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.