BILL ANALYSIS



S.B. 718
By: Moncrief, Armbrister (Uher)
05-18-95
Committee Report (Amended)


BACKGROUND

In 1992, the Sunset Commission reviewed the Texas Board of
Chiropractic Examiners (board), and reported on problems the board
had with certain provisions, especially the review and readoption
of rules. In 1995, at a joint hearing on the board's progress
toward addressing issues raised by the Sunset Commission in 1992,
board members and the attorney general's office testified that
legislative intent regarding scope of practice was unclear.  Other
testimony indicated problems with enforcement and the extent of the
board's authority.

PURPOSE

As proposed, S.B. 718 would require a person regarded as practicing
chiropractic to use non-surgical, non-incisive procedures to
improve the subluxation complex or biomechanics of the
musculoskeletal system; create an advisory commission to the Texas
Board of Chiropractic Examiners (board); limit the membership of
the enforcement committee appointed by the board; and require the
board to keep an information file for complaints filed with the
board and referred to the enforcement committee.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill grants additional
rulemaking authority to the Texas Board of Chiropractic Examiners
under SECTION 3 (Section 4(c), Chapter 94, Acts of the 51st
Legislature, Regular Session, 1949 (Article 4512b, V.T.C.S.);
SECTION 6 (Sec. 13b, Chapter 94, Acts of the 51st Legislature,
Regular Session, 1949 (Article 4512b, V.T.C.S.); SECTION 8 (Sec.
14c.1., Chapter 94, Acts of the 51st Legislature, Regular Session,
1949 (Article 4512b, V.T.C.S.)); and SECTION 10.

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 1, Chapter 94, Acts of the 51st
Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
Civil Statutes), as follows:

     (a) Amends the description of scope of practice of
     chiropractic, by (2) stating that a person shall be regarded
     as practicing chiropractic if the person performs non-surgical, non-incisive procedures, including adjustment and
     manipulation, in order to improve the subluxation complex or
     the biomechanics of the musculoskeletal system. Subdivision
     (3) clarifies that the term chiropractic physician may only be
     used for billing purposes and may not be used for advertising.

     (b) Subsection added prohibiting the practice of chiropractic
     from being construed to include incisive or surgical
     procedures or the prescribing of controlled substances or
     dangerous drugs.

     (c) New subsection defines "incisive procedure."

SECTION 2.  Amends Section 3(h), Chapter 94, Acts of the 51st
Legislature, Regular Session, 1949 (Article 4512b, V.T.C.S.) to add
the requirement that the president of the Board be a doctor of
chiropractic; adds a provision prohibiting a board member from
serving more than two terms.

SECTION 3.  Amends Section 4(c), Chapter 94, Acts of the 51st
Legislature, Regular Session, 1949 (Article 4512b, V.T.C.S.) to
require the Texas Board of Chiropractic Examiners to adopt rules
for regulation and enforcement of this Act. Deletes text requiring
the board to adopt guidelines for educational preparation for the
practice of chiropractic, and text prohibiting the board from
adopting rules relating to the meaning of the practice of
chiropractic, with exceptions.

Also adds text requiring the board to issue all opinions based on
a vote of the majority of the board, and states that the issuance
of a disciplinary action or disciplinary order of the board is not
limited by this subsection.

SECTION 4.  Amends Section 5a, Chapter 94, Acts of the 51st
Legislature, Regular Session, 1949 (Article 4512b, V.T.C.S.) by
adding Subsection (c) to provide that a person in violation of this
section commits an offense classified as a Class A misdemeanor, or,
if the person was previously convicted under this section, a felony
of the third degree.  Provides that each day of violation
constitutes a separate offense.

SECTION 5. Amends Chapter 94, Acts of the 51st Legislature, Regular
Session, 1949 (Article 4512b, V.T.C.S.) by adding Section 12b, as
follows:

     Sec. 12b.  (a) Creates the advisory commission (commission) to
     the board.
     Requires the advisory commission to advise the Board on
     scientific and technical matters that are within the
     definition of chiropractic.
     
