South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
South Carolina Department of Labor, Licensing and Regulation

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Petitioner:
South Carolina Department of Labor, Licensing and Regulation, State Board of Chiropractic Examiners

In Re:
Proposed Regulation
 
DOCKET NUMBER:
98-ALJ-11-0326-RH

APPEARANCES:
n/a
 

ORDERS:

PUBLIC HEARING REPORT OF THE ADMINISTRATIVE LAW JUDGE

This matter comes before me pursuant to S.C. Code Ann. § 1-23-111 (Supp. 1997) for the purposes of conducting a public hearing regarding the promulgation of a proposed regulation and determining the need and reasonableness of the proposed regulation. The proposed regulation is an amendment to Chapter 25 of the State regulations governing chiropractic practice and is intended to update and clarify existing regulations of the Board of Chiropractic Examiners authorized by S.C. Code Ann. § 40-9-30 (Supp. 1997). The public hearing was conducted on August 13, 1998, at the Administrative Law Judge Division, in Columbia, South Carolina, and was attended by agency representatives and members of the public. The agency and interested persons presented testimony and written materials relating to the proposed regulation, all of which were incorporated into the record of the hearing. In addition, the Court allowed written comments, filed with the Court no later than twenty days after the hearing to also be incorporated into the hearing record.

The following persons participated in the public hearing:

Dr. Henry Hulteen, Chairman of the State Board of Chiropractic Examiners;

Dr. George A. Auger, President of the Federation of Straight Chiropractors of South Carolina;

Dr. David B. Koch, President of Sherman College of Straight Chiropractic;

Dr. Leslie Wise, Dean of Clinical Sciences at Sherman College of Straight Chiropractic;

Dr. Dick Plummer, member of the State Board of Chiropractic Examiners and Vice President of the Federation of Straight Chiropractors of South Carolina;



Mr. George L. Johnson, Vice President of Corporate Communications/Public Affairs for Blue Cross and Blue Shield of South Carolina;

Dr. Bobby Findley, member of the State Board of Chiropractic Examiners;

Dr. William Decken, member of the State Board of Chiropractic Examiners;

Ms. Alana T. Holmes, Department of License, Labor, and Regulation Administrator for the State Board of Chiropractic Examiners.

Upon review and analysis of the proposed regulation and the comments of the agency and interested persons, I conclude that the Board of Chiropractic Examiners is within its general authority to promulgate this regulation and that the overall purpose of the proposed regulation is reasonable and needed; however, two separate provisions of the proposed regulation do not meet the requisite statutory standards of reasonableness and need and must be amended or deleted. Accordingly, I recommend that the Board make minor modifications to section 25-6(A) of the proposed regulation, as described herein, before it is submitted to the legislature for approval.

PURPOSE OF THE PROPOSED REGULATION

S.C. Code Ann. § 40-9-30(D)(3) (Supp. 1997) authorizes the Board of Chiropractic Examiners to adopt and revise regulations necessary to carry out the provisions of Chapter 9, Title 40, including, but not limited to, regulations relating to patient care and treatment, solicitation of patients, and advertising.

As stated in the preamble to the proposed regulation, contained in Document No. 2326 of the State Register, Vol. 22, Issue 6, dated June 26, 1998, the proposed regulation is intended to revise existing regulations relating to examination review, procedures for applicants applying for license examination, diagnostic and testing procedures, license renewal, patient records, and specialty certification requirements, and add provisions dealing with endorsement/reciprocity, volunteer licenses, waiver of continuing education for medical disability, license for claims reviewers, license posting requirements, and cooling off period for chiropractor/patient relationship. The Board states that the proposed regulation is needed to better protect the public health, safety, and welfare, and will not result in any additional cost.



PURPOSE OF PUBLIC HEARING AND ROLE OF THE ALJ

The role of the administrative law judge ("ALJ") in these proceedings is strictly limited to determining the reasonableness and need of the proposed regulation. It is not to question the professional judgment or political wisdom of the Board. Neither is it the ALJ's role to mediate between competing factions of the Board or the chiropractic community over policy decisions.

