1.1                          A bill for an act 
  1.2             relating to health occupations; prohibiting 
  1.3             unauthorized firms from engaging in the practice of 
  1.4             chiropractic; specifying what conduct constitutes fee 
  1.5             splitting by a chiropractor; providing criminal 
  1.6             penalties; amending Minnesota Statutes 2001 
  1.7             Supplement, section 148.10, subdivision 1; proposing 
  1.8             coding for new law in Minnesota Statutes, chapter 148. 
  1.9   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.10     Section 1.  [148.095] [FIRMS NOT TO PRACTICE.] 
  1.11     Subdivision 1.  [UNLAWFUL PRACTICE; PENALTY.] (a) It is 
  1.12  unlawful in Minnesota for any firm, other than one organized 
  1.13  pursuant to chapter 319B, to: 
  1.14     (1) practice chiropractic; 
  1.15     (2) hold itself out or advertise itself in any way as being 
  1.16  entitled to practice chiropractic; or 
  1.17     (3) receive compensation derived from the practice or 
  1.18  performance of chiropractic by any person, whether that person 
  1.19  is licensed to practice chiropractic or not. 
  1.20     (b) Any firm violating the provisions of this section is 
  1.21  guilty of a gross misdemeanor and must be fined not more than 
  1.22  $3,000 for each offense.  Each day that this section is violated 
  1.23  is a separate offense. 
  1.24     Subd. 2.  [TRANSFER OF OWNERSHIP INTEREST UPON DEATH OF 
  1.25  OWNER.] Notwithstanding section 319B.08, a chiropractic firm has 
  1.26  24 months after the death of an owner before all of the owner's 
  1.27  ownership interest must be acquired by the practice, by persons 
  2.1   permitted to own the ownership interest, or by some combination. 
  2.2      Sec. 2.  Minnesota Statutes 2001 Supplement, section 
  2.3   148.10, subdivision 1, is amended to read: 
  2.4      Subdivision 1.  [GROUNDS.] (a) The state board of 
  2.5   chiropractic examiners may refuse to grant, or may revoke, 
  2.6   suspend, condition, limit, restrict or qualify a license to 
  2.7   practice chiropractic, or may cause the name of a person 
  2.8   licensed to be removed from the records in the office of the 
  2.9   court administrator of the district court for: 
  2.10     (1) Advertising that is false or misleading; that violates 
  2.11  a rule of the board; or that claims the cure of any condition or 
  2.12  disease. 
  2.13     (2) The employment of fraud or deception in applying for a 
  2.14  license or in passing the examination provided for in section 
  2.15  148.06 or conduct which subverts or attempts to subvert the 
  2.16  licensing examination process.  
  2.17     (3) The practice of chiropractic under a false or assumed 
  2.18  name or the impersonation of another practitioner of like or 
  2.19  different name.  
  2.20     (4) The conviction of a crime involving moral turpitude.  
  2.21     (5) The conviction, during the previous five years, of a 
  2.22  felony reasonably related to the practice of chiropractic.  
  2.23     (6) Habitual intemperance in the use of alcohol or drugs.  
  2.24     (7) Practicing under a license which has not been renewed.  
  2.25     (8) Advanced physical or mental disability.  
  2.26     (9) The revocation or suspension of a license to practice 
  2.27  chiropractic; or other disciplinary action against the licensee; 
  2.28  or the denial of an application for a license by the proper 
  2.29  licensing authority of another state, territory or country; or 
  2.30  failure to report to the board that charges regarding the 
  2.31  person's license have been brought in another state or 
  2.32  jurisdiction.  
  2.33     (10) The violation of, or failure to comply with, the 
  2.34  provisions of sections 148.01 to 148.105, the rules of the state 
  2.35  board of chiropractic examiners, or a lawful order of the board. 
  2.36     (11) Unprofessional conduct.  
