1-1  By:  Moncrief, Armbrister                              S.B. No. 718
    1-2        (In the Senate - Filed February 22, 1995; February 23, 1995,
    1-3  read first time and referred to Committee on Health and Human
    1-4  Services; April 18, 1995, reported adversely, with favorable
    1-5  Committee Substitute by the following vote:  Yeas 8, Nays 0;
    1-6  April 18, 1995, sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 718                 By:  Moncrief
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to the regulation of the practice of chiropractic;
   1-11  providing a penalty.
   1-12        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-13        SECTION 1.  Section 1, Chapter 94, Acts of the 51st
   1-14  Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
   1-15  Civil Statutes), is amended to read as follows:
   1-16        Sec. 1.  (a)  A person shall be regarded as practicing
   1-17  chiropractic within the meaning of this Act if the person:
   1-18              (1)  uses objective or subjective means to analyze,
   1-19  examine, or evaluate the subluxation complex and biomechanical
   1-20  condition of the spine and appendicular skeleton and muscles of the
   1-21  spine and appendicular skeleton <musculoskeletal system of the
   1-22  human body>;
   1-23              (2)  performs non-surgical, non-invasive <uses
   1-24  adjustment, manipulation, or other> procedures, including but not
   1-25  limited to adjustment and manipulation, in order to improve the
   1-26  subluxation complex and biomechanical condition of the spine and
   1-27  appendicular skeleton and the muscles of the spine and appendicular
   1-28  skeleton <or the biomechanics of the musculoskeletal system>; or
   1-29              (3)  holds himself out to the public as a chiropractor
   1-30  or uses the term "chiropractor," "chiropractic," "doctor of
   1-31  chiropractic," "D.C.," or any derivative of those terms in
   1-32  connection with his name.
   1-33        (b)  The practice of chiropractic shall not be construed to
   1-34  include invasive or surgical procedures or the prescribing of
   1-35  controlled substances or dangerous drugs.
   1-36        (c)  In this Act, "invasive procedure" includes entry into
   1-37  any tissue, cavity, or organ by any person or implement.  It does
   1-38  not include examination of the ear, nose, and throat or drawing
   1-39  blood for the purposes of diagnostic testing.
   1-40        SECTION 2.  Subsection (c), Section 4, Chapter 94, Acts of
   1-41  the 51st Legislature, Regular Session, 1949 (Article 4512b,
   1-42  Vernon's Texas Civil Statutes), is amended to read as follows:
   1-43        (c)  The Board shall adopt guidelines for educational
   1-44  preparation and acceptable practices which are within the scope of
   1-45  chiropractic practice as defined in Section 1 of this Act <for all
   1-46  aspects of the practice of chiropractic.  The Board may not adopt a
   1-47  rule relating to the meaning of the practice of chiropractic under
   1-48  this Act except for:>
   1-49              <(1)  a rule relating to an adjustment, manipulation,
   1-50  or other procedure directly related to improving the subluxation of
   1-51  the spine or of the musculoskeletal system as it directly relates
   1-52  to improving the subluxation of the spine; or>
   1-53              <(2)  a rule that defines an unacceptable practice of
   1-54  chiropractic and provides for a penalty or sanction under this
   1-55  Act>.
   1-56        SECTION 3.  Section 5a, Chapter 94, Acts of the 51st
   1-57  Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
   1-58  Civil Statutes), is amended by adding Subsection (c) to read as
   1-59  follows:
   1-60        (c)  A person who violates this section commits an offense.
   1-61  An offense under this section is a Class A misdemeanor.  If it is
   1-62  shown at a trial of an offense under this section that the
   1-63  defendant has previously been convicted under this section, the
   1-64  offense is a felony of the third degree.  Each day of violation
   1-65  constitutes a separate offense.
   1-66        SECTION 4.  Chapter 94, Acts of the 51st Legislature, Regular
   1-67  Session, 1949 (Article 4512b, Vernon's Texas Civil Statutes), is
   1-68  amended by adding Section 12b to read as follows:
    2-1        Sec. 12b.  (a)  The advisory commission to the Texas Board of
    2-2  Chiropractic Examiners is created.
