SF 3006

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to health care; implementing advertising restrictions on chiropractors;
amending Minnesota Statutes 2004, section 148.10, subdivision 1.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2004, section 148.10, subdivision 1, is amended to read:

Subdivision 1.

Grounds.

(a) The state Board of Chiropractic Examiners may refuse
to grant, or may revoke, suspend, condition, limit, restrict or qualify a license to practice
chiropractic, or may cause the name of a person licensed to be removed from the records
in the office of the court administrator of the district court for:

(1) Advertising that is false or misleading; that violates a rule of the board; or that
claims the cure of any condition or disease.

(2) The employment of fraud or deception in applying for a license or in passing
the examination provided for in section 148.06 or conduct which subverts or attempts to
subvert the licensing examination process.

(3) The practice of chiropractic under a false or assumed name or the impersonation
of another practitioner of like or different name.

(4) The conviction of a crime involving moral turpitude.

(5) The conviction, during the previous five years, of a felony reasonably related to
the practice of chiropractic.

(6) Habitual intemperance in the use of alcohol or drugs.

(7) Practicing under a license which has not been renewed.

(8) Advanced physical or mental disability.

(9) The revocation or suspension of a license to practice chiropractic; or other
disciplinary action against the licensee; or the denial of an application for a license by
the proper licensing authority of another state, territory or country; or failure to report to
the board that charges regarding the person's license have been brought in another state
or jurisdiction.

(10) The violation of, or failure to comply with, the provisions of sections 148.01
to 148.105, the rules of the state Board of Chiropractic Examiners, or a lawful order of
the board.

(11) Unprofessional conduct.

(12) Being unable to practice chiropractic with reasonable skill and safety to patients
by reason of illness, professional incompetence, senility, drunkenness, use of drugs,
narcotics, chemicals or any other type of material, or as a result of any mental or physical
condition, including deterioration through the aging process or loss of motor skills. If the
board has probable cause to believe that a person comes within this clause, it shall direct
the person to submit to a mental or physical examination. For the purpose of this clause,
every person licensed under this chapter shall be deemed to have given consent to submit
to a mental or physical examination when directed in writing by the board and further to
have waived all objections to the admissibility of the examining physicians' testimony or
examination reports on the ground that the same constitute a privileged communication.
Failure of a person to submit to such examination when directed shall constitute an
admission of the allegations, unless the failure was due to circumstances beyond the
person's control, in which case a default and final order may be entered without the taking
of testimony or presentation of evidence. A person affected under this clause shall at
reasonable intervals be afforded an opportunity to demonstrate that the person can resume
the competent practice of chiropractic with reasonable skill and safety to patients.

In addition to ordering a physical or mental examination, the board may,
notwithstanding section 13.384, 144.651, or any other law limiting access to health
data, obtain health data and health records relating to a licensee or applicant without the
licensee's or applicant's consent if the board has probable cause to believe that a doctor of
chiropractic comes under this clause. The health data may be requested from a provider,
as defined in section 144.335, subdivision 1, paragraph (b), an insurance company, or a
government agency, including the Department of Human Services. A provider, insurance
company, or government agency shall comply with any written request of the board under
this subdivision and is not liable in any action for damages for releasing the data requested
by the board if the data are released pursuant to a written request under this subdivision,
unless the information is false and the provider or entity giving the information knew,
or had reason to believe, the information was false. Information obtained under this
subdivision is classified as private under sections 13.01 to 13.87.

In any proceeding under this clause, neither the record of proceedings nor the orders
entered by the board shall be used against a person in any other proceeding.

(13) Aiding or abetting an unlicensed person in the practice of chiropractic, except
that it is not a violation of this clause for a doctor of chiropractic to employ, supervise,
or delegate functions to a qualified person who may or may not be required to obtain a
license or registration to provide health services if that person is practicing within the
scope of the license or registration or delegated authority.

(14) Improper management of health records, including failure to maintain adequate
health records as described in clause (18), to comply with a patient's request made under
section 144.335 or to furnish a health record or report required by law.

(15) Failure to make reports required by section 148.102, subdivisions 2 and 5,
or to cooperate with an investigation of the board as required by section 148.104, or
the submission of a knowingly false report against another doctor of chiropractic under
section 148.10, subdivision 3.

(16) Splitting fees, or promising to pay a portion of a fee or a commission, or
accepting a rebate.

(17) Revealing a privileged communication from or relating to a patient, except
when otherwise required or permitted by law.

(18) Failing to keep written chiropractic records justifying the course of treatment of
the patient, including, but not limited to, patient histories, examination results, test results,
and x-rays. Unless otherwise required by law, written records need not be retained for
more than seven years and x-rays need not be retained for more than four years.

(19) Exercising influence on the patient or client in such a manner as to exploit the
patient or client for financial gain of the licensee or of a third party which shall include,
but not be limited to, the promotion or sale of services, goods, or appliances.

(20) Gross or repeated malpractice or the failure to practice chiropractic at a level
of care, skill, and treatment which is recognized by a reasonably prudent chiropractor as
being acceptable under similar conditions and circumstances.