  3.1      (12) Being unable to practice chiropractic with reasonable 
  3.2   skill and safety to patients by reason of illness, professional 
  3.3   incompetence, senility, drunkenness, use of drugs, narcotics, 
  3.4   chemicals or any other type of material, or as a result of any 
  3.5   mental or physical condition, including deterioration through 
  3.6   the aging process or loss of motor skills.  If the board has 
  3.7   probable cause to believe that a person comes within this 
  3.8   clause, it shall direct the person to submit to a mental or 
  3.9   physical examination.  For the purpose of this clause, every 
  3.10  person licensed under this chapter shall be deemed to have given 
  3.11  consent to submit to a mental or physical examination when 
  3.12  directed in writing by the board and further to have waived all 
  3.13  objections to the admissibility of the examining physicians' 
  3.14  testimony or examination reports on the ground that the same 
  3.15  constitute a privileged communication.  Failure of a person to 
  3.16  submit to such examination when directed shall constitute an 
  3.17  admission of the allegations, unless the failure was due to 
  3.18  circumstances beyond the person's control, in which case a 
  3.19  default and final order may be entered without the taking of 
  3.20  testimony or presentation of evidence.  A person affected under 
  3.21  this clause shall at reasonable intervals be afforded an 
  3.22  opportunity to demonstrate that the person can resume the 
  3.23  competent practice of chiropractic with reasonable skill and 
  3.24  safety to patients.  
  3.25     In addition to ordering a physical or mental examination, 
  3.26  the board may, notwithstanding section 13.384, 144.651, or any 
  3.27  other law limiting access to health data, obtain health data and 
  3.28  health records relating to a licensee or applicant without the 
  3.29  licensee's or applicant's consent if the board has probable 
  3.30  cause to believe that a doctor of chiropractic comes under this 
  3.31  clause.  The health data may be requested from a provider, as 
  3.32  defined in section 144.335, subdivision 1, paragraph (b), an 
  3.33  insurance company, or a government agency, including the 
  3.34  department of human services.  A provider, insurance company, or 
  3.35  government agency shall comply with any written request of the 
  3.36  board under this subdivision and is not liable in any action for 
  4.1   damages for releasing the data requested by the board if the 
  4.2   data are released pursuant to a written request under this 
  4.3   subdivision, unless the information is false and the provider or 
  4.4   entity giving the information knew, or had reason to believe, 
  4.5   the information was false.  Information obtained under this 
  4.6   subdivision is classified as private under sections 13.01 to 
  4.7   13.87.  
  4.8      In any proceeding under this clause, neither the record of 
  4.9   proceedings nor the orders entered by the board shall be used 
  4.10  against a person in any other proceeding.  
  4.11     (13) Aiding or abetting an unlicensed person in the 
  4.12  practice of chiropractic, except that it is not a violation of 
  4.13  this clause for a doctor of chiropractic to employ, supervise, 
  4.14  or delegate functions to a qualified person who may or may not 
  4.15  be required to obtain a license or registration to provide 
  4.16  health services if that person is practicing within the scope of 
  4.17  the license or registration or delegated authority.  
  4.18     (14) Improper management of health records, including 
  4.19  failure to maintain adequate health records as described in 
  4.20  clause (18), to comply with a patient's request made under 
  4.21  section 144.335 or to furnish a health record or report required 
  4.22  by law.  
  4.23     (15) Failure to make reports required by section 148.102, 
  4.24  subdivisions 2 and 5, or to cooperate with an investigation of 
  4.25  the board as required by section 148.104, or the submission of a 
  4.26  knowingly false report against another doctor of chiropractic 
  4.27  under section 148.10, subdivision 3.  
  4.28     (16) Splitting fees, or promising to pay a portion of a fee 
  4.29  or a commission, or accepting a rebate.  
  4.30     (17) Revealing a privileged communication from or relating 
  4.31  to a patient, except when otherwise required or permitted by law.