To determine the reasonableness and need of a proposed regulation, an ALJ must consider a litany of factors, as provided by S.C. Code Ann. §§ 1-23-111(B) and 1-23-115(C)(1) through (11), [excepting items (4) through (8)] (Supp. 1997). An analysis of all provisions of this proposed regulation was performed; however, only those provisions which were the subject of public comment and criticism at the August 13, 1998 public hearing are specifically addressed below. The particular provisions in controversy are considered and discussed below in numerical order.

ISSUES CONSIDERED

Several persons testified in opposition to various portions of the proposed regulation, questioning the reasonableness and need of specific provisions and/or suggesting modifications to the proposed regulation. Opposition came from two general constituencies of the health care community, chiropractors identifying themselves as "straight chiropractors" and the medical insurance and the managed care industry.

A. Proposed R. 25-2(3): Application for Board Examination and Taking National Board Exam.

The proposed regulation requires applicants to have taken and passed all required parts of the National Board of Chiropractic Examiners examination prior to application to the State Board. Because of the testing schedule and the length of time it ordinarily takes for National Board scores to be released, applicants may miss an opportunity to take the State Board exam.

Dr. Koch asserts that the most fair and reasonable approach would be to allow an applicant who has passed Parts I and II of the National Board exam to apply for and take the State Board exam, but not be licensed by the State Board unless and until he or she has also passed Part III of the National Board test.

According to Alana T. Holmes, the State Board's Administrator, the Board is interested in following the most efficient, cost effective, and legally defensible application and licensing method. There is substantial cost involved with administering a practical examination. If applicants have already taken and passed all portions of the National exam, the applicant should be better prepared for the State exam, and fewer overall retakes should be necessary. Additionally, it is fundamental that an applicant for any type of license must meet all licensure prerequisites prior to taking a licensure exam. It is a waste of time and resources to administer tests for applicants which will never meet all required qualifications for licensure.

I find the Board's application and examination procedure reasonable and necessary. If scheduling conflicts prevent some applicants from expeditiously completing all exams and being licensed without undue delay, maybe the Board should consider revisiting its testing schedule.

B. Proposed R. 25-3(C): License Exam Regrade Procedure.

Under current law, an applicant who takes and fails the Board's written examination may, upon payment of a fee, review his or her exam questions, answers, papers, grade, and grading key. If after such review the applicant believes an error was committed in the grading of the exam, he or she may submit documentation to that effect to the full Board for consideration. The proposed regulation allows a failing applicant to request an exam regrade but does not allow an applicant to actually review the exam papers, questions, answers or grading key.

The Board states that the reason for altering the regrade process is to protect the integrity of the exam and to adopt procedures which are consistent with other states and the National Board. In the past, the full Board was inundated with requests for exam reviews. By allowing applicants to see test questions and answers, exam materials become publicly circulated, and the Board must continuously revise the exam.

While the proposed regulation does not provide an applicant with direct access to his or her exam, the proposed regulation does afford a failing applicant a mechanism for having his or her exam reviewed and regraded. Furthermore, applicants are required to retake only those portions of the exam which they fail, not the entire exam. Applicants' rights are adequately protected under the proposed process, and the Board's justifications for limiting the regrading process is reasonable.

C. Proposed R. 25-5(G)(4): Use of diagnostic equipment and Testing Procedures.

Members of the health insurance and managed care industry assert that this provision is unreasonable and unnecessary on the basis that it sets forth an over broad scope of acceptable chiropractic practice and fails to specify in sufficient detail the diagnostic equipment and tests which a chiropractor may utilize. Current law [S.C. Code Ann. Regs. 25-4(E)(4)] permits a chiropractor to request diagnostic and testing procedures be performed to diagnose and treat chiropractic conditions, but the proposed revision would allow a chiropractor to actually perform those procedures. There is a fear that such an expansion of practice may result in increased health care costs.

It is the Board's position that the new language does not expand a chiropractor's practice authority. I find the arguments against this proposed provision unpersuasive and conclude that the new language is reasonable and necessary.

D. Proposed R. 25-5(H): lack of inclusion of term "Straight Chiropractor" among the accepted terms for those licensed by the Board.

Proposed R. 25-5(H) provides:

Terms and Definitions.

(1) Accepted terms are Chiropractic Physician, D.C., Chiropractor,

Doctor of Chiropractic.

