McElwee v. Bureau of Prof'l & Occupational Affairs

271 A.3d 40

Maria MCELWEE, Petitioner

v.BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF VETERINARY MEDICINE, Respondent

No. 1274 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued November 15, 2021

Decided January 18, 2022

Reargument Denied March 3, 2022

James S. Turner and Betsy E. Lehrfeld, Washington, DC, for Petitioner.

Thomas M. Davis, Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY SENIOR JUDGE LEADBETTER

This case presents the novel issues of whether animal chiropractic is the practice of veterinary medicine under the Veterinary Medicine Practice Act ("Act" refers to the Veterinary Medicine Practice Act unless another law is indicated)¹ ; whether the State Board of Veterinary Medicine ("Board" refers to the State Board of Veterinary Medicine unless another board is indicated) has jurisdiction to impose discipline upon a practitioner of animal chiropractic; and whether the Board's requirement of direct supervision by a Pennsylvania licensed veterinarian to practice animal chiropractic is a violation of substantive due process.

Maria McElwee, D.C., petitions for review from the order of the Board directing her to cease and desist from the unlicensed practice of veterinary medicine; to obtain a veterinarian license or practice under the direct supervision of a licensed veterinarian if she wishes to continue to provide chiropractic care to animals; and to pay a civil penalty and costs of investigation. We affirm.

The relevant factual history² is undisputed and can be summarized as follows. Petitioner is a chiropractor licensed by the State Board of Chiropractic. Petitioner holds herself out to the public as an "animal chiropractor" and is the owner of a practice called Critter Chiropractic, which exclusively treats animals. Information on the practice's website indicates, inter alia , that the care offered "[p]romotes healing and function within your animal's body"; "[r]estores function and proper communication within the body"; and "[w]orks to restore optimal muscular strength and mobility." (Stipulation of Facts ¶ 14, Agency Record "A.R." at Item 30.³ ) The practice's website states that she is a doctor of chiropractic.

Petitioner is not a veterinarian. She received a certification in veterinary chiropractic from the International Veterinary Chiropractic Association in 2014, which has been in "full force and effect at all times relevant to these proceedings." (Stipulation of Facts ¶ 7, A.R. at Item 30.) The International Veterinary Chiropractic Association is a self-regulating organization and not a governmental regulating body. To receive her certification, Petitioner successfully completed the Options for Animals College of Animal Chiropractic program in Essentials of Animal Chiropractic, including 210 hours of classroom and clinical requirements. Options for Animals offers its course to licensed chiropractors and licensed veterinarians; it does not confer a degree and considers itself a "continuing education or postgraduate education program that confers a certificate of completion." (Final Adjudication and Order "Final A&O" at Attachment A, Proposed Adjudication and Order "Proposed A&O" at Findings of Fact "F.F." Nos. 74-75.)

Petitioner performs a "chiropractic evaluation or analyzation" of an animal, focusing on "locating subluxations and then correcting these subluxations." (Proposed A&O at F.F. No. 23.) Vertebral subluxations are "misalignment[s] of the vertebra[e][ ] or [ ] restriction[s] on the nervous system, which can be caused by either the physical, emotional, or chemical trauma of everyday life." (Proposed A&O at F.F. Nos. 55-58.) Petitioner testified that she works with the nervous system of the animal by correcting any subluxations that interfere with it. Petitioner requires that an owner seeking care for an animal fill out an intake form and provide a case history of the animal; she occasionally receives medical records or x-rays from a treating veterinarian; and she reviews any x-rays to find infusions of the spine, breaks or fractures of the spine, misalignments of the spine, or any disc space between the vertebrae.

Petitioner believes that she does not "diagnose" a vertebral subluxation, as it is her opinion that a "diagnosis" is usually for a disease. (Proposed A&O at F.F. No. 54.) After analyzing where the subluxations are, Petitioner will "make a treatment and care plan for the animal, with or without the veterinarian's input." (Proposed A&O at F.F. No. 60). To restore the vertebrae or reduce the subluxation, Petitioner performs an adjustment with her hands; usually the adjustment is the "toggle technique," which applies force to the animal. (Proposed A&O at F.F. Nos. 24 and 62.)

