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.