(2) Chiropractors may not refer to themselves as physical therapists

or physiotherapists in any fashion."

There is a difference of professional philosophy and approach between those chiropractors that profess to practice "straight" chiropractic and those who do not. While some chiropractors believe the field of chiropractic includes the diagnosis of medical diseases or conditions, straight chiropractors assert that the field is limited to the correction of vertebral subluxations. The divergence of approach is the source of ongoing debate between the two constituencies and has apparently created a deep division within the chiropractic community.

The proposed regulation does not include "straight" chiropractic as an acceptable or prohibited term for chiropractors licensed by the Board. While "straight" is not mentioned or defined, it is uncontroverted that chiropractors of the straight philosophy are subject to the same licensing requirements as any other chiropractor and are not prohibited to practice according to their philosophical approach. While other professional organizations and licensing boards may recognize straight chiropractic as a distinct category of chiropractic worthy of separate professional identification, the lack of use of the term "straight" in the proposed regulations is not unreasonable, and inclusion of the term is not necessary. The Board issues only one type of chiropractic license without any distinction to the particular approach practiced by the licensee. If the proposed regulation is approved, straight chiropractors will be able to continue to practice their form of chiropractic as they have under the past and present regulations of the Board.

E. Proposed R. 25-6(A)(1)

Proposed R. 26-6(A)(1) rewrites current S.C. Code Ann. Regs. 25-5(A)(1), which delineates the permissible and impermissible practices of licensed chiropractors. Interested persons as the public hearing pointed out one phrase in the current law which was omitted in the proposed regulation, one term which was carried over but remains misspelled, and one term which is in neither version but should be included. The relevant portions of proposed R. 25-6(A)(1) provide:

Limitation of Practice. Committing any act outside the limitation of practice in this State defined as follows: Persons licensed by the Board shall be limited in their practice to the care and performance of therapeutic treatment of patients, the performance of such procedures as are normally followed in giving physical examinations, .... Patient care shall be conducted with due regard for environmental, hygiene sanitation, rehabilitation and physiological therapeutic procedures designed to assist in the restoration and maintenance of neurological and osseous integrity. None of these diagnostic or therapeutic procedures shall include ... catherization with a needle....

The contested portions are addressed separately below:

1. Proposed R. 25-6(A)(1): omission of phrase "hygienic treatment" in description of permissible practices of a chiropractor. As drafted, the proposed regulation limits a licensed chiropractor's practice to the therapeutic treatment of patients. At the public hearing, Drs. Auger and Koch explained that all chiropractors utilize certain procedures as preventive means of health maintenance, which are not intended to treat an existing illness. Dr. Hulteen stated that the Board was unopposed to the inclusion of hygienic treatment as an approved practice of chiropractors.

2. Proposed R. 26-6(A)(1): Omission of "chiropractic" preceding "physical examination" in Limitation of Practice provision. Proposed R. 25-6(A)(1) provides, inter alia, "... the performance of such procedures as are normally followed in giving physical examinations...." In contrast, current R. 25-5(A)(1) provides, ""... the performance of such procedures as are normally followed in giving chiropractic physical examinations...." Dr. Wise claims it is necessary to maintain the use of the phrase "chiropractic" to qualify the type of physical examinations allowed by the regulation. Dr. Hulteen explained that the Board considered "chiropractic" an unnecessary adjective in that particular provision.

Given the specificity of the laundry list of procedures that chiropractors are allowed to perform and prohibited to perform, I conclude that it is reasonable and necessary to maintain the use of the adjective "chiropractic" in relation to physical examinations in the proposed regulation.

3. Proposed R. 25-6(A)(1): use of term "catherization with a needle" in Limitation of Practice provision. Current R. 25-5(A)(1) prohibits a chiropractor from conducting a variety of specific procedures, including "catherization with a needle." Proposed R. 25-6(A)(1) contains the identical language. Dr. David Auger testified at the hearing that "catherization" is an improper term and should be replaced with the correct term, "catheterization." Subsequently, Dr. Hulteen, as Chairman of the State Board, requested this tribunal to remove the term from the proposed regulation without replacement by another term.

