Scope Of Practice Update: Where Things Stand

Even as the APMA continues its efforts to establish a uniform scope of practice for podiatrists, battles continue over how much of the lower extremity podiatrists are allowed to treat. This author speaks to various podiatrists about scope of practice developments in Texas, South Carolina, New York and across the country.

The power of words is very apparent in the ongoing podiatric scope of practice debate. Words like “physician,” “education” and “ankle” continue to be front and center in these debates that have been taking place in state legal arenas and various publications over the last decade.

   To help facilitate a “uniform scope of practice,” the American Podiatric Medical Association (APMA) rolled out its Vision 2015 Plan. The APMA notes this is a roadmap to ensure that by 2015, “podiatrists are to be universally accepted and recognized as physicians consistent with their education, training and experience.” The plan is multifaceted and seeks to make changes in four areas: education, legislation, public relations and inter-professional relations.

   When it comes to expanding podiatry’s scope to include the ankle, momentum has been slow in recent years (see “Scope of Practice: Where Things Stand” in the May 2007 issue). The road to 2015 has had its share of obstacles, not the least of which are ongoing legislative fights in states like Texas, New York and South Carolina. Podiatrists in restrictive states keep pushing at the limited definition for their field, only to be meet with massive and well-funded resistance from medical and orthopedic associations.

   The current economic situation in the United States has also played a part in the uncertainty surrounding much of the legislation to expand upon podiatric privileges. Legislators are much more likely to focus on and pass bills that have to do with reduced spending or job growth, steering clear of potentially volatile issues.

A Closer Look At Court Decisions In Texas

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 published a broadened scope of practice for Texas podiatrists. The new scope, as the board presented it, attempted to define the foot as including “the tibia and fibula in their articulation with the talus, and all the bones to the toes, inclusive of all soft tissues ... that insert into the tibia and fibula in their articulation with the talus and all bones to the toes.”

   Both the Texas Medical Association and the Texas Orthopedic Association balked, filing suit against not just the Texas State Board of Podiatric Medical Examiners but also the Texas Podiatric Medical Association. Together with then Texas Attorney General John Cornyn, they alleged that the examiners board had acted outside its authority when it illegally attempted to change the definition of podiatry in the state.

   Although a lower court upheld the Texas State Board of Podiatric Medical Examiners’ definition, in 2008, the Texas Third District Appellate Court concluded that the board had “exceeded its authority when it promulgated the rule and that the rule is invalid.” In June 2010, the Texas Supreme Court passed on reviewing the 2008 decision, which left the 2008 ruling as the final legislative word for now. In the absence of a state Supreme Court judgment, both sides have reverted to their own takes on the 2008 ruling.

   The Texas Medical Association asserted that the decision upheld the association’s opinion that in the Texas scope of practice for podiatrists, the foot does not include the ankle or leg. The Texas Orthopedic Association posited that the court decision confirmed that the boards of “limited-license” professionals could not determine their own profession’s scope — that redefining scope of practices was solely a legislative act.

   Furthermore, David Teuscher, MD, the Texas Orthopedic Association representative, observes that the court’s decision squarely made any medical care of the ankle and leg the “practice of medicine,” and not podiatry. He noted that even podiatrists who were currently allowed to do foot and ankle surgery would now have to be limited to just the foot.

   The Texas Podiatric Medical Association planned to ask for a re-hearing but instead is trying to work directly with the Texas Orthopedic Association and Texas Medical Association to reach a middle ground. Currently, it is the Texas Podiatric Medical Association’s viewpoint that the only thing the appellate court limited was treatment to the leg and it agrees with the appellate court on this point. However, the Texas Podiatric Medical Association asserts that podiatrists still have ankle privileges in Texas.

   Richard Pollak, DPM, who practices in San Antonio, points out that the Texas State Board of Podiatric Medical Examiners decided to expand the scope of practice’s wording without notifying most practicing podiatrists in the state of Texas. However, he says, “that’s not to say we wouldn’t have supported it. We just didn’t know about it.”