(21) Delegating professional responsibilities to a person when the licensee delegating
such responsibilities knows or has reason to know that the person is not qualified by
training, experience, or licensure to perform them.

new text begin (22) Initiating direct contact, in person, over the telephone or by other electronic
means, with any person who has suffered an injury arising out of the maintenance or
use of an automobile, for the purpose of influencing that person to receive treatment or
to purchase any good or item from the licensee or anyone associated with the licensee.
This section prohibits direct contact, whether initiated by the licensee individually or on
behalf of the licensee, by any employee, independent contractor, agent, or third party.
This section does not apply when an injured person voluntarily initiates contact with a
licensee. This section does not prohibit licensees from mailing advertising literature
directly, so long as: the word "ADVERTISEMENT" appears clearly and conspicuously at
the beginning of the written materials; the name of the individual licensee appears clearly
and conspicuously within the written materials; the licensee is clearly identified as a
chiropractor within the written materials; and the licensee does not initiate, individually or
through an employee, independent contractor, agent, or third party, direct contact with the
person after the written materials are sent. This section does not apply to:
new text end

new text begin (i) advertising in public media such as telephone directories, professional directories,
ads in newspapers and other periodicals, radio or television ads, Web sites, billboards, or
similar media that does not involve direct contact with specific prospective patients;
new text end

new text begin (ii) general marketing practices such as giving lectures, participating in special
events, trade shows, or meetings of organizations or making presentations relative to
the benefits of chiropractic treatment; or
new text end

new text begin (iii) contact with friends or relatives, or statements made in a social setting.
new text end

(b) For the purposes of paragraph (a), clause (2), conduct that subverts or attempts
to subvert the licensing examination process includes, but is not limited to: (1) conduct
that violates the security of the examination materials, such as removing examination
materials from the examination room or having unauthorized possession of any portion
of a future, current, or previously administered licensing examination; (2) conduct that
violates the standard of test administration, such as communicating with another examinee
during administration of the examination, copying another examinee's answers, permitting
another examinee to copy one's answers, or possessing unauthorized materials; or (3)
impersonating an examinee or permitting an impersonator to take the examination on
one's own behalf.

(c) For the purposes of paragraph (a), clauses (4) and (5), conviction as used in these
subdivisions includes a conviction of an offense that if committed in this state would be
deemed a felony without regard to its designation elsewhere, or a criminal proceeding
where a finding or verdict of guilt is made or returned but the adjudication of guilt is either
withheld or not entered.

(d) For the purposes of paragraph (a), clauses (4), (5), and (6), a copy of the judgment
or proceeding under seal of the administrator of the court or of the administrative agency
which entered the same shall be admissible into evidence without further authentication
and shall constitute prima facie evidence of its contents.

(e) For the purposes of paragraph (a), clause (11), unprofessional conduct means any
unethical, deceptive or deleterious conduct or practice harmful to the public, any departure
from or the failure to conform to the minimal standards of acceptable chiropractic practice,
or a willful or careless disregard for the health, welfare or safety of patients, in any of
which cases proof of actual injury need not be established. Unprofessional conduct shall
include, but not be limited to, the following acts of a chiropractor:

(1) gross ignorance of, or incompetence in, the practice of chiropractic;

(2) engaging in conduct with a patient that is sexual or may reasonably be interpreted
by the patient as sexual, or in any verbal behavior that is seductive or sexually demeaning
to a patient;

(3) performing unnecessary services;

(4) charging a patient an unconscionable fee or charging for services not rendered;

(5) directly or indirectly engaging in threatening, dishonest, or misleading fee
collection techniques;

(6) perpetrating fraud upon patients, third-party payors, or others, relating to the
practice of chiropractic, including violations of the Medicare or Medicaid laws or state
medical assistance laws;

(7) advertising that the licensee will accept for services rendered assigned payments
from any third-party payer as payment in full, if the effect is to give the impression of
eliminating the need of payment by the patient of any required deductible or co-payment
applicable in the patient's health benefit plan; or advertising a fee or charge for a service
or treatment different from the fee or charge the licensee submits to a third-party payer
for that service or treatment. As used in this clause, "advertise" means solicitation by the
licensee by means of handbills, posters, circulars, motion pictures, radio, newspapers,
television, or in any other manner. In addition to the board's power to punish for violations
of this clause, violation of this clause is also a misdemeanor;

(8) accepting for services rendered assigned payments from any third-party payer
as payment in full, if the effect is to eliminate the need of payment by the patient of any
required deductible or co-payment applicable in the patient's health benefit plan, except as
hereinafter provided; or collecting a fee or charge for a service or treatment different from
the fee or charge the licensee submits to a third-party payer for that service or treatment,
except as hereinafter provided. This clause is intended to prohibit offerings to the public
of the above listed practices and those actual practices as well, except that in instances
where the intent is not to collect an excessive remuneration from the third-party payer but
rather to provide services at a reduced rate to a patient unable to afford the deductible or
co-payment, the services may be performed for a lesser charge or fee. The burden of proof
for establishing that this is the case shall be on the licensee; and

(9) any other act that the board by rule may define.