Whether a proper medical term or not, the phrase "catherization" has been used in the chiropractic regulations since 1980. There does not appear to have been any controversy concerning the term until the issue was raised by Dr. Auger in these proceedings. Because of the present disagreement over its spelling and meaning precipitated by the public comments to the proposed regulation, the Board would be well served to examine and review the use of that term in its regulations and decide if and how it should be used and/or spelled. Until such time, it is unreasonable and unnecessary for the ALJD to make a finding or conclusion regarding its continued inclusion in the Board's regulations.

Accordingly, it is reasonable and necessary to modify proposed R. 25-6(A)(1) to read, inter alia, as follows:

Limitation of Practice. Committing any act outside the limitation of practice

in this State defined as follows: Persons licensed by the Board shall be limited in their

practice to the care and performance of therapeutic or hygienic treatment of patients,

the performance of such procedures as are normally followed in giving chiropractic

physical examinations,... (new language underlined).

F. Proposed R. 25-6(A)(14): License required for claims reviewers.

This new provision provides that the practice of chiropractic in the State of South Carolina includes the utilization and claims review process performed by insurance claims reviewers when the review involves the rendering of of an opinion on necessity, utilization, or quality of treatment. It requires all claims reviewers reviewing claims for chiropractic care in South Carolina to be licensed by the Board as chiropractors.

Blue Cross and Blue Shield of South Carolina opposes the proposal on several grounds. First and foremost, Blue Cross asserts that the Board does not have the statutory authority to require claims reviewers to obtain a South Carolina chiropractic license. Blue Cross argues that the actions of claims reviewers are not the practice of chiropractic, but instead are related to the regulation of insurance companies and other third party payers. S.C. Code Ann. § 40-9-30 (Supp. 1997) allows the Board to adopt regulations, not inconsistent with the law, relating to patient treatment and care, solicitation of patients, and advertising. The Board is not vested with any authority to regulate the review of insurance claims. See S.C. Code Ann. § 40-9-10, et seq. (Supp. 1997). Every insurer doing business in South Carolina must be licensed and supervised by the South Carolina Department of Insurance ("DOI"). S.C. Code Ann. § 38-5-10 (Supp. 1997). DOI is responsible for the exclusive supervision and regulation of the business of insurance and the administration and enforcement of the insurance laws of this State. S.C. Code Ann. § 38-3-110 (Supp. 1997).

I conclude that the Board's proposed regulation requiring insurance claims reviewers to be licensed chiropractors is an unlawful exercise of the regulatory authority reserved for DOI. While the claims review decisions of insurance companies involved in reviewing chiropractic claims may affect patient treatment, claims reviewers do not engage directly in patient care or treatment. Therefore, proposed R. 25-6(A)(14) is unnecessary and unreasonable and should be excised from the proposed regulation.

G. Proposed R. 25-6(C): Specialty Certification.

The proposed regulation prohibits a chiropractor from holding himself or herself out as a specialist in any chiropractic field unless he or she has "received certification from a specialty council approved by the American Chiropractic Association or International Chiropractors Association, or a specialty taught by a chiropractic college accredited by the Council on Chiropractic Education, or its equivalent specialty board or council or specialty approved by the Board." Members of the Federation of Straight Chiropractors ("FSCO") assert that their organization should also be specifically included as an entity which may certify specialists.

While the FSCO may be a reputable organization, fully qualified to examine and certify specialists, it is not entitled as a matter of right to be among those entities with automatic certification privileges in South Carolina, nor should it be arbitrarily omitted. Dr. Plummer, a member of the FSCO and a State Board member, indicated that during the promulgation of the proposed regulations, the Board considered inclusion of the FSCO, but that a majority of the divided Board opposed it.

Although the specialty certification by FSCO is not automatically recognized by the Board, the proposed regulation provides a method for Board to approve such certification, by the FSCO or any other entity, without amendment of the Board's regulations. I conclude that proposed R. 25-6(C) is reasonable and necessary as drafted.

