IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
LIFE UNIVERSITY, INC.
Plaintiff,
v.
THE COUNCIL ON CHIROPRACTIC
EDUCATION, INC., ET AL.
Defendants. |
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CIVIL ACTION
FILE NO. 1:03-CV-4 |
BRIEF OF AMICUS CURIAE
DOCTORS FOR EXCELLENCE
IN CHIROPRACTIC EDUCATION
I. Overview
This case presents the question of whether
this court can and should issue an emergency injunction to stop a private
school accreditation agency, the Council on Chiropractic Education (CCE),
from misusing its authority—by violating accepted accreditation standards,
not following its own rules and improperly imposing a particular
philosophy—and thereby causing irreparable damage to an institution it
regulates.
Doctors for Excellence in Chiropractic
Education (DECE http://www.dece.org/), an unincorporated association of
chiropractic doctors, who are graduates of traditional chiropractic
schools, including but not limited to Life University, answers the
question "Yes" and urges this court to grant plaintiff’s Emergency Motion
for Preliminary Injunction.
DECE maintains that the significance of
CCE’s action in not reaffirming accreditation of Life University’s
chiropractic educational program cannot be understood without grasping the
nature, breadth and depth of the clash of philosophies among chiropractic
practitioners and the degree to which CCE has improperly used its
resources to advance one side of this philosophical struggle.
Dr. Reed Phillips, president of the CCE
and a defendant in this case, described the nature of the philosophical
debate within chiropractic in the 1999 announcement of the formation of
the American Academy of Chiropractic Physicians, dedicated to moving
chiropractic closer to the practice of medical doctors. He said,
"Doctors of chiropractic, and those closely
associated with this science, realize there are at least two major
philosophies of chiropractic: straight chiropractic and health care that
incorporates a broader view of what chiropractic physicians can and
should provide their patients…The Academy’s purpose is to unite those
who embrace the latter philosophy and support their interests, concerns
and needs across the county." Exhibit 1, Hirsh Affidavit Attachment A:
American Academy of Chiropractic Physicians Created. Nov 1 1999 Vol 17
issue 23 of Dynamic Chiropractor
The announcement of the formation of the
academy said "There are some in the chiropractic profession who may
perceive the formation of the Academy as part of a movement for all
doctors of chiropractic to secure the right to prescribe drugs. According
to Dr. Phillips, that perception is simply not true." Ibid.
The announcement quotes Dr. Phillips
saying "While we support those doctors of chiropractic who can prescribe
drugs under the laws of their respective states, this is not and will not,
be an issue with the Academy. Our main focus is to promote primary care
by the chiropractic community. Today’s chiropractic physician has the
training and experience to provide primary care and needs to be recognized
for his or her capabilities in this area," and says, "membership (in the
academy) is open to all doctors and students of chiropractic as well as
osteopaths and medical doctors." Ibid.
This statement presents a contemporary
description of a division present in the chiropractic world since it began
in the 1890s. The divide is between those who want to medicalize
chiropractic and the majority of licensed chiropractors who wish
chiropractic to remain as a separate and distinct healing art, alternative
or complementary to medicine.
The primary focus of this majority of
chiropractors set out in all state laws is to maintain or restore health
and free the patient of muscular skeletal disorders by adjusting the spine
and its articulations to restore alignment. These chiropractors use
modern and sophisticated systems for diagnosis and for determining whether
their patients need referral for medical management or co-management for
their conditions. Hirsh Affidavit
The founders of chiropractic, D.D. and B.J.
Palmer, established the chiropractic field out of frustration with
medicine’s lack of interest in, and doubt about the importance of,
treating the spine to improve individual health. They set a direction
clear and distinct from medicine’s direction. At the same time, many of
the earliest chiropractors and chiropractic educators were physicians
eager to use the medical approach and philosophy with the healing
techniques of chiropractic. ibid
This debate, now persisting for over a
hundred years, is about the focus of patient care and chiropractic
education, not its quality. The chiropractic physicians, who now control
the CCE and COA, aim to move chiropractic and chiropractic education
closer to modern medicine. They want to use medicine, surgery and other
medical procedures as part of their practices even though the vast
majority of states prohibit chiropractors from utilizing these tools.