    2-3        (b)  The advisory commission is composed of:
    2-4              (1)  three persons who are licensees of the Board and
    2-5  who are appointed by the Board;
    2-6              (2)  two representatives from chiropractic colleges in
    2-7  this state appointed by the president of the Board from a list
    2-8  submitted by the president or governing body of each college;
    2-9              (3)  two members of the Texas State Board of Medical
   2-10  Examiners who are designated by that board;
   2-11              (4)  one member of the Board of Nurse Examiners who is
   2-12  designated by that board; and
   2-13              (5)  one member of the State Board of Pharmacy who is
   2-14  designated by that board.
   2-15        (c)  Each member of the advisory commission serves at the
   2-16  pleasure of the authority that appointed the member to the advisory
   2-17  commission.
   2-18        (d)  The president of the Board shall appoint the chair of
   2-19  the advisory commission.
   2-20        (e)  The members of the advisory commission are not entitled
   2-21  to compensation for their services, but each member is entitled to
   2-22  reimbursement for any necessary expense incurred in the performance
   2-23  of the member's duties on the advisory committee including
   2-24  necessary travel expenses.
   2-25        (f)  All expenses of the advisory commission shall be
   2-26  considered expenses necessary to the administration of this Act and
   2-27  shall be defrayed as provided in Section 2 of this Act.
   2-28        (g)  The advisory commission shall meet at least once each
   2-29  year at the call of the chair.
   2-30        (h)  The advisory commission serves to review new and
   2-31  experimental procedures, therapies, and tests which would be within
   2-32  the scope of the practice of chiropractic as defined in this Act to
   2-33  determine the safety and efficacy of such procedures, therapies,
   2-34  and tests.
   2-35        SECTION 5.  Chapter 94, Acts of the 51st Legislature, Regular
   2-36  Session, 1949 (Article 4512b, Vernon's Texas Civil Statutes), is
   2-37  amended by adding Section 13b to read as follows:
   2-38        Sec. 13b.  (a)  Notwithstanding any other provision in this
   2-39  Act, the Board shall adopt a process to certify chiropractors to
   2-40  perform manipulation under anesthesia.  The process shall include,
   2-41  but not be limited to, a requirement that the chiropractor
   2-42  demonstrate competence by submitting proof of successful completion
   2-43  of a postgraduate course in manipulation under anesthesia offered
   2-44  by a chiropractic college accredited by the Council on Chiropractic
   2-45  Education.
   2-46        (b)  A chiropractor certified by the Board to perform
   2-47  manipulation under anesthesia shall perform the procedure in a
   2-48  setting which provides immediate access to emergency medical care
   2-49  in the event of adverse reaction of the patient to the anesthesia.
   2-50  Anesthesia shall only be administered by a medical or osteopathic
   2-51  doctor licensed by the Texas State Board of Medical Examiners to
   2-52  administer anesthesia, who shall be present throughout the
   2-53  chiropractic procedure.
   2-54        SECTION 6.  Section 14a, Chapter 94, Acts of the 51st
   2-55  Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
   2-56  Civil Statutes), is amended to read as follows:
   2-57        Sec. 14a.  The Texas Board of Chiropractic Examiners may
   2-58  refuse to admit persons to its examinations and may cancel, revoke
   2-59  or suspend licenses or place licensees upon probation for such
   2-60  length of time as may be deemed proper by the Board for any one or
   2-61  more of the following causes:
   2-62              1.  For failure to comply with, or the violation of,
   2-63  any of the provisions of this Act or of a rule adopted under this
   2-64  Act;
   2-65              2.  If it is found that said person or persons are in
   2-66  any way guilty of deception or fraud in the practice of
   2-67  chiropractic;
   2-68              3.  The presentation to the Board or use of any
   2-69  license, certificate or diploma, which was illegally or
   2-70  fraudulently obtained, or the presentation to the Board of any
    3-1  untrue statement or any document or testimony which was illegally
    3-2  practiced in passing the examination;
    3-3              4.  Conviction of a crime of the grade of a felony, or
    3-4  one which involves moral turpitude, or the procuring or assisting
    3-5  in the procuring of an abortion;
    3-6              5.  Grossly unprofessional conduct or dishonorable
    3-7  conduct of a character likely to deceive or defraud the public,
    3-8  habits of intemperance or drug addiction, or other habits
    3-9  calculated in the opinion of the Board to endanger the lives of
   3-10  patients;
   3-11              6.  The use of any advertising statement of a character
   3-12  to mislead or deceive the public;
   3-13              7.  Employing or associating with, directly or
   3-14  indirectly, any person who, during the period of such employment,
   3-15  commits any act constituting the practice of chiropractic when such
   3-16  person is not licensed to do so;