FINDINGS AND CONCLUSIONS

Based upon the statements, testimony, exhibits, written comments, and applicable law, I find and conclude the following:

  1. Pursuant to S.C. Code Ann. § 1-23-111(B) (Supp. 1997), this Court must make findings as to the need and reasonableness of the proposed regulation and may include modifications to the proposed regulation in the absence of either.
  2. By Document No. 2326 of the State Register, Vol. 22, Issue 6, dated June 26, 1998, the State Board of Chiropractic Examiners seeks to amend Chapter 25 of the S.C. Code Regs., relating to the practice of chiropractic by revising existing regulations relating to examination review, procedures for applicants applying for license examination, diagnostic and testing procedures, license renewal, patient records, and specialty certification requirements, and adding new provisions dealing with endorsement/reciprocity, volunteer licenses, waiver of continuing education for medical disability, license for claims reviewers, license posting requirements, and cooling off period for chiropractor/patient relationship.
  3. The Notice of Drafting of the proposed regulation was published in the State Register on May 22, 1998.
  4. The Board filed an Agency Transmittal Form with the Administrative Law Judge Division on May 28, 1998, for the purpose of having a public hearing conducted on the proposed regulation.
  5. The Notice of Proposed Regulation was published in the State Register on June 26, 1998, which included a synopsis of the proposed regulation and the Notice of Opportunity for Public Comment and Hearing.
  6. The Board filed its Statement of Need and Reasonableness with the ALJD on July 31, 1998, in compliance with S.C. Code Ann. § 1-23-111 (Supp. 1997) and ALJD Rule 45, the promulgating agency is required to file with the Court its Statement of Need and Reasonableness and other documents at least ten (10) days prior to the public hearing.
  7. The Board complied with all applicable procedures for publication of notice of proposed promulgation of regulations and public participation set forth in § 1-23-110 (Supp. 1997).
  8. A public hearing to allow agency presentation and public comment was conducted before Administrative Law Judge Stephen P. Bates at the Administrative Law Judge Division in Columbia, South Carolina, on August 13, 1998, pursuant to S.C. Code Ann. § 1-23-111 (Supp. 1997).
  9. Oral testimony, exhibits, and written comments were received by the Court from the agency and interested persons at the August 13, 1998 hearing.
  10. Subsequent written comments and responses were received by the Court no later than twenty days after the hearing, at which time the record of the hearing was officially closed, with all materials received by the Court incorporated into the record.
  11. At the regulation hearing before an administrative law judge, the agency shall submit into the record the jurisdictional documents, including the statement of need and reasonableness as determined by the agency based on an analysis of the factors listed in § 1-23-115(C)(1) through (11), except items (4) through (8), and any written exhibits in support of the proposed regulation. S.C. Code Ann. § 1-23-111(A) (Supp. 1997).
  12. Pursuant to S.C. Code Ann. § 1-23-111(B) (Supp. 1997), this Court must make findings as to the need and reasonableness of the proposed regulation and may include modifications to the proposed regulation in the absence of either.
  13. Pursuant to S.C. Code Ann. §§ 1-23-111(B) and 1-23-115(C)(1) (Supp. 1997), the following factors must be considered in the need and reasonableness analysis [listed in S.C. Code Ann. § 1-23-115(C)(1) through (11), except items (4) through (8)]:

(1) a description of the regulation, the purpose of the regulation, the legal authority for the regulation, and the plan for implementing the regulation;

(2) a determination of the need for and reasonableness of the regulation as determined by the agency based on an analysis of the factors listed in this subsection and the expected benefit of the regulation;

(3) a determination of the costs and benefits associated with the regulation and an explanation of why the regulation is considered to be the most cost-effective, efficient, and feasible means for allocating public and private resources and for achieving the stated purpose;

(9) the uncertainties associated with the estimation of particular benefits and burdens and the difficulties involved in the comparison of qualitatively and quantitatively dissimilar benefits and burdens. A determination of the need for the regulation shall consider qualitative and quantitative benefits and burdens;

(10) the effect of the regulation on the environment and public health;

(11) the detrimental effect on the environment and public health if the regulation is not implemented. An assessment report must not consider benefits or burdens on out-of-state political bodies or businesses. The assessment of benefits and burdens which cannot be precisely quantified may be expressed in qualitative terms. This subsection must not be interpreted to require numerically precise cost-benefit analysis.