           (b) Sets forth the composition of the commission.
     
           (c) States that each member serves at the pleasure of the
                authority that appointed the member.
     
           (d) Requires the chair of the advisory commission to be
                selected from among the three members of the board who
                are licensed doctors of chiropractic.
     
           (e) Requires members of the advisory commission to serve
                without compensation for their services, but states that
                members are entitled to reimbursement for actual
                expenses, subject to the approval of the chair.
     
     SECTION 6.  Amends Chapter 94, Acts of the 51st Legislature,
Regular Session, 1949 (Article 4512b, V.T.C.S.), by adding Section
13b, as follows:

Sec. 13b.  (a) Notwithstanding any other provision in this Act,
this subsection requires the board to adopt a process to certify
chiropractors to perform manipulation under anesthesia. Requires
the process to include a requirement that the chiropractor
demonstrate competence by submitting proof of successful completion
of a postgraduate course in manipulation under anesthesia offered
by a chiropractic college accredited by the Council on Chiropractic
Education.

     (b) Requires a chiropractor certified by the board to perform
     manipulation under anesthesia to perform the procedure in a
     setting which provides immediate access to emergency medical
     care. Requires anesthesia to be administered only by a medical
     or osteopathic doctor licensed by the Texas State Board of
     Medical Examiners, who shall be present throughout the
     chiropractic procedure.

     (c) Requires the board to adopt rules for the use of
     manipulation under anesthesia, including certain specified
     topics. Requires the board to consult with the advisory
     commission in adopting these rules.

     (d) Requires the board to adopt a certification process for
     chiropractors to perform acupuncture and needle EMG. The
     process shall include, but not be limited to, a requirement
     that the chiropractor demonstrate competence by submitting
     proof of successful completion of a postgraduate course in
     acupuncture or needle EMG offered by an accredited
     chiropractic college. Requires the board to adopt rules, in
     consultation with the advisory commission, for the use of
     acupuncture and needle EMG.

SECTION 7. Amends Section 14b, Chapter 94, Acts of the 51st
Legislature, Regular Session, 1949 (Article 4512b, V.T.C.S.) as
follows:

     (a) Makes nonsubstantive language changes, changes a reference
     from Chapter 94, Acts of the 51st Legislature to "this Act,"
     and adds "state law" requirements to a provision requiring the
     board to implement any federal law and state law requirements
     relating to radiologic training of the employees of a
     chiropractor.

     (b) Adds this subsection, allowing the board, insofar as no
     conflict with other law exists, to adopt a certification
     process to differentiate chiropractic licensees who have
     successfully completed advanced, postgraduate training at a
     chiropractic college accredited by the Council on Chiropractic
     Education or who have obtained certification through a
     national chiropractic board.

SECTION 8. Amends Section 14c, Chapter 94, Acts of the 51st
Legislature, Regular Session, 1949 (Article 4512b, V.T.C.S.) as
follows:

     Sec. 14c. (a) Alters the composition requirements for the
     enforcement committee, which the board is required to appoint
     to oversee and conduct investigation of complaints filed with
     the board, among other duties. Establishes a set number of
     members instead of a minimum number. Requires the enforcement
     committee to be composed of three board members, two of whom
     are doctors of chiropractic and one of whom is a
     representative of the general public.  Deletes from membership
     the executive director of the board and a representative of
     the attorney general's office.
     
           (b) Requires the attorney general to provide legal
                counsel to the enforcement committee concerning
                complaints and other enforcement matters.
     
     Sec. 14c.1. (a) Requires the Board to keep an information file
     of complaints filed with the board and referred to the
     enforcement committee.  The file shall contain a record of:
     all persons contacted in relation to the complaints, summaries
     of findings, an explanation of dismissed complaints, and other
     relevant information.
     
           (b) The Board shall notify the affected parties of the
                status of the complaint at a specified frequency and over
                a specified interval of time, unless notice would
                jeopardize an undercover investigation.
     
