| |
| |
|
|
A BILL TO BE ENTITLED
|
|
|
AN ACT
|
|
|
relating to the regulation of certain chiropractic clinics; |
|
|
providing administrative and criminal penalties. |
|
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
|
SECTION 1. Subtitle G, Title 2, Health and Safety Code, is |
|
|
amended by adding Chapter 147 to read as follows: |
|
|
CHAPTER 147. NON-DOCTOR-OF-CHIROPRACTIC-OWNED CHIROPRACTIC |
|
|
CLINICS |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 147.001. DEFINITIONS. In this chapter: |
|
|
(1) "Applicant" means a person or business seeking to |
|
|
be licensed under this chapter or seeking the renewal of a license |
|
|
under this chapter. |
|
|
(2) "Board" means the Texas Board of Chiropractic |
|
|
Examiners. |
|
|
(3) "Contracting doctor of chiropractic" means a |
|
|
person engaged in the practice of chiropractic as described by |
|
|
Section 201.002, Occupations Code, who holds a current active |
|
|
license to practice chiropractic and who has entered into a |
|
|
contractual agreement with a licensed chiropractic clinic owner to |
|
|
provide chiropractic care. |
|
|
(4) "Controlling person" means: |
|
|
(A) an officer or director of a corporation |
|
|
seeking a license under this chapter, a shareholder holding 10 |
|
|
percent or more of the voting stock of a corporation seeking to own |
|
|
or operate a non-doctor-of-chiropractic-owned chiropractic clinic, |
|
|
or a partner of a partnership seeking to own or operate a |
|
|
non-doctor-of-chiropractic-owned chiropractic clinic; or |
|
|
(B) an individual who possesses, directly or |
|
|
indirectly, the power to direct or cause the direction of the |
|
|
management or policies of a company that owns and operates a |
|
|
non-doctor-of-chiropractic-owned chiropractic clinic through the |
|
|
ownership of voting securities, by contract or otherwise. |
|
|
(5) "Doctor of chiropractic" means a person engaged in |
|
|
the practice of chiropractic as described by Section 201.002, |
|
|
Occupations Code. |
|
|
(6) "License holder" means an individual or entity |
|
|
licensed under this chapter who owns or operates a |
|
|
non-doctor-of-chiropractic-owned chiropractic clinic. |
|
|
(7) "Non-doctor-of-chiropractic-owned chiropractic |
|
|
clinic" means a chiropractic facility licensed under this chapter |
|
|
and registered under Section 201.312, Occupations Code. |
|
|
[Sections 147.002-147.050 reserved for expansion] |
|
|
SUBCHAPTER B. POWERS AND DUTIES OF BOARD |
|
|
Sec. 147.051. RULES. (a) The board shall adopt rules as |
|
|
necessary to administer this chapter in accordance with Chapter |
|
|
2001, Government Code. |
|
|
(b) Each license holder is governed and controlled by this |
|
|
chapter and the rules adopted by the board. |
|
|
Sec. 147.052. INTERAGENCY COOPERATION. (a) Each state |
|
|
agency that, in performing duties under other law, affects the |
|
|
regulation of non-doctor-of-chiropractic-owned chiropractic |
|
|
clinics shall cooperate with the board and other state agencies as |
|
|
necessary to fully implement and enforce this chapter. |
|
|
(b) The Texas Department of Insurance, the division of |
|
|
workers' compensation of the Texas Department of Insurance, and the |
|
|
attorney general's office shall assist in the implementation of |
|
|
this chapter and shall provide information to the board on request. |
|
|
Sec. 147.053. USE OF FEES. A fee collected by the board |
|
|
under this chapter shall be used to implement and enforce this |
|
|
chapter. |
|
|
[Sections 147.054-147.100 reserved for expansion] |
|
|
SUBCHAPTER C. LICENSING |
|
|
Sec. 147.101. LICENSE REQUIRED. A |
|
|
non-doctor-of-chiropractic-owned chiropractic clinic may not allow |
|
|
a doctor of chiropractic to engage in or offer chiropractic |
|
|
services or chiropractic care at the clinic unless each controlling |
|
|
person for the clinic holds a license issued under this chapter. |
|
|
Sec. 147.102. LICENSE APPLICATION. (a) Each controlling |
|
|
person for a non-doctor-of-chiropractic-owned chiropractic clinic |
|
|
that desires an original or renewal |
|
|
non-doctor-of-chiropractic-owned chiropractic clinic license |