   It is doubtful that a change of podiatry’s scope made by the Texas Podiatric Medical Association, a member organization, would have been any better received than the one made by the Texas State Board of Podiatric Medical Examiners, a body that consists of six governor-appointed podiatric physicians and three consumer members. The courts in Texas have made clear that any changes in laws must go through the legal system and not just be adopted into rule by an unelected administrative board.

   Regardless of which podiatric group made the initial scope expansion move, Dr. Pollak says that because of it, many podiatric privileges did increase. Noting that reform has been a 10-year process, he says many podiatrists are better trained now than they were 15 years ago.

   “As the profession has grown over the past 30 years … most podiatrists can practice within their training,” says Dr. Pollak. “Even though we’re having this quandary with the word ‘ankle,’ there are a lot of podiatrists with satisfactory training that have ankle privileges. Very few podiatrists have been negatively impacted by the (Texas) Supreme Court decision.”

Establishing A Standard Of Training

Since podiatrists in Texas are not regulated by the Texas Medical Practice Act, and are “neither licensed nor trained to practice medicine,” opponents in the Texas Medical Association and Texas Orthopedic Association maintain that podiatrists have no right to “engage in the practice of medicine.”

   Training and education have long been part of the scope of practice debate as orthopedic and medical groups continually cite the fact that podiatrists have no standard in their education or residency requirements. Many state podiatric associations, including the Iowa Podiatric Medical Society and the Ohio Podiatric Medical Association, note that “the preparatory education of most podiatrists includes four years of undergraduate work, followed by four years in an accredited podiatric medical school, followed by a two or three year hospital-based residency.”

   The problem here again hinges on one word: most. Orthopedists and MDs must attend four years of undergraduate college, then four years of medical school, an internship program and then a residency.

   “Many orthopedists and MDs do not view us as ‘real doctors,’” notes Michelle Butterworth, DPM, FACFAS, who practices in South Carolina. “They go through four years of medical school and so do we. With evaluation of our schooling, I think they would see that our education is very similar to theirs. Unfortunately, they do not understand the depth of our education and training, nor do they really want to. We are not considered ‘equal’ to them because we have a different degree. This is a primary issue in our state scope of practice battle. Since we have a DPM (degree) and not a MD (degree), our scope battle has become very ego driven and turned into a turf war.”

   Most podiatrists undergo 11 years of schooling, just like MDs and DOs. Those who pursue a Fellowship with the American College of Foot and Ankle Surgeons (ACFAS) have an extra, year-long advanced training in specializations such as advanced rearfoot reconstruction and diabetic limb salvage. This puts them on equal footing, experience-wise, with orthopedists.

   “Our profession has had their problems because not everybody has had the same training. Some had one-year residencies and some had three-year residencies,” says Dr. Butterworth. She adds that recently, “all (podiatric) residencies have converted to three years, resulting in three years of surgical training at the very least. A lot of people are doing fellowships after their residency.”

   Licensing boards are leading the change. Currently, the State Board of Podiatry in Kentucky only approves licensing for podiatrists who have attended one of seven colleges of podiatric medicine. Applicants who have graduated from the more newly established podiatry colleges — the Arizona School of Podiatric Medicine at Midwestern University in Glendale, Ariz., and the College of Podiatric Medicine at the Western University of Health Sciences in Pomona, Calif. — currently have to wait for a license while the Kentucky board evaluates their college for academic standards and requirements.

   As part of the APMA’s Vision 2015 goal, a single three year training program — the Podiatric Medicine and Surgery Residency (PMSR) for all podiatric medical school graduates — began in 2011. This will help ensure that all new podiatrists have similar skills and knowledge before they go into practice, and it is just one of several steps the APMA is taking to standardize podiatrist’s education. The burden now is to ensure that an evolution in education leads to an evolution in scope.

   While a standard of education is a necessary step toward undermining any argument against enlarging the podiatry scope of practice laws, it appears that those who currently have the necessary education and training, even in some states with narrow scope of practice definitions, are able to practice what they were trained to do anyway.

   With a nod to the inter-professional relations touted by the APMA, most podiatrists I talked to were quick to point out that most allopathic and osteopathic physicians are not their opponents. Many work in the same practice and in collaboration with orthopedists, or treat patients with the help of “friendly” doctors, such as DOs. As with anything, knowledge and familiarity can lead to a better understanding.