  4.32     (18) Failing to keep written chiropractic records 
  4.33  justifying the course of treatment of the patient, including, 
  4.34  but not limited to, patient histories, examination results, test 
  4.35  results, and X-rays.  Unless otherwise required by law, written 
  4.36  records need not be retained for more than seven years and 
  5.1   X-rays need not be retained for more than four years.  
  5.2      (19) Exercising influence on the patient or client in such 
  5.3   a manner as to exploit the patient or client for financial gain 
  5.4   of the licensee or of a third party which shall include, but not 
  5.5   be limited to, the promotion or sale of services, goods, or 
  5.6   appliances.  
  5.7      (20) Gross or repeated malpractice or the failure to 
  5.8   practice chiropractic at a level of care, skill, and treatment 
  5.9   which is recognized by a reasonably prudent chiropractor as 
  5.10  being acceptable under similar conditions and circumstances.  
  5.11     (21) Delegating professional responsibilities to a person 
  5.12  when the licensee delegating such responsibilities knows or has 
  5.13  reason to know that the person is not qualified by training, 
  5.14  experience, or licensure to perform them.  
  5.15     (b) For the purposes of paragraph (a), clause (2), conduct 
  5.16  that subverts or attempts to subvert the licensing examination 
  5.17  process includes, but is not limited to:  (1) conduct that 
  5.18  violates the security of the examination materials, such as 
  5.19  removing examination materials from the examination room or 
  5.20  having unauthorized possession of any portion of a future, 
  5.21  current, or previously administered licensing examination; (2) 
  5.22  conduct that violates the standard of test administration, such 
  5.23  as communicating with another examinee during administration of 
  5.24  the examination, copying another examinee's answers, permitting 
  5.25  another examinee to copy one's answers, or possessing 
  5.26  unauthorized materials; or (3) impersonating an examinee or 
  5.27  permitting an impersonator to take the examination on one's own 
  5.28  behalf.  
  5.29     (c) For the purposes of paragraph (a), clauses (4) and (5), 
  5.30  conviction as used in these subdivisions includes a conviction 
  5.31  of an offense that if committed in this state would be deemed a 
  5.32  felony without regard to its designation elsewhere, or a 
  5.33  criminal proceeding where a finding or verdict of guilt is made 
  5.34  or returned but the adjudication of guilt is either withheld or 
  5.35  not entered. 
  5.36     (d) For the purposes of paragraph (a), clauses (4), (5), 
  6.1   and (6), a copy of the judgment or proceeding under seal of the 
  6.2   administrator of the court or of the administrative agency which 
  6.3   entered the same shall be admissible into evidence without 
  6.4   further authentication and shall constitute prima facie evidence 
  6.5   of its contents. 
  6.6      (e) For the purposes of paragraph (a), clause (11), 
  6.7   unprofessional conduct means any unethical, deceptive or 
  6.8   deleterious conduct or practice harmful to the public, any 
  6.9   departure from or the failure to conform to the minimal 
  6.10  standards of acceptable chiropractic practice, or a willful or 
  6.11  careless disregard for the health, welfare or safety of 
  6.12  patients, in any of which cases proof of actual injury need not 
  6.13  be established.  Unprofessional conduct shall include, but not 
  6.14  be limited to, the following acts of a chiropractor: 
  6.15     (1) gross ignorance of, or incompetence in, the practice of 
  6.16  chiropractic; 
  6.17     (2) engaging in conduct with a patient that is sexual or 
  6.18  may reasonably be interpreted by the patient as sexual, or in 
  6.19  any verbal behavior that is seductive or sexually demeaning to a 
  6.20  patient; 
  6.21     (3) performing unnecessary services; 
  6.22     (4) charging a patient an unconscionable fee or charging 
  6.23  for services not rendered; 
  6.24     (5) directly or indirectly engaging in threatening, 
  6.25  dishonest, or misleading fee collection techniques; 
  6.26     (6) perpetrating fraud upon patients, third-party payors, 