  1. In addition to the factors enumerated above, the ALJ may also consider other relevant factors identified in his order in his determination of need and reasonableness. S.C. Code Ann. § 1-23-111(C).
  2. The State Board of Chiropractic Examiners, a component of the South Carolina Department of Labor, Licensing and Regulation, is authorized to adopt and revise regulations necessary to carry out the provisions of Chapter 9, Title 40, including, but not limited to, regulations relating to patient care and treatment, solicitation of patients, and advertising, pursuant to S.C. Code Ann. § 40-9-30(D)(3) (Supp. 1997) and §§1-23-10, et seq. (1986 & Supp. 1995).
  3. An agency is implicitly authorized to interpret, clarify and explain statutes by prescribing regulations "to fill in the details" for the complete and consistent operation and enforcement of the law within its expressed general purpose. A regulation is valid as long as it is reasonably related to the purpose of the enabling legislation. Young v. SCDHPT, 287 S.C. 108, 336 S.E.2d 879 (Ct. App. 1985). A regulation which is beyond the authorization of the agency's enabling legislation or which materially alters or adds to the law, however, is invalid. Society of Professional Journalists v. Sexton, 283 S.C. 563, 324 S.E.2d 313 (1984); Banks v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E.2d 496 (1943).
  4. "Reasonable" is defined as "Fair, proper, just, moderate, suitable under the circumstances. . . . Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable." Black's Law Dictionary, 1265 (6th ed. 1990). The word has been further defined to mean "agreeable to reason under the facts and circumstances of the case before the Court." Ellis v. Taylor, 311 S.C. 66, 427 S.E.2d 678 (Ct. App. 1992). The question of whether a regulation is reasonable should focus on whether it has a rational basis or is rationally related to the end sought to be achieved. Hunter & Walden Co. v. S.C. State Licensing Board for Contractors, 272 S.C 211, 251 S.E.2d 186 (1978).
  5. Proposed R. 25-2(3), relating to application for board examination and taking national board exams, is reasonable and needed.
  6. Proposed R. 25-3(C), relating to the procedure for license exam regrading, is reasonable and needed.
  7. Proposed R. 25-5(G)(4), relating to the use of diagnostic equipment and Testing Procedures, is reasonable and needed.
  8. Proposed R. 25-5(H), which defines the accepted terms for those licensed to engage in chiropractic practice, is reasonable and needed.
  9. Proposed R. 26-6(A)(1), which rewrites current S.C. Code Ann. Regs. 25-5(A)(1) and defines the limitations of practice for chiropractors, fails to meet all of the requisite standards for reasonableness and need.
  10. Based upon the public health considerations set forth in S.C. Code Ann. § 1-23-115(C)(10) and (11) (Supp. 1997), proposed R. 26-6(A)(1) unreasonably fails to include hygienic treatment as an approved practice of chiropractors.
  11. Based upon the public health considerations set forth in S.C. Code Ann. § 1-23-115(C)(10) and (11) (Supp. 1997), proposed R. 25-6(A)(1) also unreasonably fails to include the adjective "chiropractic" in describing and limiting the type of physical examinations allowed to be performed by a chiropractor.
  12. It is reasonable and necessary to allow the term "catherization with a needle" to remain in proposed R. 25-6(A)(1), even though the term may be improperly spelled or used, given the fact that the term has been used in the chiropractic regulations since 1980, there has been no controversy concerning the term until the issue was raised by Dr. Auger in these proceedings, and there was insufficient information presented to this tribunal to determine the appropriateness of the term.
  13. Proposed R. 25-6(A)(1) would be reasonable and necessary if amended to read (with suggested new language underlined):

Limitation of Practice. Committing any act outside the limitation of practice in this State defined as follows: Persons licensed by the Board shall be limited in their practice to the care and performance of therapeutic or hygienic treatment of patients, the performance of such procedures as are normally followed in giving chiropractic physical examinations, the x-ray of patient and such other procedures as are generally used in the practice of chiropractic. Such other procedures as are generally used in the practice of chiropractic shall be limited, however, to the use of diagnostic and therapeutic procedures, the adjustment and manipulation of articulations and treatment of inter-segmental disorders for alleviation of related neurological, muscular, an osseous joint complex aberrations. Patient care shall be conducted with due regard for environmental, hygiene sanitation, rehabilitation and physiological therapeutic procedures designed to assist in the restoration and maintenance of neurological and osseous integrity. None of these diagnostic or therapeutic procedures shall include the use of drugs, surgery, cauterization, desiccation or coagulation of tissues, rectal examinations, gynecological examinations, obstetrics, catherization with a needle, injecting of dyes for radiological procedures, lumbar puncture to obtain spinal fluid, treatment of cancer with x-ray therapy.