Why There Is Looming Uncertainty In Many States With Reforms

As Dr. Pollak explains, while podiatrists were doing ankle work at small surgical centers and smaller hospitals in Texas, when courts first upheld the law expanding the scope of practice, larger hospitals that had been conservative in what they let podiatrists do had to then give them ankle privileges. Now that the decision may have been overturned, he says these same hospitals are not sure what to do.

   In the year since the state Supreme Court decision, the Texas Podiatric Medical Association has received requests for more information regarding the podiatric scope of practice from 80 hospitals and surgical centers. The bulk of these facilities decided that podiatrists were still legally allowed to perform ankle procedures, according to the Texas Podiatric Medical Association. However, the association notes that four facilities have terminated or at least put a hold on ankle privileges for podiatrists, pending further research.

   In Abilene, Texas, two podiatrists, together with the Texas Podiatric Medical Association, filed suit against Hendrick Medical Center, asking for a judgment that the current scope of practice for podiatrists is the treatment of ailments at or below the ankle. The plaintiffs also asked the court to enjoin the hospital from denying qualified podiatrists privileges necessary to treat injuries at or below the ankle. The court issued a temporary injunction preventing the hospital from denying the podiatrists any ankle privileges they previously had while the litigation was pending. Due to another motion to dismiss filings and appeals, the case is currently undecided.

   The New York State Podiatric Medical Association, with the assistance of the APMA, came close in both 2010 and earlier this year to getting first measure S2992B and then S583 passed. The earlier measure passed the Senate but died in Assembly. This year’s version, first S583 and subsequently S3758-2011, “expands the definition of the practice of podiatry to include conditions of the ankle and all soft tissue structures of the leg below the knee anatomically affecting the foot and ankle” and further “establishes podiatrists licensed prior to the effective date of this act need to be certified to operate on the ankle.” S3758-2011 once again passed through the New York State Senate and was referred to Higher Education by the Assembly.

   It is a higher education issue because, as explained in S583, all of the podiatric schools in the U.S., including the New York College of Podiatric Medicine, teach the expanded scope of practice that the bill hoped to pass in New York state. However, because of the restrictions, podiatrists graduating from the New York College of Podiatric Medicine were increasingly choosing to practice in other, more liberal states. Thus, while enrollment at the college is steadily increasing, the number of new podiatrists starting a practice in New York is steadily decreasing.

   Charles M. Lombardi, DPM, trained in Philadelphia but chose to practice in New York. As the Director of Podiatric Medical Education and Director of Podiatry at New York Hospital Queens in New York City, he encounters scope of practice issues “daily” and definitely feels that they have restricted his practice.

Emerging Insights On Reform Efforts In South Carolina

In South Carolina, strict definitions limit DPMs to “diagnosis, medical and surgical treatment” of the foot, and the medical and orthopedic community aims to keep it that way.

   Dr. Butterworth has had a podiatric practice in South Carolina with her husband for 12 years now. She says the law is especially frustrating because she works in a rural area with limited resources for her patients. Many of her patients have limited transportation and have great difficulty traveling to see other physicians.

   “It is aggravating because I have the skills to provide treatments my patients need the majority of the time but because of our restricted state law regarding the ankle and amputations, I have to refer my patients out of their community, often times to those less qualified than myself,” she says. “Fortunately, my local physicians are very understanding with our ‘issues’ but are also frustrated with our restricted law.”

   The bill to enlarge South Carolina’s scope of practice guidelines for podiatrists has come tantalizingly close to passing the last few times. Dr. Butterworth explains that, “Last year at about this time, when the session ended, the chairman of the Medical, Military, Public and Municipal Affairs (3M) Committee was actually for our bill and wanted us to meet with orthopedists to compromise on the language and submit a bill that would pass.” The first time the meeting was scheduled, only the other side’s lobbyists showed up.

   They finally met face to face with orthopedists in October 2010 but not successfully. “Basically, they wanted things that we couldn’t give … things they knew we couldn’t accomplish,” recalls Dr. Butterworth. “We said we’d put in the bill certification or qualification in ankle surgery, even though we didn’t think it should be in the law. After all, (there’s no law that says) that orthopedists have to have credentialing in particular parts of the body.”

