BG S.B. 662 75(R)BILL ANALYSIS


PUBLIC HEALTH
S.B. 662
By: Moncrief (Carter)
5-24-97
Committee Report (Substituted)


BACKGROUND

The Texas Board of Chiropractic Examiners (board) has had several problems
implementing the state law regulating chiropractors. Questions have arisen
concerning the ability of the board, to enforce patient solicitation
provisions.  Concerns have also been raised regarding facilities owned by
non-chiropractors and the possible influence of a  non-licensed person
over the chiropractor's treatment decisions.  In addition, problems have
been identified in the lack of the board's authority to inspect facilities
and clinic records.  This bill attempts to strengthen the board's
authority and better protect chiropractic patients by  ensuring that only
licensed chiropractors are in a position to make or influence treatment
decisions.   

PURPOSE

C.S.S.B. 662 modifies state law regarding the regulation of chiropractic
to regulate persons who own, maintain, or operate chiropractic clinics and
require, with few exceptions, that those persons be licensed
chiropractors.  The bill also authorizes additional enforcement tools for
the board including inspection, administrative subpoena, and civil
penalties.  The bill clarifies the provisions concerning solicitation of
chiropractic patients and requires the board to further establish the
definition of unprofessional conduct and unfair influence.    

RULEMAKING AUTHORITY

It is the committee's opinion that this bill expressly grants additional
rulemaking authority to the Texas Board of Chiropractic Examiners in
SECTION 1 (Section 4(g), Article 4512b, Vernon's Texas Civil Statutes) and
in SECTION 2 (Section 12a(a) and (h), Article 4512b, Vernon's Texas Civil
Statutes).   

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 4, Chapter 94, Acts of the 51st Legislature,
Regular Session, 1949 (Article 4512b, Vernon's Texas Civil Statutes), by
adding Subsections (g) and (h) as follows: 

Subsection (g) requires the board to adopt rules for issuing and
enforcement of administrative subpoena pertaining to books or other
records related to a chiropractic practice or facility. Allows the
subpoena to be issued only by a vote of at least two-thirds of the board.
Requires the subpoena to be served by the board or the board's authorized
representative.  

Subsection (h) allows the board or the board's authorized representative
to bring an action, as specified,  in a Travis County district court.
Authorizes the court to issue an order requiring the person who is subject
to the subpoena to appear, testify, and produce the records as specified.
Provides that failure to obey the court order is punishable as contempt. 
  
SECTION 2. Amends Section 12a, Chapter 94, Acts of the 51st Legislature,
Regular Session, 1949  (Article 4512b, Vernon's Texas Civil Statutes) by
creating Subsection (a) and adding Subsections (b) through (h) as follows: 

Subsection (a) adds language to require the board to adopt rules for the
licensing and regulation of persons who own, maintain, or operate
chiropractic facilities as necessary to protect the public health, safety
and welfare as specified.  Makes conforming changes.  Specifies that an
adopted  rule must prescribe guidelines for what is considered
unprofessional conduct for a person licensed under this section, including
rules on unfair influence as specified.  

Subsection (b) establishes that a person who owns, maintains or operates
any facility where the person employs, directs, supervises, or otherwise
controls, under any kind of contract, any other person for the purpose of
practicing chiropractic as defined in this Act must be licensed as
specified.   

Subsection (c) requires the board to conduct compliance visits as
specified.   

Subsection (d) establishes that the penalty provisions in Sections 14(a)
and (e) of this apply to a person licensed under Subsection (b) of this
section.  

Subsection (e) authorizes the board to bring an action in any district
court of the county where a violation, as specified, is alleged to have
occurred to require compliance by injunctive procedures and to recover a
civil penalty as specified. Requires recovered civil penalties to be
deposited in the general revenue fund. Requires that attorney fees and
court costs to be appropriated to the attorney general or the board, as
appropriate.  

Subsection (f) prohibits this section from being construed to prevent a
managed care organization, a professional association as specified, or the
inheriting spouse of a deceased chiropractor from employing a person
licensed under this section, provided that the entity or person is not
allowed to influence or control the professional judgement of a licensed
chiropractor as specified. Also, prohibits this section from being
construed to prevent a person licensed under this section, from working
for such an entity or person, under conditions, as specified, so that the
entity or person does not influence or control of professional judgment
with regard to the diagnosis or treatment of a patient.       