|
|
shall file with the board a written application accompanied by the |
|
|
application fee. |
|
|
(b) The board may require an applicant for a license to |
|
|
provide information and certifications necessary to determine that |
|
|
the applicant meets the licensing requirements of this chapter. |
|
|
The board may also require the applicant to provide information and |
|
|
certifications necessary to determine whether individuals |
|
|
affiliated with the applicant are qualified to serve as controlling |
|
|
persons. |
|
|
(c) An applicant, a license holder, the spouse of an |
|
|
applicant or license holder, a partner of a limited liability |
|
|
partnership, or any stockholder of a corporation is ineligible for |
|
|
a license for two years after the date of a final board action on the |
|
|
denial or revocation of a license applied for or issued under this |
|
|
chapter. This restriction does not apply to a denial or revocation |
|
|
of a license based on: |
|
|
(1) an inadvertent error or omission in the |
|
|
application if that error or omission is promptly corrected; |
|
|
(2) the fact that the experience documented to the |
|
|
board was insufficient at the time of the previous application; or |
|
|
(3) the board being unable to complete the background |
|
|
investigation required under Section 147.103 because of |
|
|
insufficient information received from a local, state, or federal |
|
|
law enforcement agency. |
|
|
(d) An applicant, a license holder, the spouse of an |
|
|
applicant or license holder, a partner of a limited liability |
|
|
partnership, or any stockholder of a corporation is ineligible for |
|
|
a license until the first anniversary of the date of a final board |
|
|
action on the denial or revocation of a license applied for or |
|
|
issued under this chapter if: |
|
|
(1) the basis of the denial or revocation was that one |
|
|
or more of the controlling persons affiliated with the applicant or |
|
|
license holder was determined by the board to be unsuitable; or |
|
|
(2) that unsuitable controlling person has in fact |
|
|
ceased to be a controlling person of the applicant or license |
|
|
holder. |
|
|
Sec. 147.103. LICENSE REQUIREMENTS. (a) In this section: |
|
|
(1) "Assigned employee" means a full-time employee |
|
|
whose normal work week is at least 25 hours per week and whose work |
|
|
is performed in this state. The term does not include an employee |
|
|
hired to support or supplement the client's workforce in special |
|
|
work situations, such as employee absences. |
|
|
(2) "Good moral character" means a personal history of |
|
|
honesty, trustworthiness, fairness, a good reputation for fair |
|
|
dealing, and respect for the rights of others and for the laws of |
|
|
this state and nation. |
|
|
(b) To be qualified to serve as a controlling person for a |
|
|
non-doctor-of-chiropractic-owned chiropractic clinic under this |
|
|
chapter, the person must be at least 18 years of age, be of good |
|
|
moral character, and have educational, managerial, or business |
|
|
experience relevant to: |
|
|
(1) operation of a business entity offering |
|
|
chiropractic care; or |
|
|
(2) service as a controlling person of a chiropractic |
|
|
care facility. |
|
|
(c) The board shall conduct a thorough background |
|
|
investigation of each applicant to determine whether the applicant |
|
|
is qualified under this chapter. The board may deny an application |
|
|
for the issuance or renewal of a license if it finds that the |
|
|
applicant is not qualified to be a controlling person under this |
|
|
chapter. The investigation must include: |
|
|
(1) the submission of fingerprints for processing |
|
|
through appropriate local, state, and federal law enforcement |
|
|
agencies; and |
|
|
(2) examination by the board of police or other law |
|
|
enforcement records maintained by local, state, or federal law |
|
|
enforcement agencies. |
|
|
(d) Board background investigations are governed by this |
|
|
chapter and by Chapter 53, Occupations Code, and Section 411.122, |
|
|
Government Code. Conviction of a crime does not automatically |
