75R16608 GJH-F
By Moncrief S.B. No. 662
Substitute the following for S.B. No. 662:
By Berlanga C.S.S.B. No. 662
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the unauthorized practice of chiropractic; providing
1-3 civil and administrative penalties and injunctive relief.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 4, Chapter 94, Acts of the 51st
1-6 Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
1-7 Civil Statutes), is amended by adding Subsections (g) and (h) to
1-8 read as follows:
1-9 (g) The Board shall adopt rules for the issuance and
1-10 enforcement of an administrative subpoena to compel the production
1-11 of books or other records related to the practice of chiropractic
1-12 or related to the operation of a chiropractic facility. A subpoena
1-13 may be issued only by a vote of at least two-thirds of the Board
1-14 and shall be served by the Board or the Board's authorized
1-15 representative.
1-16 (h) The Board or the Board's authorized representative may
1-17 bring an action in a district court of Travis County seeking
1-18 compliance with a subpoena issued under Subsection (g) of this
1-19 section. The court may issue an order requiring the person who is
1-20 the subject of the subpoena to appear and testify and to produce
1-21 the subpoenaed books or records. Failure to obey the order of the
1-22 court is punishable by the court as contempt.
1-23 SECTION 2. Section 12a, Chapter 94, Acts of the 51st
1-24 Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
2-1 Civil Statutes), is amended to read as follows:
2-2 Sec. 12a. (a) The Board shall adopt rules for the licensing
2-3 and regulation of persons who own, maintain, or operate
2-4 chiropractic facilities as necessary to protect the public health,
2-5 safety, and welfare. A rule adopted by the Board under this
2-6 section must:
2-7 (1) specify the licensing requirements for a person
2-8 who owns, maintains, or operates a chiropractic facility;
2-9 (2) set out the structure of the facility licensing
2-10 program for the persons who own, maintain, or operate chiropractic
2-11 facilities; [and]
2-12 (3) provide that the Board shall issue one facility
2-13 license for each chiropractic facility location that a person owns,
2-14 maintains, or operates as a chiropractic facility; and
2-15 (4) prescribe guidelines for what is considered
2-16 unprofessional conduct for a person licensed under this section,
2-17 including rules on unfair influence by the licensed person of a
2-18 chiropractor's professional judgment regarding treatment or
2-19 diagnosis [to an owner of a chiropractic facility without regard to
2-20 the number of chiropractic facilities owned by the owner].
2-21 (b) A person who owns, maintains, or operates any facility,
2-22 including any office or place of business, where the person
2-23 employs, directs, supervises, or otherwise controls, under any kind
2-24 of contract, any other person for the purpose of practicing
2-25 chiropractic as defined in this Act must be licensed by the Board
2-26 under this section.
2-27 (c) The Board shall conduct compliance visits of
3-1 chiropractic facilities as necessary to protect the public health,
3-2 safety, and welfare.
3-3 (d) Sections 14a and 14e of this Act apply to a person
3-4 licensed under Subsection (b) of this section.
3-5 (e) The Board may bring an action in any district court of
3-6 the county in which a violation of Subsection (b) of this section
3-7 is alleged to have occurred to require compliance by injunctive
3-8 procedures and to recover a civil penalty not to exceed $1,000 for
3-9 each day that a violation of Subsection (b) of this section is
3-10 found to have occurred, plus costs of court and reasonable
3-11 attorney's fees. Civil penalties recovered shall be deposited in
3-12 the general revenue fund. Attorney's fees and court costs shall be
3-13 appropriated to the attorney general or the Board, as appropriate.
3-14 (f) This section may not be construed to prevent a managed
3-15 care organization, a professional association formed under the
3-16 Texas Professional Association Act (Article 1528f, Vernon's Texas
3-17 Civil Statutes), or the spouse of a deceased chiropractor who
3-18 inherits a chiropractic facility from employing a person licensed
3-19 under this section, provided that the entity or person may not
3-20 directly or indirectly control or attempt to control or otherwise
3-21 influence the professional judgment of a licensed chiropractor with
3-22 regard to the diagnosis or treatment of a patient. In addition,
3-23 this section may not be construed to prevent a person licensed
3-24 under this section from working for such an entity or person, if
3-25 that entity or person does not directly or indirectly control or
3-26 attempt to control or otherwise influence the professional judgment
3-27 of a licensed chiropractor with regard to the diagnosis or
4-1 treatment of a patient.
