing health care professionals to provide additional services that are within the scope of their training should yield procompetitive benefits for Massachusetts’s health care consumers, which may include lower costs, shorter wait times for appointments, and increased access to lower leg health care across the state.”
 
As a collective, we’ll plan for the best but we’ll be ready for anything …

“The art of war teaches us to rely not on the likelihood of the enemy's not coming, but on our own readiness to receive him; not on the chance of his not attacking, but rather on the fact that we have made our position unassailable.” – Sun Tzu

References

  1. APMA Hosts Joint Meeting with AAOS, ACFAS, AOFAS. Available at: https://www.apma.org/News/NewsDetail.cfm?ItemNumber=33015 . Published March 4, 2019. Accessed December 17, 2019.
  2. Chan JJ, Chan JC, Poeran J, Zubizarreta N, Mazmudar M, Vulcano E. Surgeon type and outcomes after inpatient ankle arthrodesis and total ankle arthroplasty: A retrospective cohort study using the Nationwide Premier Healthcare Claims Database. J Bone Joint Surg. 2019;101(2):127-135.
  3. Chan JY, Truntzer JN, Gardner MJ, Bishop JA. Lower complication rate following ankle fracture fixation by orthopaedic surgeons versus podiatrists. Foot Ankle Orthop. 2017;2(3):2473011417S000031.
  4. Supreme Court of Connecticut. State Medical Society v. Board of Exam. in Podiatry. Available at:  https://casetext.com/case/state-medical-society-v-board-of-exam-in-podiatry. Accessed December 17. 2019.
  5. Court of Appeals of Texas, Austin. Texas Orthopaedic Association v. Texas State Board of Podiatric Medical Examiners. Available at: https://caselaw.findlaw.com/tx-court-of-appeals/1307282.html. Accessed December 17, 2019.
  6. FTC Submits Comment in Favor of Massachusetts House Bill 1869, which would Expand Scope of Practice For Podiatrists. Available at: https://www.ftc.gov/news-events/press-releases/2019/11/ftc-submits-comment-favor-massachusetts-house-bill-1869-which . Published November 14, 2019. Accessed December 17, 2019.
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