           (c) The board shall adopt rules for a form to standardize
                information concerning complaints. The board by rule
                shall prescribe information to be provided to someone
                when that individual files a complaint.
     
           (d) Requires the board to provide reasonable assistance
                to anyone wishing to file a complaint.
     
           (e) Requires the board by rule to adopt procedures
                concerning the maintenance of specified files on
                licensees.
     
     Sec. 14c.2. is created from existing text, and Subsections (a)
     (b) and (c) are amended to make nonsubstantive language
     changes and to reletter the subsections.
     
     SECTION 9.  Amends Section 19, Chapter 94, Acts of the 51st
Legislature, Regular Session, 1949 (Article 4512b, V.T.C.S.) to
make a conforming change, adding the condition "Except as provided
by Section 5a of this Act" to a provision concerning violators of
the Act.

SECTION 10. (a) Requires any rule adopted or proposed by the Texas
Board of Chiropractic Examiners on or after September 1, 1994, to
be reviewed and amended in conformance with this Act, except for a
rule relating to procedures for the conduct of a contested case
under Chapter 2001, Government Code, or internal operating
procedures.

     (b) Requires the board, not later than December 1, 1996, to
     submit a report to the governor, lieutenant governor, and
     speaker of the house of representatives on the results of the
     review and rulemaking actions under Subsection (a) of this
     section.
     
     SECTION 11. Requires the comptroller to review and analyze the
effectiveness and efficiency of the policy, management, fiscal
affairs, and operation of the Texas Board of Chiropractic
Examiners.  Requires the report to be made before January 10, 1997.

SECTION 12.    Emergency clause.
           Effective date: upon passage.

EXPLANATION OF AMENDMENTS

Committee amendment #1 amends the description of the scope of
chiropractic in SECTION 1 of the bill to state that the practice of
chiropractic includes but is not limited to specified nonsurgical,
nonincisive procedures. Committee amendment #1 also removes two
subsections on page 2 of the bill which list procedures not to be
construed as part of the practice of chiropractic. The amendment,
however, adds similar provisions by amending another part of the
state law and adding a new SECTION 6 to the bill. The provisions
added by the amendment in the new SECTION 6 state that chiropractic
shall not be construed to include the use of X-ray therapy, in
addition to incisive or surgical procedures and the prescribing of
controlled substances or dangerous drug. Also in the new SECTION 6,
the amendment defines "incisive or surgical procedure" for purposes
of the Act.

Committee amendment #2 removes references in the bill to the use of
acupuncture by chiropractors. In deleting Subsection (d) under
SECTION 6 of the bill as engrossed, the amendment would delete
additional rulemaking authority granted to the board in this bill
in regard to the use of acupuncture and needle EMG by a
chiropractor. Committee amendment #2 also deletes Subsection (b)
under SECTION 7 of the bill, which allows the board to adopt a
certification process to differentiate chiropractic licensees who
have successfully completed advanced, postgraduate training at an
accredited chiropractic college or who have obtained certification
through a national chiropractic board.

Committee amendment #3 amends the requirement in SECTION 6 of the
bill as engrossed that the board adopt a process to certify
chiropractors to perform manipulation under anesthesia. The
amendment adds that such chiropractors be certified annually. In
addition, committee amendment #3 adds a requirement to the same
provision which states that the certifying process adopted by the
board include passing an examination prepared by the board to
assess the chiropractor's clinical ability to perform manipulation
under anesthesia.

SUMMARY OF COMMITTEE ACTION

S.B. 718 was considered by the Public Health Committee in a formal
meeting on May 18, 1995. The committee considered four amendments
to the bill. Three of those amendments were adopted without
objection. One of the four amendments failed adoption by a record
vote of 1 aye, 5 nays, 1 PNV, and 2 absent. The bill was reported
favorably as amended, with the recommendation that it do pass and
be printed, by a record vote of 7 ayes, 0 nays, 0 PNV, and 2
absent.