4-2 (g) This section may not be construed to prevent the
4-3 administrator or executor of the estate of a deceased chiropractor
4-4 or a person legally authorized to act for a mentally incompetent
4-5 chiropractor from employing a person licensed under this section to
4-6 carry on the practice of the deceased or mentally incompetent
4-7 chiropractor for a reasonable period of time, as determined by the
4-8 Board, or otherwise concluding the affairs of the practice,
4-9 including the sale of any remaining assets. In addition, this
4-10 section may not be construed to prevent a licensed chiropractor
4-11 from working for that person for the period of the administration
4-12 of the estate or the period of incapacity.
4-13 (h) The Board or the Board's authorized representative may
4-14 enter any chiropractic facility during normal business hours to
4-15 inspect the premises, equipment, or licenses. The Board or the
4-16 Board's authorized representative may enter any chiropractic
4-17 facility during normal business hours to inspect any books or other
4-18 records related to the practice of chiropractic or related to the
4-19 operation of the facility, if an administrative subpoena has been
4-20 issued under Section 4 of this Act. The Board shall adopt rules
4-21 governing inspections conducted under this subsection. A person's
4-22 interference with or refusal to permit an inspection under this
4-23 subsection may be grounds for disciplinary action or imposition of
4-24 a penalty under Sections 14 and 19a of this Act.
4-25 SECTION 3. Section 14a, Chapter 94, Acts of the 51st
4-26 Legislature, Regular Session, 1949 (Article 4512b, Vernon's Texas
4-27 Civil Statutes), is amended to read as follows:
5-1 Sec. 14a. The Texas Board of Chiropractic Examiners may
5-2 refuse to admit persons to its examinations and may cancel, revoke
5-3 or suspend licenses or place licensees upon probation for such
5-4 length of time as may be deemed proper by the Board for any one or
5-5 more of the following causes:
5-6 1. For failure to comply with, or the violation of, any of
5-7 the provisions of this Act or of a rule adopted under this Act;
5-8 2. If it is found that said person or persons are in any way
5-9 guilty of deception or fraud in the practice of chiropractic;
5-10 3. The presentation to the Board or use of any license,
5-11 certificate or diploma, which was illegally or fraudulently
5-12 obtained, or the presentation to the Board of any untrue statement
5-13 or any document or testimony which was illegally practiced in
5-14 passing the examination;
5-15 4. Conviction of a crime of the grade of a felony, or one
5-16 which involves moral turpitude, or the procuring or assisting in
5-17 the procuring of an abortion;
5-18 5. Unprofessional [Grossly unprofessional] conduct or
5-19 dishonorable conduct of a character likely to deceive or defraud
5-20 the public, habits of intemperance or drug addiction, or other
5-21 habits calculated in the opinion of the Board to endanger the lives
5-22 of patients;
5-23 6. The use of any advertising statement of a character to
5-24 mislead or deceive the public;
5-25 7. Employing or associating with, directly or indirectly,
5-26 any person who, during the period of such employment, commits any
5-27 act constituting the practice of chiropractic when such person is
6-1 not licensed to do so;
6-2 8. The advertising of professional superiority, or the
6-3 advertising of the performance of professional services in a
6-4 superior manner;
6-5 9. The purchase, sale, barter, use, or any offer to
6-6 purchase, sell, barter or use, any chiropractic degree, license,
6-7 certificate, or diploma, or transcript of license, certificate, or
6-8 diploma in or incident to an application to the Board of
6-9 Chiropractic Examiners for license to practice chiropractic;
6-10 10. Altering with fraudulent intent any chiropractic
6-11 license, certificate or diploma, or transcript of chiropractic
6-12 license, certificate or diploma;
6-13 11. The impersonation of, or acting as proxy for, another in
6-14 any examination required by this Act for a chiropractic license;
6-15 12. The impersonation of a licensed practitioner, or the
6-16 permitting or allowing another to use his license or certificate to
6-17 practice chiropractic as defined by statute by a licensed
6-18 practitioner;
6-19 13. Proof of insanity of the holder of a certificate, as
6-20 adjudged by the regularly constituted authorities;
6-21 14. Failure to use proper diligence in the practice of
6-22 chiropractic by the holder of a certificate, or grossly inefficient
6-23 practice of chiropractic;
6-24 15. Failing to clearly differentiate a chiropractic office
6-25 or clinic from any other business or enterprise;