   3-17              8.  The advertising of professional superiority, or the
   3-18  advertising of the performance of professional services in a
   3-19  superior manner;
   3-20              9.  The purchase, sale, barter, use, or any offer to
   3-21  purchase, sell, barter or use, any chiropractic degree, license,
   3-22  certificate, or diploma, or transcript of license, certificate, or
   3-23  diploma in or incident to an application to the Board of
   3-24  Chiropractic Examiners for license to practice chiropractic;
   3-25              10.  Altering with fraudulent intent any chiropractic
   3-26  license, certificate or diploma, or transcript of chiropractic
   3-27  license, certificate or diploma;
   3-28              11.  The impersonation of, or acting as proxy for,
   3-29  another in any examination required by this Act for a chiropractic
   3-30  license;
   3-31              12.  The impersonation of a licensed practitioner, or
   3-32  the permitting or allowing another to use his license or
   3-33  certificate to practice chiropractic as defined by statute by a
   3-34  licensed practitioner;
   3-35              13.  Proof of insanity of the holder of a certificate,
   3-36  as adjudged by the regularly constituted authorities;
   3-37              14.  Failure to use proper diligence in the practice of
   3-38  chiropractic by the holder of a certificate, or grossly inefficient
   3-39  practice of chiropractic;
   3-40              15.  Failing to clearly differentiate a chiropractic
   3-41  office or clinic from any other business or enterprise;
   3-42              16.  Personally soliciting patients, or causing
   3-43  patients to be solicited, by the use of case histories of patients
   3-44  of other chiropractors;
   3-45              17.  Using an accident report prepared by a peace
   3-46  officer in a manner prohibited by Section 38.12, Penal Code, for
   3-47  the purpose of soliciting patients; <or>
   3-48              18.  If, when uninvited, a licensee or person
   3-49  designated, contracted or paid by licensee directly canvasses,
   3-50  drums, secures or solicits by phone, mail or in person patients or
   3-51  potential patients who, because of their particular circumstances,
   3-52  are vulnerable to undue influence.  Circumstances in which patients
   3-53  or potential patients may be considered to be vulnerable to undue
   3-54  influence include but are not limited to:
   3-55                    a.  when a person is known to the licensee to
   3-56  have recently been involved in a motor vehicle accident;
   3-57                    b.  when a person is known to the licensee to
   3-58  have recently been involved in a work-related accident; or
   3-59                    c.  when a person is known to the licensee to
   3-60  have recently been injured by another person or as a result of
   3-61  another person's actions; or
   3-62              19.  Advertising or representing in the use of a
   3-63  professional name or title the term "physician," "chiropractic
   3-64  physician," or any combination or derivation of the term
   3-65  "physician."<.>
   3-66        SECTION 7.  Section 14b, Chapter 94, Acts of the 51st
   3-67  Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
   3-68  Civil Statutes), is amended to read as follows:
   3-69        Sec. 14b.  The Board may require evidence of proper training,
   3-70  precaution, and safety in the use of analytical and diagnostic
    4-1  x-ray in conformity with the provisions of Chapter 401, Health and
    4-2  Safety Code, and in conformity with all rules and regulations of
    4-3  the Texas Radiation Control Agency and the Texas State Department
    4-4  of Health.  Nothing in this section <herein> shall be deemed to
    4-5  alter, modify, or amend the provisions of Section 1 of this Act<,
    4-6  Chapter 94, Acts of the 51st Legislature, 1949, as amended (Article
    4-7  4512b, Vernon's Texas Civil Statutes),> or to enlarge in any manner
    4-8  the scope of the practice of chiropractic or the acts which a
    4-9  chiropractor is authorized to perform; and, provided further, that
   4-10  nothing in this section <herein> shall be deemed to alter, modify,
   4-11  or amend the provisions of Article 4510, Revised Civil Statutes of
   4-12  Texas, 1925, as amended.  The Board shall implement any federal law
   4-13  and state law requirements relating to radiologic training of the
   4-14  employees of a chiropractor.
   4-15        SECTION 8.  Section 14c, Chapter 94, Acts of the 51st
   4-16  Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
   4-17  Civil Statutes), is amended to read as follows:
   4-18        Sec. 14c.  (a)  The Board shall appoint an enforcement
   4-19  committee to oversee and conduct the investigation of complaints
   4-20  filed with the Board under this Act and to perform other duties
   4-21  related to enforcement as directed by the Board.  The enforcement
   4-22  committee is composed of three<:>
   4-23              <(1)  two or more> Board members, two <at least one> of
   4-24  whom are doctors <is a doctor> of chiropractic and <at least> one
   4-25  of whom is a representative of the general public<;>
   4-26              <(2)  the executive director; and>
   4-27              <(3)  a representative of the attorney general's
   4-28  office>.