|
|
disqualify a controlling person, require the revocation of a |
|
|
license, or require the denial of an application for an original or |
|
|
renewal license. The board shall consider criminal convictions as |
|
|
provided by Chapter 53, Occupations Code, and Section 411.122, |
|
|
Government Code. |
|
|
(e) Each license holder shall maintain a registered agent |
|
|
for the service of process in this state. |
|
|
(f) An applicant for an original or renewal license must |
|
|
demonstrate that the clinic for which the person is applying as a |
|
|
controlling person has a net worth as follows: |
|
|
(1) $50,000 if the clinic employs fewer than five |
|
|
assigned employees; |
|
|
(2) $75,000 if the clinic employs at least five but not |
|
|
more than eight assigned employees; or |
|
|
(3) $100,000 if the clinic employs more than eight |
|
|
assigned employees. |
|
|
(g) The applicant shall demonstrate the net worth of the |
|
|
clinic to the board by providing the board with the applicant's |
|
|
financial statement or a copy of the applicant's most recent |
|
|
federal tax return. The net worth requirement may also be satisfied |
|
|
through guarantees, letters of credit, or other security acceptable |
|
|
to the board. A guaranty is not acceptable under this subsection |
|
|
unless the applicant submits sufficient evidence to satisfy the |
|
|
board that the guarantor has adequate resources to satisfy the |
|
|
obligations of the guaranty. |
|
|
(h) In calculating net worth, an applicant shall include |
|
|
adequate reserves for all taxes and insurance, including reserves |
|
|
for claims incurred but not paid and for claims incurred but not |
|
|
reported under plans of self-insurance for health benefits. The |
|
|
calculation of net worth by an applicant shall be made according to |
|
|
Section 448, Internal Revenue Code of 1986. |
|
|
(i) A document submitted to establish net worth must reflect |
|
|
the net worth as of a date not earlier than six months before the |
|
|
date on which the application is submitted. A document submitted to |
|
|
establish net worth must be prepared or certified by an independent |
|
|
certified public accountant. Information supplied regarding net |
|
|
worth, including copies of federal tax returns, is proprietary and |
|
|
confidential and is exempt from disclosure to third parties, other |
|
|
than to other governmental agencies with a reasonable legitimate |
|
|
purpose for obtaining the information. |
|
|
Sec. 147.104. FEES. (a) Each applicant for an original or |
|
|
renewal license shall pay to the board on the issuance or renewal of |
|
|
the license a fee set by the board by rule in an amount not to exceed |
|
|
$3,000. |
|
|
(b) The board may charge reasonable fees for license |
|
|
applications and license renewals, investigations, inspections, |
|
|
and any other administrative or enforcement responsibilities |
|
|
created under this chapter. |
|
|
Sec. 147.105. POSTING OF LICENSES. (a) The board by rule |
|
|
shall determine the form and content of: |
|
|
(1) licenses issued under this chapter; and |
|
|
(2) notices required to be posted under this section. |
|
|
(b) Each license issued under this chapter must be posted in |
|
|
a conspicuous place in the principal place of business in this state |
|
|
of the license holder. Each license holder shall display, in a |
|
|
place that is clear and unobstructed to public view, a notice |
|
|
stating that the business operated at the location is licensed and |
|
|
regulated by the board and that any questions or complaints should |
|
|
be directed to the board. |
|
|
(c) Each license holder issued a |
|
|
non-doctor-of-chiropratric-owned chiropractic clinic license |
|
|
under this chapter shall provide a copy of the license to the board |
|
|
and to each contracting doctor of chiropractic on receipt of the |
|
|
initial license and annually on renewal. |
|
|
Sec. 147.106. LICENSE NOT ASSIGNABLE; CHANGE OF NAME OR |
|
|
LOCATION. (a) A license holder may not conduct business under any |
|
|
name other than that specified in the license. A license issued |
|
|
