The New York Challenge

The facts concerning New York:The facts concerning New York:
  • This reflects a change of opinion that was made by the State Education Department (SED) following the State Chiropractic Board approving a DC’s ability to perform DOT physicals in New York State. In August of 2005, the Board reported to the FMCSA through the FCLB that the essential elements of a DOT exam were within the scope of practice in the state. This is followed by 10 years of precedent of acceptance of a chiropractor’s ability to perform a DOT physical exam within New York.
  • The Chiropractic Board in New York is multidisciplinary.
  • New York Boards are advisory in nature, which means that their decisions are opinions of an existing law. They have no law making authority.
  • The change of opinion by the SED was made by an attorney in the SED and not the chiropractors or other representatives of the Board.
  • A law exists within the state of New York stating that anyone listed on the National Registry of Certified Medical Examiners (NRCME) can legally perform a DOT physical within the state. There were up until June 1, 2016 47 DC’s listed on the National Registry within the State.
  • Multiple DCs from New York were added to the National Registry since May 21, 2014, including one on April 5th of 2016.
  • Greater than 30,000 exams had successfully and lawfully been performed by chiropractic Certified Medical Examiners (CMEs) in New York since May 21, 2014. All accepted as valid by the FMCSA and all 50 State DMV’s around the country. These exams were performed under the same state law that now does not allow chiropractors to perform a DOT physical in New York.
  • There is enough documentation to suspect that outside influence by elements of political medicine have lobbied for this change of opinion!
  • THERE EXISTS SIGNIFICANT DOCUMENTATION TO SUPPORT ALL OF THE ABOVE.
DISCUSSION: All seemed fine within the state until the fall of 2015 (10 years after the board had initially approved the chiropractor's ability to perform a DOT physical within the state). At that time, some, but not all of the chiropractic CMEs within the state received the following letter:

Dear Doctor:

This letter is being sent to you because you are listed as a Certified Medical Examiner under the federal registry to perform DOT exams. After lengthy discussions with the New York State Education Department, the New York State Board for Chiropractic has been informed that under our present scope of practice, Doctors of Chiropractic in New York are NOT allowed to perform DOT examinations.

The basis for this decision is based solely on scope and not competency. The decision focuses around the exam itself. It has been interpreted, by the state, that any examination performed by a chiropractor in New York is predicated on finding and correcting subluxations. Although chiropractors in New York are trained to perform a complete physical examination, our ability to examine and diagnose in New York is limited to detecting and correcting subluxations. As there are many areas to a DOT exam, it is felt that the DOT exam goes beyond the scope of chiropractic in New York. Further, even if you have been credentialed through programs that teach the DOT exam process, this does not change the defined scope of practice in New York.

Chiropractors who are currently performing DOT examinations in New York ARE PRACTICING OUT OF SCOPE AND ARE AT RISK. As a rule, malpractice carriers generally do not cover procedures that are performed outside of your scope. Changing the scope in New York would need to be done legislatively."


Please note the unusual nature of this letter. First, no letter sent to a DC in New York was signed by any member of the Board, and it was not sent to all chiropractic certified medical examiners within the state. Secondly it contains words such as” interpreted” and “may” which are not definitive and leave this opinion open to argument. It also mentions the fact that we are “competent” (interesting comment especially relating to the Connecticut case). Furthermore it is not a cease and desist notice but informational in content (chiropractors are at risk for not being covered by our malpractice insurance for example).

Whether this letter was sent in good faith so as not to bring immediate action against DC’s who had been doing DOT physicals in New York for a couple of decades to say the least, or if it related to something else, the letter was truly confusing and not definitive.

This, coupled with the unprecedented action taken by the FMCSA on June 1, 2016 to remove all chiropractic CME’s in New York without due process and possibly not following all regulatory requirements defined by the law, has led to the concern around the country that this will spread to numerous other states should the New York situation not be resolved in the professions favor. Currently 24 member DC’s of Safe Drivers have filed for an administrative hearing with the FMCSA. All options to find a remedy to this issue in New York are on the table, and we are working with the New York State Chiropractic Association regarding this, including with their efforts with scope modernization.


PETITIONING GOVERNOR ANDREW CUOMO

Please sign the petition to allow Chiropractor to continue to perform DOT Exams in New York
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