PROPOSED RULEMAKING
STATE BOARD OF CHIROPRACTIC
[ 49 PA. CODE CH. 5 ]
Chiropractic Specialties
[48 Pa.B. 1177]
[Saturday, February 24, 2018]The State Board of Chiropractic (Board) proposes to amend §§ 5.1 and 5.31 (relating to definitions; and professional advertising) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
This proposed rulemaking is authorized under section 302(3) of the Chiropractic Practice Act (act) (63 P.S. § 625.302(3)).
Background and Need for this Proposed Rulemaking
A licensee who ''[m]ake[s] misleading, deceptive, untrue or fraudulent representations in the practice of chiropractic'' is subject to disciplinary action under section 506(a)(2) of the act (63 P.S. § 625.506(a)(2)). Under § 5.31(c)(2), the Board has defined false, fraudulent, deceptive or misleading advertising to include advertising that ''[m]akes only a partial disclosure of relevant facts in its content or in the context in which it is presented.'' In addition, a licensee who ''[h]old[s] himself out as a specialist unless he possesses a postgraduate certification in that specialty'' is subject to disciplinary action under section 506(a)(17) of the act. ''Chiropractic specialty'' is defined in § 5.1 as a ''specialized area of chiropractic in which a licensee has achieved certification or diplomate status through a program approved by an approved chiropractic college that has established valid standards acceptable to the Board for the achievement of certification or diplomate status.'' Under § 5.31(c)(5), false, fraudulent, deceptive or misleading advertising includes advertising that ''[c]ontains a representation that the licensee holds certification in a chiropractic specialty when the licensee does not hold certification in that specialty.''
The Board is aware that a chiropractor might obtain a ''certification'' that does not truly reflect genuine advanced knowledge, training or skill, but instead is rather easily obtained. Unfortunately, the public, not knowing what certifications are meaningful, may be confused or deceived by the advertising of these credentials. Because it is not a false statement to advertise the credentials that the licensee actually holds, regardless of the real value of those credentials, the licensee cannot be prosecuted under section 506(a)(2) of the act without showing that the advertisement was misleading or under § 5.31(c)(2) without showing that the advertisement made only a partial disclosure. Because § 5.31(c)(5) already specifically addresses the advertising of chiropractic specialties, it appears appropriate to amend that provision to create a brighter line rule in the advertising of professional credentials.
The American Board of Chiropractic Specialties recognizes various specialty boards including the Academy of Chiropractic Orthopedists, the American Chiropractic Association Council on Pediatrics, the American Chiropractic Association Council on Chiropractic Physiological Therapeutics and Rehabilitation, the American Chiropractic Association Council on Diagnosis and Internal Disorders, the American Chiropractic Association Council on Diagnostic Imaging, the American Chiropractic Association Council on Nutrition, the American Chiropractic Council on Occupational Health, the American Chiropractic Association Council on Orthopedics, the American Chiropractic Association Council on Injuries and Physical Fitness, the American Chiropractic Association Council on Neurology, the American Chiropractic College of Radiology, the American College of Chiropractic Consultants, the American College of Chiropractic Orthopedists and the International Chiropractic Pediatric Association. These specialty boards require passing a certification examination after either a full-time residency of at least 3 years or a part-time program of more than 300 hours of education and clinical practice.
Consistent with the constitutionally protected commercial free speech rights of its licensees, the Board intends this proposed rulemaking to prohibit false or misleading advertising of chiropractic specialties and credentials, specifically prohibiting advertising those credentials that do not demonstrate any genuine advanced knowledge, training or skill. Because these credentials would not accurately inform the public about lawful activity and are more likely to deceive the public than to inform it, the Board may properly prohibit its licensees from advertising these credentials. See Bureau of Professional and Occupational Affairs v. State Board of Physical Therapy, 556 Pa. 268, 728 A.2d 340 (1999).
Description of the Proposed Amendments
This proposed rulemaking would amend § 5.31(c)(5) to provide that advertising is fraudulent, false, deceptive or misleading, and therefore grounds for disciplinary action, if the advertising represents that the licensee holds certification ''or otherwise is a specialist in a chiropractic specialty unless the licensee holds certification or diplomate status in that specialty from a specialty board recognized by the American Board of Chiropractic Specialties,'' rather than simply holding a certification in a specialty. This proposed rulemaking would also delete as unnecessary the definition of ''chiropractic specialty'' in § 5.1.
Fiscal Impact and Paperwork Requirements
This proposed rulemaking will not have adverse fiscal impact on the Commonwealth or its political subdivisions. This proposed rulemaking will not impose additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, a sunset date has not been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on February 9, 2018, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking by the Board, the General Assembly and the Governor.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to the Regulatory Unit Counsel, Department of State, State Board of Chiropractic, P.O. Box 69523, Harrisburg, PA 17105-9523, RA-STRegulatoryCounsel@pa.gov within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-4312 (chiropractic specialties) when submitting comments.
J. GERARD HALLORAN, DC,
ChairpersonFiscal Note: 16A-4312. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 5. STATE BOARD OF CHIROPRACTIC
Subchapter A. GENERAL PROVISIONS § 5.1. Definitions.
The following words and terms when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * ChildLine—An organizational unit of the Department of Public Welfare which operates a 24-hour a day Statewide toll free telephone system for receiving reports of suspected child abuse, referring reports for investigation and maintaining the reports in the appropriate file.
[Chiropractic specialty—A specialized area of chiropractic in which a licensee has achieved certification or diplomate status through a program approved by an approved chiropractic college that has established valid standards acceptable to the Board for the achievement of certification or diplomate status.]
Individual residing in the same home as the child—An individual who is 14 years of age or older and who resides in the same home as the child.
* * * * *
Subchapter C. BUSINESS ASPECTS OF PRACTICE § 5.31. Professional advertising.
* * * * * (c) Advertising which is false, fraudulent, deceptive or misleading will be considered unprofessional conduct and may provide the basis for disciplinary action against the advertising licensee. An advertisement shall be deemed by the Board to be fraudulent, false, deceptive or misleading if it does one of the following:
* * * * * (5) [Contains a representation that the licensee holds certification in a chiropractic specialty when the licensee does not hold certification in that specialty.] Contains a representation that the licensee holds certification or otherwise is a specialist in a chiropractic specialty unless the licensee holds certification or diplomate status in that specialty from a specialty board recognized by the American Board of Chiropractic Specialties.
* * * * *
[Pa.B. Doc. No. 18-290. Filed for public inspection February 23, 2018, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