under this chapter is not assignable. A license holder may not |
|
|
conduct business under any fictitious or assumed name without prior |
|
|
written authorization from the board. The board may not authorize |
|
|
the use of a name that is so similar to that of a public office or |
|
|
agency or to that of another license holder that the public may be |
|
|
confused or misled by its use. A license holder may not conduct |
|
|
business under more than one name unless it has obtained a separate |
|
|
license for each name. |
|
|
(b) A license holder may change its licensed name at any |
|
|
time by notifying the board and paying a fee for each change of |
|
|
name. The board by rule shall set the fee for a name change in an |
|
|
amount not to exceed $50. A license holder may change its name on |
|
|
renewal of the license without the payment of the name change fee. |
|
|
(c) A license holder must notify the board in writing within |
|
|
30 days of: |
|
|
(1) any change in the location of its primary business |
|
|
office; |
|
|
(2) the addition of more business offices; or |
|
|
(3) a change in the location of business records |
|
|
maintained by the license holder. |
|
|
Sec. 147.107. RECORDS. Records of patient care and |
|
|
treatment are the sole property of the patient and must be |
|
|
maintained and kept in the custody of the doctor of chiropractic who |
|
|
treats the patient for a period prescribed by the board. |
|
|
[Sections 147.108-147.150 reserved for expansion] |
|
|
SUBCHAPTER D. ADMINISTRATIVE AND CRIMINAL PENALTIES |
|
|
Sec. 147.151. PROHIBITED ACTS; CRIMINAL PENALTY. (a) A |
|
|
person may not: |
|
|
(1) offer chiropractic services without holding a |
|
|
license under this chapter as a non-doctor-of-chiropractic-owned |
|
|
chiropractic clinic; |
|
|
(2) use the name or title "chiropractic clinic" or |
|
|
"chiropractic offices," or any derivation of the term |
|
|
"chiropractic," or otherwise represent that the person is licensed |
|
|
under this chapter unless the person holds a license issued under |
|
|
this chapter; |
|
|
(3) represent as the person's own the license of |
|
|
another location or represent that a facility is licensed if the |
|
|
person does not hold a license; |
|
|
(4) give materially false or forged evidence to the |
|
|
board in connection with obtaining or renewing a license or in |
|
|
connection with disciplinary proceedings under this chapter; or |
|
|
(5) use or attempt to use a license that has expired or |
|
|
been revoked. |
|
|
(b) A person that violates Subsection (a) commits an |
|
|
offense. An offense under this subsection is a Class A misdemeanor. |
|
|
(c) The board may notify the attorney general of a |
|
|
violation, and the attorney general may apply to a district court in |
|
|
Travis County for permission to file suit in the nature of quo |
|
|
warranto or for injunctive relief, or both. The attorney general |
|
|
may not be required to post a bond for injunctive relief. |
|
|
Sec. 147.152. DISCIPLINARY ACTIONS. (a) For purposes of |
|
|
this section, "conviction" includes a plea of nolo contendere or a |
|
|
finding of guilt, regardless of adjudication. |
|
|
(b) Disciplinary action may be taken against a license |
|
|
holder by the board on any of the following grounds: |
|
|
(1) the conviction of a license holder or any |
|
|
controlling person affiliated with a license holder of bribery, |
|
|
fraud, or intentional or material misrepresentation in obtaining, |
|
|
attempting to obtain, or renewing a license; |
|
|
(2) the conviction of a license holder or any |
|
|
controlling person affiliated with a license holder of a crime that |
|
|
relates to the operation of a non-doctor-of-chiropractic-owned |
|
|
chiropractic clinic or the ability of the license holder or |
|
|
controlling person to operate a non-doctor-of-chiropractic-owned |
|
|
chiropractic clinic; |
|
|
(3) the conviction of a license holder or any |
|
|
controlling person affiliated with a license holder of a crime that |
|
|
relates to the classification, misclassification, or |
|
|
underreporting of employees under Subtitle A, Title 5, Labor Code; |
|
|