6-26 16. Personally soliciting patients, or causing patients to
6-27 be solicited, by the use of case histories of patients of other
7-1 chiropractors;
7-2 17. Personally soliciting a patient, or causing a patient to
7-3 be solicited, including solicitation in person, by telephone, or by
7-4 written communication, to provide chiropractic treatment or care
7-5 for a fee for a personal injury or a condition arising out of a
7-6 particular occurrence or event or a series of occurrences or events
7-7 or for an existing health problem of the solicited person [Using an
7-8 accident report prepared by a peace officer in a manner prohibited
7-9 by Section 38.12, Penal Code, for the purpose of soliciting
7-10 patients];
7-11 18. Sending or permitting to be sent a written communication
7-12 concerning chiropractic treatment or care for a personal injury or
7-13 an accident or disaster involving the person to whom the
7-14 communication is directed or sending or permitting the
7-15 communication to be sent to a relative of the person, if the
7-16 written communication is mailed before the 31st day after the date
7-17 the accident or disaster occurred and the person to whom the
7-18 communication is directed has not previously sought the
7-19 chiropractor's care [If, when uninvited, a licensee or person
7-20 designated, contracted or paid by licensee directly canvasses,
7-21 drums, secures or solicits by phone, mail or in person patients or
7-22 potential patients who, because of their particular circumstances,
7-23 are vulnerable to undue influence. Circumstances in which patients
7-24 or potential patients may be considered to be vulnerable to undue
7-25 influence include but are not limited to:]
7-26 [a. when a person is known to the licensee to have recently
7-27 been involved in a motor vehicle accident;]
8-1 [b. when a person is known to the licensee to have recently
8-2 been involved in a work-related accident; or]
8-3 [c. when a person is known to the licensee to have recently
8-4 been injured by another person or as a result of another person's
8-5 actions]; or
8-6 19. The term "chiropractic physician" may be used for the
8-7 express purpose of filing a claim for necessary services within the
8-8 definition of chiropractic under this Act when the billing for such
8-9 services has universally applied, predetermined coding or
8-10 description requirements that are a prerequisite to appropriate
8-11 reimbursement. A chiropractor may not advertise using the term
8-12 "physician," "chiropractic physician," or any combination or
8-13 derivation of the term "physician."
8-14 SECTION 4. Section 38.01(11), Penal Code, is amended to read
8-15 as follows:
8-16 (11) "Solicit employment" means to communicate in
8-17 person or by telephone or written communication with a prospective
8-18 client or a member of the prospective client's family concerning
8-19 legal representation arising out of a particular occurrence or
8-20 event, or series of occurrences or events, or concerning an
8-21 existing legal problem of the prospective client, for the purpose
8-22 of providing legal representation to the prospective client, when
8-23 neither the person receiving the communication nor anyone acting on
8-24 that person's behalf has requested the communication. The term
8-25 does not include a communication initiated by a family member of
8-26 the person receiving a communication, a communication by an
8-27 attorney who has a prior or existing attorney-client relationship
9-1 with the person receiving the communication, or communication by an
9-2 attorney for a qualified nonprofit organization with the
9-3 organization's members for the purpose of educating the
9-4 organization's members to understand the law, to recognize legal
9-5 problems, to make intelligent selection of legal counsel, or to use
9-6 available legal services. The term does not include an
9-7 advertisement by an attorney through public media. The term also
9-8 means to communicate in person, by telephone, or by written
9-9 communication with a prospective patient, or a member of the
9-10 prospective patient's family, for the purpose of providing
9-11 chiropractic treatment or care for a personal injury or condition
9-12 arising out of a particular occurrence or event or a series of
9-13 occurrences or events or for an existing health problem of the
9-14 prospective patient.
9-15 SECTION 5. This Act takes effect September 1, 1997.
9-16 SECTION 6. The importance of this legislation and the
9-17 crowded condition of the calendars in both houses create an
9-18 emergency and an imperative public necessity that the
9-19 constitutional rule requiring bills to be read on three several
9-20 days in each house be suspended, and this rule is hereby suspended.