NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Chiropractic Examining Board in ss. 15.08 (5) (b), 227.11 (2) and 446.02 (2) (b), Stats., and interpreting s. 446.02 (2) (b) and (c) and (6m), Stats., as created by 2005 Wisconsin Act 25, the Chiropractic Examining Board will hold a public hearing at the time and place indicated below to consider an order to amend ss. Chir 4.05 (1) (d); and to create ss. Chir 5.01 (1) (f) and (g), 6.02 (31) and chapter Chir 12, relating to nutritional counseling certification.

Date:   June 22, 2006

Time:   8:15 a.m.

Location:   1400 East Washington Avenue

  Room 121C

  Madison, Wisconsin

APPEARANCES AT THE HEARING:

Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to Pamela Haack, Paralegal, Department of Regulation and Licensing, 1400 East Washington Avenue, Room 152, P.O. Box 8935, Madison, Wisconsin 53708-8935, or by email at pamela.haack@drl.state.wi.us. Comments must be received on or before July 3, 2006 to be included in the record of rule-making proceedings.

Statutes interpreted: Section 446.02 (2) (b), Stats., and s. 446.02 (2) (c) and (6m), Stats., as created by 2005 Wisconsin Act 25.

Statutory authority: Sections 15.08 (5), 227.11 (2) and 446.02 (2) (b), Stats.

Explanation of agency authority: 2005 Wisconsin Act 25 contained changes to s. 446.02 (2) (c) and (6m), Stats, which create an area of expanded practice for chiropractors. The legislature has directed that the Chiropractic Examining Board establish the educational requirements for this area of practice. Pursuant to s. 446.02 (2) (b), Stats., the Chiropractic Examining Board has the ability to set educational standards for licensure. This rule establishes the educational requirements for the new certificate as well as incorporating changes to prohibited practices, professional conduct and continuing education to make the rules consistent with the addition of nutritional counseling as a practice area.

Related statute or rule: Chapters Chir 4, 5 and 6; Chapter 446, Wis. Stats.

Plain language analysis: The Chiropractic Examining Board is proposing changes to s. Chir 4.05, prohibited practice, s. Chir 5.01, continuing education requirements for license renewal, and the creation of ch. Chir 12, relating to the certification process for nutritional counseling. These changes are in response to 2005 Wisconsin Act 25, that went into effect on January 1, 2006, specifying that chiropractors will be able to expand their scope of practice to provide nutritional counseling once they have completed 48 hours of board-approved postgraduate study in nutrition and paying a one-time certification fee of $25.

This proposed rule-making is required to define the substance and requirements of what constitutes a board-approved 48 hour post graduate program in nutrition. Rule-making is also required to develop additional continuing education requirements, possible exemptions for advanced nutritional education, and scope of nutritional counseling.

SECTION 1 amends the existing exception under s. Chir 4.05 Prohibited Practice which allows a chiropractor to sell vitamins, herbs or nutritional supplements to include the provisions under ch. Chir 12 Nutritional Counseling Certification.

Prior to the changes directed by 2005 Wisconsin Act 25, it was considered a prohibited practice for a chiropractor to engage in some types of nutritional counseling. This section makes changes to the prohibited practice language to allow counseling in compliance with the provisions of Act 25.

SECTION 2 defines the educational hour of coursework required under ch. Chir 12 and establishes that chiropractors who hold a nutritional counseling certificate shall complete at least 4 hours of study in nutrition as a part of their biennial 40 hours of continuing education requirement.

SECTION 3 expands the language of the unprofessional conduct provisions to recognize that a chiropractor who makes unsubstantiated claims about the effectiveness of nutritional counseling can be disciplined.

SECTION 4 sets out the minimum standards for the nutritional counseling coursework that is required to obtain the additional certificate. This section also sets out the procedure for course sponsors to obtain board approval. This section identifies the subject matter which must be covered and sets the standards for determination of successful completion. This section requires that the course contain at least 4 tests and that a score of 75% or higher is necessary to successfully complete the course.

This section also contains a sunset provision requiring that chiropractors must either obtain this education and certification or cease selling nutritional supplements within 24 months of the effective date of this rule.

Summary of, and comparison with, existing or proposed federal regulation: None.

Comparison with rules in adjacent states: Illinois:

A “chiropractic physician" licensed under Illinois's Medical Practice Act: 225 ILCS 60 may treat human ailments without the use of drugs or surgery [225 ILCS 60/2 (10)]. The statutes and rules appear to be silent regarding the provision of nutritional advice or counseling as well as the dispensation or prescription of nutritional supplements.

Michigan:

Pursuant to Michigan's Public Health Code Action 368 Section 333.16401 (1) (b) (iii), providing “nutritional advice" is within the chiropractic scope of practice; however, the prescribing or dispensing of drugs or medicine is not within their scope of practice.