  6.27  or others, relating to the practice of chiropractic, including 
  6.28  violations of the Medicare or Medicaid laws or state medical 
  6.29  assistance laws; 
  6.30     (7) advertising that the licensee will accept for services 
  6.31  rendered assigned payments from any third-party payer as payment 
  6.32  in full, if the effect is to give the impression of eliminating 
  6.33  the need of payment by the patient of any required deductible or 
  6.34  copayment applicable in the patient's health benefit plan; or 
  6.35  advertising a fee or charge for a service or treatment different 
  6.36  from the fee or charge the licensee submits to a third-party 
  7.1   payer for that service or treatment.  As used in this clause, 
  7.2   "advertise" means solicitation by the licensee by means of 
  7.3   handbills, posters, circulars, motion pictures, radio, 
  7.4   newspapers, television, or in any other manner.  In addition to 
  7.5   the board's power to punish for violations of this clause, 
  7.6   violation of this clause is also a misdemeanor; 
  7.7      (8) accepting for services rendered assigned payments from 
  7.8   any third-party payer as payment in full, if the effect is to 
  7.9   eliminate the need of payment by the patient of any required 
  7.10  deductible or copayment applicable in the patient's health 
  7.11  benefit plan, except as hereinafter provided; or collecting a 
  7.12  fee or charge for a service or treatment different from the fee 
  7.13  or charge the licensee submits to a third-party payer for that 
  7.14  service or treatment, except as hereinafter provided.  This 
  7.15  clause is intended to prohibit offerings to the public of the 
  7.16  above listed practices and those actual practices as well, 
  7.17  except that in instances where the intent is not to collect an 
  7.18  excessive remuneration from the third-party payer but rather to 
  7.19  provide services at a reduced rate to a patient unable to afford 
  7.20  the deductible or copayment, the services may be performed for a 
  7.21  lesser charge or fee.  The burden of proof for establishing that 
  7.22  this is the case shall be on the licensee; and 
  7.23     (9) any other act that the board by rule may define.  
  7.24     (f) For the purposes of paragraph (a), clause (16), 
  7.25  splitting fees, or promising to pay a portion of a fee or a 
  7.26  commission, or accepting a rebate includes but is not limited to:
  7.27     (1) paying, offering to pay, receiving, or agreeing to 
  7.28  receive a commission, rebate, remuneration, or gift, the 
  7.29  cumulative value of which exceeds $100 in any calendar year, 
  7.30  primarily for the direct or indirect referral of patients or the 
  7.31  direct or indirect ordering of diagnostic or therapeutic 
  7.32  services; 
  7.33     (2) dividing fees with another health care professional or 
  7.34  professional firm, unless the fee division is in direct 
  7.35  proportion to the services provided and responsibilities assumed 
  7.36  directly by each professional and the chiropractor has disclosed 
  8.1   the terms of the fee division to the patient.  The disclosure of 
  8.2   the terms of the fee division must (i) be provided to the 
  8.3   patient in writing and before the fee division takes place; (ii) 
  8.4   reasonably inform the patient of the chiropractor's financial 
  8.5   and profit interests in the professional or firm to which the 
  8.6   chiropractor is making the referral; and (iii) include a 
  8.7   statement that the patient is free to choose another health care 
  8.8   professional or professional firm to provide the services for 
  8.9   which the referral is being made; 
  8.10     (3) the employment of persons commonly referred to as 
  8.11  cappers, runners, or steerers, or of any other person who is 
  8.12  paid to solicit persons who have been involved in automobile 
  8.13  accidents or have sustained other personal injuries, for the 
  8.14  sole purpose of directing these persons to the employing 
  8.15  chiropractor for care; or 
  8.16     (4) paying, refunding money, or providing any other 
  8.17  consideration to any person to entice the person to continue 
  8.18  excessive or unnecessary care after an automobile accident or 
  8.19  other personal injury.