  1. Proposed R. 25-6(A)(14), requiring licenses for claims reviewers, is unreasonable and unneeded and is in violation of in S.C. Code Ann. § 1-23-115(C)(1), in that the Board is not vested with the authority to regulate the review of insurance claims. See S.C. Code Ann. § 40-9-10, et seq. (Supp. 1997). That regulatory authority is reserved for the South Carolina Department of Insurance. See S.C. Code Ann. §§ 38-5-10 and 38-3-110 (Supp. 1997).
  2. Proposed R. 25-6(A)(14) is unnecessary and unreasonable and should be removed in its entirety from the proposed regulation.
  3. Proposed R. 25-6(C), relating to specialty certification is reasonable and needed.
  4. All sections of the proposed regulation not specifically addressed in this report are deemed reasonable and needed.
  5. Pursuant to S.C. Code Ann. § 1-23-111(C) (Supp. 1997), if the presiding administrative law judge determines that the need for or reasonableness of the proposed regulation has not been established, the agency must elect to:

(a) follow the suggested modifications of the administrative law

judge and submit the modified proposal for legislative approval;

(b) not modify the proposed regulation but submit the proposed regulation as originally drafted for legislative approval;

(c) withdraw the proposed regulation.



RECOMMENDATION

Generally, I find that the Board is within its authority to promulgate this regulation and that the overall purpose of the proposed regulation is reasonable and needed; however, I also conclude that certain isolated provisions of the proposed regulation do not meet the requisite statutory standards of reasonableness and need and must be amended or deleted. Therefore, it is recommended that the proposed regulation should be modified by the Board prior to submission to the General Assembly to address those specific offending provisions. With minor modification, the proposed regulation will provide a comprehensive regulatory scheme for the licensure and regulation of chiropractors in South Carolina. The wisdom of approving the proposed regulation is not a matter for this Court to decide. That issue is one reserved for consideration by the General Assembly.

For the foregoing reasons, I recommend that Document 2326, the proposed regulation proposed by the South Carolina Department of Labor, Licensing and Regulation, Board of Chiropractic Examiners, to amend Chapter 25 of the S.C. Code Regs., be modified as follows:

1. Amend proposed R. 25-6(A)(1) to read as follows:

Limitation of Practice. Committing any act outside the limitation of practice in this State defined as follows: Persons licensed by the Board shall be limited in their practice to the care and performance of therapeutic or hygienic treatment of patients, the performance of such procedures as are normally followed in giving chiropractic physical examinations, the x-ray of patient and such other procedures as are generally used in the practice of chiropractic. Such other procedures as are generally used in the practice of chiropractic shall be limited, however, to the use of diagnostic and therapeutic procedures, the adjustment and manipulation of articulations and treatment of inter-segmental disorders for alleviation of related neurological, muscular, an osseous joint complex aberrations. Patient care shall be conducted with due regard for environmental, hygiene sanitation, rehabilitation and physiological therapeutic procedures designed to assist in the restoration and maintenance of neurological and osseous integrity. None of these diagnostic or therapeutic procedures shall include the use of drugs, surgery, cauterization, desiccation or coagulation of tissues, rectal examinations, gynecological examinations, obstetrics, catherization with a needle, injecting of dyes for radiological procedures, lumbar puncture to obtain spinal fluid, treatment of cancer with x-ray therapy. (new language underlined).

2. Amend proposed R. 25-6(A) by deleting item R. 25-6(A)(14) in its entirety.

ORDER

IT IS THEREFORE ORDERED that the Board shall consider the findings and recommendations contained herein and elect a course of action as specified in S.C. Code Ann.

§ 1-23-111(C) (Supp. 1997). It is further ordered, pursuant to S.C. Code Ann. § 1-23-630 (Supp. 1995), that if the Board elects to submit the proposed regulation for legislative approval as originally drafted or as modified as recommended herein, a copy of this Order must be submitted to the General Assembly with the proposed regulation.

AND IT IS SO ORDERED.



_____________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE



October 26, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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