(4) the conviction of a license holder or any |
|
|
controlling person affiliated with a license holder of a crime that |
|
|
relates to the establishment or maintenance of a self-insurance |
|
|
program, whether health insurance, workers' compensation |
|
|
insurance, or other insurance; |
|
|
(5) the conviction of a license holder or any |
|
|
controlling person affiliated with a license holder of a crime that |
|
|
relates to fraud, deceit, or misconduct in the operation of a |
|
|
non-doctor-of-chiropractic-owned chiropractic clinic; |
|
|
(6) engaging in services of a |
|
|
non-doctor-of-chiropractic-owned chiropractic clinic without a |
|
|
license; |
|
|
(7) transferring or attempting to transfer a license |
|
|
issued under this chapter; |
|
|
(8) violating this chapter or any order or rule issued |
|
|
by the board under this chapter; |
|
|
(9) failing to notify the board, in writing, of the |
|
|
felony conviction of any controlling person not later than the 30th |
|
|
day after the date on which that conviction is final; |
|
|
(10) failing to cooperate with an investigation, |
|
|
examination, or audit of the license holder's records conducted by |
|
|
the license holder's insurance company or the insurance company's |
|
|
designee, as allowed by the insurance contract or as authorized by |
|
|
the board; |
|
|
(11) failing to notify the board not later than the |
|
|
30th day after the effective date of the change of any change in |
|
|
ownership, principal business address, or the address of accounts |
|
|
and records; |
|
|
(12) failing to correct any tax filing or payment |
|
|
deficiency within a reasonable time as determined by the board; |
|
|
(13) refusing, after reasonable notice, to meet |
|
|
reasonable health and safety requirements within the license |
|
|
holder's control and made known to the license holder by a federal |
|
|
or state agency; |
|
|
(14) a delinquency in the payment of any taxes or debts |
|
|
owed to this state other than a tax or debt subject to a legitimate |
|
|
dispute; |
|
|
(15) knowingly making a material misrepresentation to |
|
|
an insurance company, the board, or any other governmental agency; |
|
|
or |
|
|
(16) failing to maintain the net worth requirements |
|
|
required under Section 147.103. |
|
|
(c) On a finding that a license holder or applicant has |
|
|
violated one or more provisions of Subsection (b), the board may: |
|
|
(1) deny an application for a license; |
|
|
(2) revoke, restrict, or refuse to renew a license; |
|
|
(3) impose an administrative penalty in an amount not |
|
|
less than $1,000 per violation, but not more than $50,000; |
|
|
(4) issue a reprimand; or |
|
|
(5) place the license holder on probation for a period |
|
|
and subject to conditions that the board specifies. |
|
|
(d) On revocation of a license, the license holder shall |
|
|
immediately return the revoked license to the board and notify all |
|
|
employees, all patients, and the board that the clinic may no longer |
|
|
provide chiropractic care and services. |
|
|
(e) The board may take disciplinary action, deny a license |
|
|
application or renewal, or revoke a license only on a determination |
|
|
that a controlling person is unqualified, after notice to, and an |
|
|
opportunity for a hearing by, the affected applicant, license |
|
|
holder, or controlling person in accordance with Chapter 2001, |
|
|
Government Code. |
|
|
(f) If a license is revoked or renewal is denied, the |
|
|
affected license holder may not request a reinstatement hearing |
|
|
before the first anniversary of the date of revocation or denial. |
|
|
The board may reinstate or renew the license only if the cause of |
|
|
the revocation or denial has been corrected. |
|
|
SECTION 2. Not later than November 1, 2009, the Texas Board |
|
|
of Chiropractic Examiners shall adopt rules as required by Section |
|
|
147.051, Health and Safety Code, as added by this Act. |
|
|
SECTION 3. This Act takes effect September 1, 2009, except |
|
|
that Section 147.101 and Subchapter D, Chapter 147, Health and |
|
|
Safety Code, as added by this Act, take effect January 1, 2010. |