Commissioner of Insurance
Request for an Official Interpretation of O.C.G.A. § 43-9-16(b).
You have asked for my official opinion, originally requested by your predecessor, as to whether O.C.G.A. § 43-9-16(b) authorizes chiropractors to use, recommend, and sell certain devices as part of the practice of chiropractic. The specific language that serves as the basis of your inquiry was added by amendment in 1993 and provides:
Chiropractors who have complied with this chapter may utilize and recommend hot and cold packs and nonprescription, over-the-counter structural supports for the articulations of the human body which are commonly available through retail pharmacy outlets; provided, however, the same shall not be construed to allow chiropractors to treat patients outside the scope of practice of chiropractic as set forth in this chapter.
O.C.G.A. § 43-9-16(b).
You have identified two competing views as to how the language of this Subsection is currently being construed. One view is that the language contained in this amendment permits chiropractors to use, recommend and sell hot and cold packs and non-prescription, over-the-counter structural supports commonly available through retail pharmacies. The other view is that language contained in this amendment is restrictive in that
utilizing and recommending of hot and cold packs as well as structural supports falls outside the scope of chiropractic practice. You have asked for a clarification to determine which of these views is correct.
The cardinal rule of statutory construction is to determine the legislative intent in enacting the statute and to follow that intent in arriving at the proper interpretation. O.C.G.A. § 1-3-1(a); Smith v. Cofer, 243 Ga. 530 (1979). It is apparent that the General Assembly sought to vest chiropractors with express authority to use and recommend hot and cold packs and non-prescription over-the-counter structural supports within the scope of what is permissible practice of chiropractic as defined in O.C.G.A. §§ 43-9-1(2) and 43-9-16. The language "the same shall not be construed to allow chiropractors to treat patients outside the scope of practice as set forth in this chapter" merely serves as a limitation restricting a chiropractor's use of these devices to an activity related to the definition of this practice.
With no language in this Subsection which would prohibit chiropractors from offering these items for sale, it appears members of this profession are permitted to do so. This conclusion is consistent with Foster v. Georgia Bd. of Chiropractic Examiners, 257 Ga. 409 (1987). In Foster, the court held that chiropractors could not dispense or sell vitamins to their patients because the use of these such nutritional substances to treat patients' ailments would be outside the scope of authorized chiropractic practice. 257 Ga. at 418.
Without having the ability to examine this practice on a case by case basis, it appears that a chiropractor's actions in this regard would be permissible by implied authority if the devices are offered as an extension of the treatment being provided to a patient. Thus, offering these items for sale would not be deemed to be outside of the permissible scope of practice of chiropractic.
For these reasons, it is my official opinion that using, recommending, and offering for sale hot and cold packs, and non-prescription over-the-counter structural supports commonly available through retail pharmacies is within the scope of practice of chiropractors in the State of Georgia.
Assistant Attorney General