Subsection (g) prohibits this section from being construed to prevent an
administrator or executor of the estate of a deceased chiropractor or a
person legally authorized to act for a mentally incompetent chiropractor
from employing a person licensed under this section to carry on the
practice as specified. Prohibits this section from being construed to
prevent a licensed chiropractor from working for that person for the
period of the administration of the estate or the period of incapacity.  

Subsection (h)  allows the board or the board's authorized representative
to enter any chiropractic facility during business hours to inspect the
premises, equipment, or licenses. Allows the board or it's authorized
representative to enter any chiropractic facility during normal business
hours to inspect any books or records as specified, if an administrative
subpoena has been issued as specified. Requires the board to adopt rules
governing such inspections. Provides that interference with or refusal to
permit an inspection may be grounds for disciplinary action or imposition
of a penalty as specified.  
 
SECTION 3.  Amends Sec. 14a, Chapter 94, Acts of the 51st Legislature,
Regular Session, 1949 (Article 4512b, Vernon's Texas Civil Statutes) as
follows: 

Subdivision (5) replaces "grossly unprofessional" with "unprofessional" in
regards to conduct of a character likely to deceive or defraud the public
being grounds for the board to refuse persons for examinations or cancel,
revoke  licensure.  

Subdivision (17) adds personally soliciting a patient or causing a patient
to be solicited to provide chiropractic treatment or care for a fee for a
personal injury or a condition as specified or for an existing health
problem of the solicited person to the list of what may be grounds for the
board to take licensure actions or deny examination entrance. Removes
language concerning the use of a peace officer's accident report. 

Subdivision (18) adds sending or permitting to be sent a written
communication, as specified, concerning chiropractic treatment or care for
a personal injury or an accident or a disaster to  the list of what may be
grounds for the board to take licensure actions or deny examination
entrance. Omits language regarding the canvassing, drumming, securing, or
soliciting potential patients considered to be vulnerable. 

SECTION 4.  Amends Section 38.01(11), Penal Code, to add language to the
definition of "solicit employment" to also mean to communicate in person,
by telephone or by written communication with a prospective patient, or
member of a prospective patient's family for the purpose of providing
chiropractic treatment or care for a personal injury or condition arising
out of a particular occurrence or event as specified or for an existing
health problem of the prospective patient.  

SECTION 5.  Effective date is September 1, 1997.

SECTION 5.  Emergency clause.  

COMPARISON OF ORIGINAL TO SUBSTITUTE

In SECTION 1, CSSB 662 amends Section 4 of Article 4512b, V.T.C.S. to add
new provisions regarding the board's authority to issue an administrative
subpoena and compel production of books and records relating to a
chiropractic practice. The substitute bill removes the amendments in
SECTION 1 of the engrossed version of SB 662, which had added Section 5b
to that same article.  

CSSB 662 expands and revises what was in  SECTION 2 of the original bill.
The substitute bill adds language that clarifies that a person who owns,
maintains, or operates a facility must be licensed and provides authority
for the board to establish guidelines regarding unprofessional conduct,
including rules on unfair influence.  Limits civil penalty provisions that
were added in SB 662 for violations of the prohibition against
non-licensed chiropractors owning, maintaining or operating a facility.
Adds authority for the board to enter a chiropractic facility to inspect
the premises, equipment or licenses but requires an administrative
subpoena for the board to inspect books or records related to the
practice. 

New in CSSB 662 are the amendments made to Section 14a (Article 4512b,
V.T.C.S.)  In SECTION 3, the substitute bill modifies provisions making
soliciting patients a cause for which the board may sanction a licensee or
deny application for licensure. The SECTION 3 as it was  SB 662,
concerning the severance clause is eliminated.  

In SECTION 4, the CSSB 662 amends the definition of  "solicit employment"
within the subchapter on Obstructing Governmental Operations in the Penal
Code, so that when it is used later in the prohibiting barratry part of
the section, it includes the soliciting of patients as specified.  

The effective date is provided in SECTION 5 of CSSB 662, rather than in
SECTION 4 as it was in the original bill.