   4-29        (b)  If sufficient funds are available, the Board may
   4-30  contract with a private attorney to advise the enforcement
   4-31  committee concerning complaints and other enforcement matters and
   4-32  the investigation and disposition of complaints and other
   4-33  enforcement matters.
   4-34        Sec. 14c.1.  (a)  The Board shall adopt rules concerning the
   4-35  investigation of a complaint filed with the Board.  The rules
   4-36  adopted under this subsection shall:
   4-37              (1)  distinguish between categories of complaints;
   4-38              (2)  ensure that complaints are not dismissed without
   4-39  appropriate consideration;
   4-40              (3)  require that the Board be advised of a complaint
   4-41  that is dismissed and that a letter be sent to the person who filed
   4-42  the complaint explaining the action taken on the dismissed
   4-43  complaint;
   4-44              (4)  ensure that the person who filed the complaint has
   4-45  an opportunity to explain the allegations made in the complaint;
   4-46  and
   4-47              (5)  prescribe guidelines concerning the categories of
   4-48  complaints that require the use of a private investigator and the
   4-49  procedures for the Board to obtain the services of a private
   4-50  investigator.
   4-51        (b) <(c)>  The Board shall dispose of all complaints in a
   4-52  timely manner.  The Board shall establish a time line for
   4-53  conducting each phase of a complaint that is under the control of
   4-54  the Board not later than the 30th day after the date the complaint
   4-55  is received by the Board.  The time line shall be kept in the
   4-56  information file for the complaint and all parties shall be
   4-57  notified of the projected time requirements for pursuing the
   4-58  complaint.  A change in the time line must be noted in the
   4-59  complaint information file and all parties to the complaint must be
   4-60  notified not later than the seventh day after the date the change
   4-61  is made.
   4-62        (c) <(d)>  The executive director of the Board shall notify
   4-63  the Board of a complaint that extends beyond the time prescribed by
   4-64  the Board for resolving the complaint so that the Board may take
   4-65  necessary action on the complaint.
   4-66        SECTION 9.  Section 19, Chapter 94, Acts of the 51st
   4-67  Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
   4-68  Civil Statutes), is amended to read as follows:
   4-69        Sec. 19.  Except as provided by Section 5a of this Act, a
   4-70  person who <Whoever> violates any provision of this Act shall be
    5-1  guilty of a misdemeanor, and upon conviction shall be punished by a
    5-2  fine of not less than Fifty Dollars ($50) nor more than Five
    5-3  Hundred Dollars ($500), or by imprisonment in the county jail for
    5-4  not more than thirty (30) days.
    5-5        SECTION 10.  (a)  Any rule adopted or proposed for adoption
    5-6  by the Texas Board of Chiropractic Examiners on or after
    5-7  September 1, 1994, must be reviewed and amended in conformance with
    5-8  this Act except for a rule relating to:
    5-9              (1)  procedures for the conduct of a contested case
   5-10  held under Chapter 2001, Government Code (Administrative Procedure
   5-11  Act); or
   5-12              (2)  internal operating procedures.
   5-13        (b)  Not later than December 1, 1996, the Texas Board of
   5-14  Chiropractic Examiners shall submit a report to the governor,
   5-15  lieutenant governor, and speaker of the house of representatives on
   5-16  the results of the review and rulemaking actions under Subsection
   5-17  (a) of this section.
   5-18        SECTION 11.  The comptroller, under the authority of Section
   5-19  403.022, Government Code, shall perform a review and shall analyze
   5-20  the effectiveness and efficiency of the policy, management, fiscal
   5-21  affairs, and operation of the Texas Board of Chiropractic
   5-22  Examiners.  The report shall be made before January 10, 1997.
   5-23        SECTION 12.  The importance of this legislation and the
   5-24  crowded condition of the calendars in both houses create an
   5-25  emergency and an imperative public necessity that the
   5-26  constitutional rule requiring bills to be read on three several
   5-27  days in each house be suspended, and this rule is hereby suspended,
   5-28  and that this Act take effect and be in force from and after its
   5-29  passage, and it is so enacted.
   5-30                               * * * * *