DECE contends that these chiropractic physicians have improperly used
their formal accrediting authority to establish the chiropractic medical
approach as the norm of the profession. Exhibit 2 Affidavit of Dr.
Stephen Welsh, DC.
Eight months after Dr. Phillips made his
statement, Dr. James Winterstein, then a member of the CCE board and a
founder of the Academy, set out the contemporary distinction between the
two philosophical groups by identifying one as "chiropractors" and the
other as "chiropractic physicians." "Chiropractic physicians" he said,
are primary care providers whose patients can expect "to look in their
eyes and ears; to palpate the abdomen; to listen to the heart and lungs;
to provide breast examinations; and to perform prostate examination or
gynecologic exams based upon clinical indications. They can expect this
practitioner to provide spinal manipulation (if indicated) and to provide
nutritional advice, perhaps nutritional supplementation, acupuncture and
various other therapies designed to optimize their health." Dr.
Winterstein described "chiropractors" as practitioners "who wish only to
detect and correct spinal subluxations for the purpose of optimizing human
health." Hirsh Affidavit Attachment B: Chiropractors and Chiropractic
Physicians
DECE asserts, as set out in detail below,
that from their position on the CCE board Drs. Phillips, Winterstein and
their allies improperly used the CCE’s accreditation authority in the
effort to medicalize chiropractic education and as part of this effort
they improperly failed to reaffirm accreditation of Life University’s
chiropractic education program, causing irreparable damage to the
institution, its students, alumni and the public.
DECE contends that the CCE political act of
revoking Life’s accreditation was done in contravention of CCE’s own
policies and standards, contrary to the professional standards of
accrediting bodies and as part of a series of manipulations of its own
structure, making it likely that Life will prevail on the merits when a
trial is held. The impropriety of the CCE denial of accreditation to
Life’s program and the damage it is causing makes this exactly the kind of
situation that an emergency injunction from this court can and should
correct.
A. The Role and Structure of the CCE in
the Life Accreditation Process
In 1995, when CCE last accredited Life’s
chiropractic program, CCE consisted of two components, the CCE Board of
Directors (Board) and the CCE Commission on Accreditation (COA). The COA
had nine members, five of whom were appointed by the two chiropractic
trade associations—the American Chiropractic Association and the
International Chiropractic Association. Then as now COA evaluated and
accredited chiropractic programs using the CCE standards established and
maintained by the CCE Board.
The CCE Board consisted of 25 members— 9
COA Commissioners and 16 Chief Executive Officers of the then-accredited
chiropractic programs—8 each from "chiropractor" and "chiropractic
physician" schools. On June 7, 2002, one month after finishing a complete
revision of its structure in a process that began in 1998 and ended in May
2002, CCE terminated Life’s accreditation. During this time, under the
new structure, CCE made major revisions of its Standards. Welsh Affidavit
Attachment 1
Appendix I, CCE Standards for Chiropractic
Programs and Institutions, January 2002.
Contrary to this reality the CCE argues that
the reorganization had nothing to do with its determination on Life’s
reaccredidation. CCE asserts it "does not seek to define or support any
philosophy regarding the practice of chiropractic." Defendant’s Response
To Plaintiff’s Emergency Motions For Preliminary Injunction p. 5, citing
Defendant’s Exhibit 2, Standards for Doctor of Chiropractic Programs and
Institutions (January 2002) (the 2002 Standards) at vi. CCE also argues
that during the period of restructuring, 1998 to June 2002, "the COA
continued its accreditation work…without material change" ibid. p. 40.
Nonetheless, CCE’s June 8, 2001 Site
Visitor’s Report faulted Life saying, "the mission statement of LUCC does
not state that LUCC prepares graduates to serve as ‘primary health care
clinicians.’ Nor has LUCC developed ‘relevant goals that indicate the
directions to be taken in achieving that mission.’"
Life, under pressure from CCE to shift
from straight or traditional chiropractic, adjusted its program to
accommodate both philosophies. The record shows that, for good or ill,
Life changed so that in April 2002, when the last site visit team to visit
Life before CCE denied reaffirmation of accreditation reported, the
"primary health care clinitician" problem no longer appeared as a concern.
