HB 415: NC May Change How Chiropractic Is Governed–What You Should Know
An open letter to NC's chiropractic community concerning HB 415
The Board of Examiners has asked the General Assembly to update the laws governing chiropractic in North Carolina. House Bill 415, filed on March 25th, would repeal two statutes, amend six statutes, and create one new statute. All told, the BOE is seeking over fifty separate changes to the chiropractic practice act. Carolina Chiropractors is closely watching HB 415.
The BOE has publicized aspects of the bill it knows will be popular with doctors, but it has not been candid about other parts that could be harmful to the profession. Here is the rest of the story:
WHAT’S GOOD ABOUT 415
The bill would remove two burdensome restrictions on marketing and advertising. Doctors who offer free or reduced rate services would no longer be required to observe a three-day cooling-off period after patients sign treatment contracts, and they would no longer be required to publish the three-day disclaimer in advertisements. The bill would also remove the limitations on promotional giveaways (“enticements”). And the bill would repeal a handful of obsolete items from the menu of disciplinary violations.
WHAT’S NOT GOOD ABOUT 415
Hearing Costs. When the BOE staff files disciplinary charges against a doctor, the doctor has the legal right to demand a formal hearing before the Board, a jury of professional peers. But full Board hearings are expensive; a court reporter must be hired, the Board’s attorney serves as prosecutor, and there can sometimes be expenses for meals and overnight lodging. Hearing costs often run in the thousands of dollars. Under a proposed new statute, G.S. 90-157.4, the BOE would have the power to “charge costs in a disciplinary hearing, including reasonable attorneys’ fees, to the licensee against whom the proceedings were brought.”
The BOE says it needs this power to deter repeat offenders. Fair enough, but the BOE already has the power to deter repeat offenders under G.S. 90-154(c).
There are critical differences between the power the BOE currently enjoys and the power it seeks. Existing law says that hearing costs can only be imposed if a licensee is found guilty. The new law does not require a finding of guilt—even doctors who are found innocent could be taxed with hearing costs. Existing law says that costs can only be imposed if the BOE demonstrates that a licensee’s defense at the hearing “was dilatory or not asserted in good faith.” The new law would allow the BOE to assess costs entirely in its discretion; no findings of foot-dragging or bad faith would be required.
Why would the Board want to expand its power to assess costs? Our fear is that the Board wants to create a new revenue stream. In 2018, the Board switched from in-house counsel to an outside independent contractor. Its legal expenses have doubled and are now averaging $227,000 per year. If it were able to recoup attorney’s fees and other costs from doctors in more disciplinary cases, the BOE would improve its bottom line.
Professional liability insurance does not cover hearing costs; these dollars come from a doctor’s own pocket. But the harm would not be confined to the doctor’s bank account. If the law does not expressly limit the recovery of costs to documented bad faith cases, costs will become a cloud hovering over a doctor’s defense in every case. The BOE will have unfair leverage to coerce settlements, saying to the doctor, in effect, “Sure you can demand a hearing, but you may end up owing us three thousand dollars on top of any other sanctions we impose against you. Why don’t you avoid that risk and just sign this consent order?” Trial before a jury of professional peers would be put out of reach for many doctors.
It is instructive to look at how other healthcare licensing boards handle hearing costs. Including our own, twenty-seven licensing boards are classified by the legislature as “medicine and allied occupations.” Twelve of the twenty-seven have been given the power to recover costs, but none have the power to recover costs from a licensee who has been found innocent. And in two practice acts, costs are expressly defined to exclude board attorney’s fees.
Although the BOE denies that it will misuse the power to impose costs, the fact remains that its proposed statute conflicts with and undermines the safeguards against misuse built into existing law. The absence of legal constraints coupled with a financial incentive to impose costs would create an invitation to abuse. Carolina Chiropractors believes that the current law strikes the right balance between the interests of doctors and the interests of the Board and should not be changed.
Civil Penalties (Fines). Under existing law, the BOE does not have the power to collect fines. That would change under proposed new statute G.S. 90-157.4, which would allow the BOE to “assess a civil penalty not to exceed five hundred dollars per violation.”
There is a fundamental distinction between money collected as fines and money collected as hearing costs. Unlike hearing costs, the BOE would not get to keep the money it collects as fines, which by law must be turned over to a State-run fund to support public schools. So there is no financial incentive for the BOE to abuse the power to levy fines.
Although fines pose less potential for abuse, the proposed statute contains a serious defect: it lacks a cap on the total amount of fines a doctor could be required to pay in a single prosecution. The statute says up to $500 “per violation.” But most disciplinary complaints include more than one alleged violation; occasionally, there can be a dozen or more. Without a cap, fines could become oppressive. If the legislature chooses to grant the BOE’s request for fining authority, it needs to specify the maximum amount a doctor could be obligated to pay per disciplinary action, not just per violation.
Only ten healthcare licensing boards have the power to impose fines, and five of the ten have caps of $1,000.00. Recently, the BOE has shown some willingness to accept a cap, but the dollar amount has not been finalized.
Carolina Chiropractors acknowledges that HB 415 contains safeguards to make fining authority more palatable, but we also understand that many doctors feel strongly that the BOE should not have the power to impose fines at all. Their voices deserve to be heard.
Re-Writing the Commandments. Under our current practice act, the disciplinary code recites twenty-one violations. The BOE wants to eliminate thirteen and add one. Violations slated for repeal include False or Misleading Advertising, Unethical Conduct, Unacceptable Care, and Lack of Good Moral Character.
Eliminating some of the more technical violations would benefit doctors, but the Board may have gone too far. For example, eliminating False or Misleading Advertising would mean that all advertising complaints are treated as Fraud, Deception or Misrepresentation, a more serious offense. Eliminating Unacceptable Care would mean that minor transgressions such as inadequate record-keeping would be treated as Negligence, Incompetence or Malpractice. And repeal of the statutory definition of acceptable care (“the usual and customary method as taught in the majority of recognized chiropractic colleges”) may deprive doctors of a legal defense. In sum, over-simplification could transform the disciplinary code from a scalpel into a sledgehammer.
WHAT YOU CAN DO
Since HB 415’s introduction in March, Carolina Chiropractors has had several conversations with the BOE to explain our concerns. Except for entertaining the possibility of a cap on fines, the Board has refused to make any changes to the bill. It has been especially adamant on the issue of hearing costs.
If you agree with us that HB 415 has flaws, we encourage you to contact your State senator and representative and let them know that the profession is not yet on board. At this stage of the legislative process, there is still time to refine the bill. With the necessary corrections, HB 415 can be deserving of your support.
THANK YOU FOR YOUR HELP! TOGETHER, WE CAN CREATE AN IMPROVED PRACTICE ACT THAT PROTECTS THE PUBLIC AND TREATS DOCTORS FAIRLY.
Thanks to our sponsors for supporting our ongoing mission to advance and promote chiropractic in North Carolina. If your company would like to contribute to Carolina Chiropractors, we offer a variety of sponsorship packages to create valuable opportunities and resources for our partners. Click here to contact us today!