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.