The "primary care" requirement, a concept at the heart of the
philosophical differences within the chiropractic community, did not exist
in 1995 and it did exist in 2002. This appears to be a case of CCE
pressuring an institution toward a philosophy.
CCE states that "COA and CCE have no
philosophical test for accreditation. Institutions and programs must
accommodate their philosophies to these overriding goals (…whether
students are being equipped with the core knowledge in basic and clinical
sciences to function as competent providers of quality patient care…) in
seeking CCE accreditation and many do." Defendant’s response p. 5 and 6,
emphases added. It is somewhat disingenuous to simultaneously assert that
CCE takes no philosophical position and that programs must "accommodate
their philosophies" to CCE’s overriding goals. This is particularly so
when the overriding goals are on one side of a heated and acknowledged
debate about what constitutes proper chiropractic care. The CCE posture
becomes ominous when it argues that Life can lose accreditation for
failing to follow CCE determination of what constitutes proper patient
care and indicates that some other schools also fail to accommodate their
philosophies to CCE’s goals—"some fail" is the obverse of "many do." Such
statements immediately raise the question: who’s next?
The CCE Board establishes the "standards"
against which the COA measures a school or program. In the period that
the Board changed its structure, 1998 to June 2002, CCE had undergone
massive and, DECE contends, illegal restructuring and made major changes
to its standards.
In January of 1999, the Board approved
restructuring the CCE into three units—the COA, expanded to 11 members,
the Board, reduced to 13 members with only two chief executive officers of
the accredited programs, and the "Corporation," consisting of the 16
program CEO’s that had form-erly been on the Board. The Corporation was
vested with authority over the CCE bylaws and matters of incorporation.
Defendant’s Response p. 39
The Board continued to establish and
maintain CCE standards and the COA continued in the role of measuring
programs against the CCE standards. Only the creation of the Corporation
allowed the changes to go forward. Defendants’ Response p. 39.
In January 2002, the Board and COA called
on the Corporation to dissolve. At this point the corporation consisted
of only 14 members, since the new Board had reversed the previous policy
that had treated branch campuses as separate schools. This change shifted
the balance on the corporation to 8 "chiropractic physician" schools and 6
"chiropractor" schools. While hotly contested, this imbalance did not
shift control since by-law changes required a two-thirds majority to
become effective.
Parallel to seeking the disbanding of the
Corporation, the Board (not the Corporation) approved a resolution to
dissolve CCE as a Wisconsin entity and reincorporate it in Arizona. In
addition to transferring the entity, the bylaws were changed. The Board
took these actions at the end of March 2002 even though the Corporation,
the agency responsible for "CCE bylaws and matters of incorporation" was
not declared dissolved until May 2002. Defendants’ Response p. 39-40.
Whether by design or chance the corporate restructuring of CCE tracks the
changes in educational standards of CCE
which bring the education of chiropractors
closer to that of medical doctors. Affidavit of Dr. Stephen Welsh, D.C.
While the Corporation was "declared"
disbanded by its chair, Dr. Winterstein, in May 2002, the process was
difficult. Ibid. p. 40. There was vocal opposition. It was uncertain
whether or not a two-thirds majority was needed. The chair was absent.
As a result the process of dissolving the Corporation—the institution that
retained the original balance between the competing views of
chiropractic—took a strange turn. In the March 2002 Corporation meeting
considering dissolution, 8 votes were cast for dissolution and the meeting
ended inconclusively. Ibid p. 40. The issue of whether a two-thirds vote
was necessary was then put to a majority vote by mail to the members of
the corporation. Ibid p. 40. It is the law of both Wisconsin and Arizona
that decisions of a corporate board that are made outside of a meeting
must be made by unanimous written consent. A majority voted by mail that
a two-thirds majority was not necessary to accomplish dissolution since
dissolution did not involve a bylaws change. However, in June of 2002,
the Board met by teleconference and "enacted revisions to the CCE bylaws
reflecting the end of the ‘Corporation’s’ existence." Ibid p. 40.
The factual matters in this section are
taken from Defendants’ Response pp. 38 to 40, which in turn is based on
verification by CCE Executive Vice President Paul Walker. Defendants’
Exhibit 29.