   Dr. Butterworth feels the hospitals, not the legislature, should decide on credentialing. “It is up to the hospital to give you credentials. We don’t want every podiatrist performing ankle surgery either. That’s not what we’re asking for.”

   The bill H.3745 was introduced on the floor of the South Carolina House of Representatives on Feb. 24, 2011 and was promptly referred back to the aforementioned 3M Committee.

   The bill seeks to amend a 1976 state law with the following mandates:
• podiatric surgery must occur in certain facilities;
• podiatric surgeons must meet certain criteria;
• certain health facilities will extend professional privileges to these podiatrists;
• health facilities must provide the right to pursue and practice full clinical and surgical privileges to podiatrists who meet certain criteria;
• facilities have an ability to limit these privileges in certain circumstances;
• health facilities are not required to offer a specific health service not otherwise offered at that facility; and
• if the facility does offer a health service, it may not discriminate among certain health professionals authorized by law to provide these services.

   With this bill, Dr. Butterworth says, “We’ve given everything we could give.”

   Acknowledging that DPMs in the state would have little to no objection to simply expanding South Carolina’s podiatric scope to include toe amputation, Dr. Butterworth says, “We don’t want to compromise because if we give in on amputation, we’ll never get the ankle. Nobody is fighting amputation law but we don’t want to pass that until we get the ankle. If we change the practice act once (for toe amputation), we’ll never get it changed again.”

   Change is still far from a given in South Carolina as the bill H.3745 has floundered once again. The 3M Committee asked for discussion from both sides but then, citing confusion, tabled the bill until next session. It is currently unclear as to when the next session will meet and what the bill might look like in yet another iteration.

Are Scope Of Practice Battles Creating A Diaspora Of Podiatrists?

One of Dr. Butterworth’s biggest fears is that, as older podiatrists start to retire, they’re not going to be replaced because “limiting laws are causing them to lose quality people” in South Carolina. Podiatrists just out of school are choosing to set up their practices in states with broad scope of practice guidelines. This is the same thing that is happening in New York and quite possibly other restrictive states such as Texas, Kansas and Massachusetts.

   As Harold W. Vogler, DPM, FACFAS, states, “restrictive state scope statutes have a tendency to discourage highly trained new podiatric physicians and surgeons from obtaining licensure in these states.” Dr. Vogler, who practices in Sarasota, Fla., admits that he has discouraged new podiatrists from going to restrictive states, citing the frustration they would encounter.

   It is a frustration that Dr. Butterworth knows all too well. When asked if she envisions the South Carolina scope of practice guidelines for podiatrists finally changing by 2015, she said she hoped so but South Carolina does things differently from other states.
“And it is not a Southern thing because all of the surrounding states have ‘ankle’ in their scope of practice,” notes Dr. Butterworth. “It is just South Carolina. South Carolina might very well be the last one” to pass a scope of practice bill.

Will The Profession Establish A Uniform Scope of Practice?

With four years left in the APMA’s Vision 2015 timeline, the pieces are falling into place to ensure reforms to the scope of practice will happen. The ideas of flexibility on a professional level and understanding on a personal level are slowly getting around.

   “A scope of practice should represent a range of care, not a baseline of care,” according to Glenn B. Gastwirth, DPM, the Executive Director of the APMA. “Not every physician in every specialty will have the requisite education and training to deliver medical and surgical care at the highest end of their scope of practice even if it is an ‘unlimited scope.’ Can or should any thoracic surgeon be allowed to perform organ transplant surgery?”

   Dr. Gastwirth believes that the podiatric scope of practice should be commensurate with the highest level of care for which a podiatrist receives training. He says the highest end of the profession’s scope must be dynamic and subject to change with the advancement in education and training.

   “These few remaining restrictive state statute scope barriers will fall in due course as there is no justification in so much as the training and credentialing standards, and practices of institutions now mandate appropriate training for all surgeons practicing medicine and surgery of the foot, ankle and leg regardless of medical degree or specialty,” comments Dr. Vogler. “This is a uniform standard that all physicians and surgeons must meet.”

   Rachel L. MacAulay is a freelance writer who lives in Matawan, N.J.