Petitioner does not work at any veterinary clinics or hospitals. Typically, a veterinarian is not physically present at locations where Petitioner performs services, though occasionally veterinarians are present as the owners of the animals being treated. Petitioner requires owners of animals seeking her services to have the owner's veterinarian complete a consultation form which seeks authorization for her to provide chiropractic care to the owner's animal. (A.R. at Item 33, Exhibit C-2.) All animals in her care must have a veterinarian before she will work with them. Petitioner occasionally communicates with the treating veterinarians of the animals she treats about care plans and to report her findings.

In November 2017, the Commonwealth filed an order to show cause alleging that Petitioner was subject to disciplinary action under Section 9(a) of the Act, 63 P.S. § 485.9(a), because the procedures performed in her practice constituted the unlicensed practice of veterinary medicine. Petitioner filed a reply and requested a hearing. The matter was delegated to a hearing examiner at the Pennsylvania Department of State for purposes of a hearing and to file a proposed adjudication and order. After hearing, the hearing examiner issued a proposed adjudication and order concluding that the procedures performed by Petitioner constituted the unlicensed practice of veterinary medicine. Petitioner filed a brief on exceptions, opposed by the Commonwealth. The Board reviewed the matter and on November 16, 2020, issued its final adjudication and order which is currently before the Court.

On appeal, Petitioner raises five issues, styled in her brief as a "summary of argument"⁴ :

1. Whether the Board has jurisdiction over Petitioner.

2. Whether the Board lacks authority to enforce its Rules of Professional Conduct against Petitioner.

3. Whether the General Assembly has adopted a law that regulates the practice of animal chiropractic in Pennsylvania.

4. Whether the final order issued by the Board violates Petitioner's right to substantive due process under the United States and Pennsylvania Constitutions.

5. Whether the final order will have the effect of unfairly burdening Pennsylvania consumers of animal chiropractic services, by depriving them of a choice in the care they select for their animals and causing them economic harm that is not justified by evidence-based health and safety concerns.

(Pet'r Br. at 6.)

I. The Board has Jurisdiction over Practitioners of Animal Chiropractic and Animal Chiropractic is Subject to Current Regulatory Authority

Petitioner's first and third issues, which may be treated together, concern whether her practice of animal chiropractic constitutes the practice of veterinary medicine, and whether the Board has authority to sanction her. Petitioner argues that animal chiropractic does not constitute the practice of veterinary medicine, depriving the Board of jurisdiction, and that because the General Assembly has not specifically provided for regulation of animal chiropractic, it is unregulated and not subject to the authority of the Board.

The definition of veterinary medicine included in Section 3 of the Act is as follows:

[T]hat branch of medicine which deals with the diagnosis, prognosis, treatment, administration, prescription, operation or manipulation or application of any apparatus or appliance for any disease, pain, deformity, defect, injury, wound, physical condition or mental condition requiring medication of any animal or for the prevention of or the testing for the presence of any disease.

63 P.S. § 485.3(9) (emphasis added). The "practice of veterinary medicine" is a separately defined term:

"Practice of veterinary medicine" includes, but is not limited to, the practice by any person who (i) diagnoses, treats, corrects, changes, relieves or prevents animal disease, deformity, injury or other physical, mental or dental conditions by any method or mode, including the prescription or administration of any drug, medicine, biologic, apparatus, application, anesthetic or other therapeutic or diagnostic substance or technique , ... (iv) represents himself as engaged in the practice of veterinary medicine, (v) offers, undertakes, or holds himself out as being able to diagnose [or] treat ... any animal disease, pain, injury, deformity, or physical condition , ... [or] (ix) renders advice or recommendation by any means, including the electronic transmission of data with regard to any of the above ....

63 P.S. § 485.3(10) (emphasis added).

Petitioner takes issue with whether her "identification of chiropractic vertebral subluxation" meets the definition of "diagnosis."⁵ Petitioner then cites the definition of chiropractic provided for in Section 102 of the Chiropractic Practice Act,⁶ which she contends specifically excludes elements of Petitioner's purported specialized definition of "diagnosis" under the Veterinary Practice Act.

However, resort to a dictionary definition of the word "diagnosis,"⁷ as suggested by the Board, would suggest that her examinations for subluxations and identification thereof functionally constitute diagnosis as it is commonly...