B. The CCE and Subsequent Life
Accreditation Processes
Life worked diligently to satisfy the
requirements of CCE while preserving its philosophical position. It was
in fact successful in this effort and would have received reaffirmation of
accreditation if CCE had operated within the generally accepted standards
of accreditation.
Further evidence of Life’ progress is the
follow-up accreditation activity of two accrediting activities —one the
Southern Association of Colleges and Schools (SACS) and the other the
Chiropractic Board of the State of New Jersey. SACS, a regional
institutional accrediting agency, placed Life on probation, (it is
required by its rules to do so if a program of an institution loses
accreditation from a program accrediting agency) rather than terminating
Life’s accreditation.
In addition, the Chiropractic Board of New
Jersey sent a site visit team and conducted a through review of Life’s
chiropractic program and granted "provisional" approval to Life University
for a period of one year. New Jersey Board of Chiropractic Examiners
Letter and Report of December 5, 2002. Hirsh Affidavit Attachment C.
Together these agencies found that Life’s program satisfied their
requirements, allowing the University and its chiropractic program to
continue in an accredited status. These actins are evidence that Life
meets objective accreditation requirements and poses no hazard to the
public.
II. Argument
A. Plaintiff Meets the Preliminary
Injunction Standard
Amicus DECE supports Plaintiff Life’s
motion for an emergency preliminary injunction. As set out above, CCE
established a system for setting standards that violated the "peer" system
that is essential to voluntary accrediting agencies adopting a specific
set of standards that did not reflect the actual practices of a
substantial portion—perhaps 50%--of its intuitional members. Even in
applying the erroneously adopted standards, CCE failed to follow accepted
professional accreditation procedure. For these reasons Plaintiff is
likely to prevail on the merits, meeting the first of the four
requirements for a preliminary injunction.
Life also faces irreparable harm that is
actual, imminent and not speculative, meeting the second requirement for
the issuance of a preliminary injunction. Life has been found in default
on its bonds, it is selling real estate to maintain operations and can do
so for only a short time.
The fact the President puts a good public
face on a dire situation does not change the nature of the situation.
Life alumni who are members of amicus DECE have received detailed
briefings on the financial situation faced by Life and know it to be dire,
imminent and not speculative. Hirsh Affidavit
The irreparable harm faced by Life meets
the second requirement for the issuance of a preliminary injunction. In
addition there is no harm to CCE from a preliminary injunction, nor would
the public be harmed. In fact the loss of Life University, including the
clinics that serve the University’s community and the training of new
chiropractors, harms the public by cutting off access to needed and
desired chiropractic care.
C. Standard of Review
The failure of CCE to reaffirm Life
University’s chiropractic accreditation was arbitrary and unreasonable and
was not supported by substantial evidence. Of equal importance is the
fact that by CCE’s own information presented to this court it violated its
own rules in reorganizing its governance structure.
The machinations undertaken by CCE to
eliminate the influence of schools that train "chiropractors" as distinct
from schools that train "chiropractic physicians" does not enjoy the same
deference that an accreditation decision made by a properly organized and
operated accrediting agency would receive.
The effort ()undertaken by CCE to support
the "primary care" philosophy espoused by a number of its leaders had two
distinct negative impacts on Life that require review. First, it led to
the development of a set of "primary care" standards not shared by Life’s
view of "chiropractic." Second it removed Life and its "chiropractic"
school peers from any ability to contribute to the development of CCE
standards while leaving the "chiropractic physician" philosophy in a
position of institutional dominance.
This fact meant the fourteen members of
the CCE were no longer peers. The decisions that caused this state of
affairs do not rise to the level of accreditation decision that deserves
deference and limited review by the court.
III. CONCLUSION
For the reasons stated herein, Amicus
Curiae respectfully requests that Plaintiff’s Emergency Motion for
Preliminary Injunctive Relief be granted.
James S. Turner, Esq.
Bar No. 082479 DC
Swankin & Turner
1400 16th Street, N.W. #330, Washington, DC 20036
Tel. (202) 462-8800
Fax (202) 265-6564
Attorney for Amicus Curiae
Doctors for Excellence in
Chiropractic Education
January 31, 2003