Why NY Chiropractors Can't Perform DOT Physical Exams

There is a lot of talk and a lot of angry sentiment surrounding the Federal Motor Carrier Safety Administration’s (FMCSA) decertification of all chiropractors licensed in the state of New York. 

Chiropractors around the nation are complaining.  The Owner-Operator Independent Driver Association (OOIDA) is calling its members to bombard the Federal Motor Carrier Safety Administration (FMCSA) with phone calls, emails and letters to complain.  CMV drivers are upset.  There is a lot of misinformation and rumors floating around.  People are furious with FMCSA. 

Is their anger focused on the right organization? What is really happening?  Why are chiropractors licensed in New York decertified from the National Registry of Certified Medical Examiners (National Registry)?  Is it FMCSA’s fault? If not, then who is responsible?  Does FMCSA have a vendetta against chiropractors? 

Before getting too upset with FMCSA and before spreading the rumors, it is important that you understand the full picture. The following paragraphs answer the questions above, explain the actions of the New York Chiropractic Board and FMCSA’s response to the Board’s action. 

FMCSA and the National Registry 

To become a Medical Examiner on the National Registry of Certified Medical Examiners (National Registry) a health care provider must: 

    •    Be licensed, certified, or registered in accordance with applicable State laws and regulations to perform physical examinations 

    •    Complete required training

    •    Pass the Medical Examiner certification test

    •    Maintain certification by completing periodic training every five years and recertify by passing the ME certification exam every 10 years

FMCSA doesn’t decide whether the health care professional can perform physical examinations. The State Board that issues health care professional’s license makes the determination and calls it the “scope of practice.” 

The New York Board of Chiropractic

In New York, The Office of Professions, State Board of Chiropractic determines the scope of practice for chiropractors licensed in their state. I talked to a representative of this State Board on June 14, 2016.  According to him, chiropractors in New York were NEVER permitted to perform the type of physical examination required to determine a bus or truck driver’s physical qualification to operate a commercial motor vehicle (CMV) in interstate commerce.  So, once the Board learned that licensed chiropractors were listed on the National Registry, the Board took action.  They sent cease and desist letters to all the New York licensed chiropractors listed on the National Registry. These letters told the chiropractors to stop performing DOT examinations because it isn’t included in their scope of practice defined by the state of New York.   By working outside of their defined scope of practice, the New York chiropractors were performing the exams illegally.  

Chiropractors aren’t the only ones who must follow their Board’s determinations.  ALL medical professionals must conform to the scope of practice defined by the state board that governs them.  Even though their state may not permit something that another state allows.

Anger toward FMCSA

FMCSA cannot list practitioners whose scope doesn’t include conducting the DOT physical. So FMCSA had to decertify the New York chiropractors. Makes sense, right? What doesn’t make sense, to me, is being angry with FMCSA for the New York State Board of Chiropractic's decision. 

I think the anger toward FMCSA is misplaced. To be upset with FMCSA and to send letters, emails and make phone calls harasses the FMCSA staff who have no control over the situation.  

It isn’t FMCSA’s fault! FMCSA was complying with their own definition of Medical Examiner and the New York Board of Chiropractic Medicine’s determination. The very definition of an FMCSA Medical Examiner is “a person who is licensed, certified and/or registered, in accordance with applicable state laws to preform physical examination.”  This means the scope of practice defined by the state must include performing the the type of physical examination required by FMCSA.  In New York the scope of practice doesn’t include conducting this type of examination. The full text of FMCSA’s definition from the Code of Federal Regulations is below.

    49 CFR 390.5)

    Medical examiner means the following:

    (1) For medical examinations conducted before May 21, 2014, a person who         is licensed, certified, and/or registered, in accordance with applicable State         laws and regulations, to perform physical examinations. The term includes         but is not limited to, doctors of medicine, doctors of osteopathy, physician         assistants, advanced practice nurses, and doctors of chiropractic.

    (2) For medical examinations conducted on and after May 21, 2014, an         individual certified by FMCSA and listed on the National Registry of Certified         Medical Examiners in accordance with subpart D of this part. 

Since this means that the person performing the physical examination must be permitted by the  scope of practice to do the examination. Is it FMCSA’s fault the chiropractors are removed form the National Registry?  NO.  Does this demonstrate that FMCSA had a vendetta against chiropractors?  Absolutely not.

There is a questions to ask now, however— Why were the New York chiropractors ever permitted to be on the National Registry, if their scope of practice forbade them conducting the DOT examinations?  And what about the CMV drivers who had examinations performed by the chiropractors before they were removed from the National Registry? Are those driverexaminations valid?

If you want to contact FMCSA write or email about the two questions above. If you want to get involved in the New York State Board of Chiropractic decision making, you should write to them about their decision. 

The pros and cons of the diabetes rule making

On June 27th I talked with Dr Randy Rosarian,  Allen and Donna Smith on Allen’s Radio Blog show Ask the Trucker. We talked about the diabetes  why use of insulin is important when considering whether someone is safe to operate a CMV.  We discussed  the pros and cons of the proposed diabetes rule.  We had questions about why the FMCSA did not notify the Medical Examiners on the National Registry  about the Notice  of this upcoming rule.

FMCSA published a Notice of Proposed Rule Making (NPRM) “Qualifications of Drivers; Diabetes Standard

In short, the Agency is giving the driver’s treating clinician the authority to make the decision about whether a driver can operate a CMV in interstate commerce. Of course, this isn’t spelled out but is implicit in the rule’s language. If you read the proposal carefully you will see that the only requirement is a report from the treating clinician stating the driver is managing the diabetes well and hasn’t had any serious hypoglycemic events in the last year. This, despite the National Registry of Certified Medical Examiners that requires MEs to be trained, tested and certified on the National Registry before doing a driver’s medical examination.