Section 333.16401 (1) (b) (iii):

The use of analytical instruments, nutritional advice, rehabilitative exercise and adjustment apparatus regulated by rules promulgated by the board pursuant to section 16423, and the use of x-ray machines in the examination of patients for the purpose of locating spinal subluxations or misaligned vertebrae of the human spine. The practice of chiropractic does not include the performance of incisive surgical procedures, the performance of an invasive procedure requiring instrumentation, or the dispensing or prescribing of drugs or medicine.

Michigan's administrative rules are silent regarding provision of nutritional advice or counseling as well as the dispensation or prescription of nutritional supplements.

Minnesota:

Minnesota's statutes are mostly silent with regards to the provision, recommendation or dispensation of nutritional supplements. Minnesota statutes do mention that nutrition is a part of the required written chiropractic examination.

A chiropractor in Minnesota may provide nutritional therapy and counseling on a dietary regimen as part of Rehabilitative Therapy for their patients.

Minnesota Administrative Rules state:

2500.0100 Subp.11 Rehabilitative Therapy. “Rehabilitative therapy" means therapy that restores an ill or injured patient to the maximum functional improvement by employing within the practice of chiropractic those methods, procedures, modalities, devices, and measures which include mobilization; thermotherapy; cyrotherapy; hydrotherapy; exercise therapies; nutritional therapy; meridian therapy; vibratory therapy; traction; stretching; bracing and supports; trigger point therapy; massage and the use of forces associated with low voltage myostimulation, high voltage myostimulation, ultraviolet light, diathermy, and ultrasound; and counseling on dietary regimen, sanitary measures, occupational health, lifestyle factors, posture, rest, work, and recreational activities that may enhance or complement the chiropractic adjustment.

2500.4000 Rehabilitative Treatment.

Rehabilitative therapy, within the context of the practice of chiropractic, may be done to prepare a patient for chiropractic adjustment or to complement the chiropractic adjustment, provided the treating chiropractor initiates the development and authorization of the rehabilitative therapy. The administration of the rehabilitative therapy is the responsibility of the treating chiropractor. The rehabilitative therapy must be rendered under the direct supervision of qualified staff.

Iowa:

Iowa Statutes allow chiropractors to provide nutritional advice under Iowa Stats section 151.1 (3) Chiropractic Defined which states:

Persons utilizing differential diagnosis and procedures related thereto, withdrawing or ordering withdrawal of the patient's blood for diagnostic purposes, performing or utilizing routine laboratory tests, performing physical examinations, rendering nutritional advice, utilizing chiropractic physiotherapy procedures, all of which are subject to and authorized by section 151.8.

Iowa Statutes also provide that licensed chiropractors may not administer or prescribe drugs or medicine. Iowa Stats Section 151.5 Operative surgery – drugs.

A license to practice chiropractic shall not authorize the licensee to practice operative surgery, osteopathy, nor administer or prescribe any drug or medicine included in materia medica.

Iowa's administrative rules are silent regarding provision of nutritional advice or counseling as well as the dispensation or prescription of nutritional supplements.

Summary of factual data and analytical methodologies: The Chiropractic Examining Board, in an effort to create an adequate curriculum of 48 hours of board-approved postgraduate study in nutrition, which was called for in the enactment of the statutes under 2005 Wisconsin Act 25, consulted with the following educational bodies and professional associations: Palmer College of Chiropractic; Northwestern Chiropractic College; Wisconsin Chiropractic Association; Wisconsin Dieticians Association.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: The proposed rules for the provisions of nutritional counseling will affect the practice of small business as defined by a company, clinic or chiropractic practice is defined a business with 25 employees or less or less than $5 million in annual receipt (billings).

Chiropractic Small Business Market Analysis: as per the Department of Commerce, the 2002 Economic Census Report for Health professions that are Employers who are chiropractors is:

1. 898 offices of Chiropractic with receipts ($1000s) 255,518 for average receipts of $284,541 per office with 3,477 paid employees (ave. of 4 per office).

as per the Department of Commerce, the 2003 Economic Census Status report for NonEmployers, which are establishments consisting of one licensed Chiropractor engaged in the independent practice of Chiropractic indicates:

1. 303 offices with receipts ($1,000s) of 15,706 for average receipts of $51,835 per office.

The Department of Regulation and Licensing's March of 2006 licensee count indicates that there are 1,708 chiropractors with active licenses (up to date and eligible to practice).

The effect of the rules on the practice of small business may be as follows:

1. Prior to the enactment of the new statutes and the pending proposed rules, licensed chiropractors were able to sell vitamins, herbs or nutritional supplements for the general health and well-being of their patients, however the practice of recommending, counseling or directing patients to take vitamins, herbs or nutritional supplements were prohibited by their scope of practice, and administrative rules governing conduct.

2. The proposed rules will allow chiropractors, who elect to take the prescribed 48 hour program under the rules and pay the $25 fee to the Department of Regulation and Licensing will be able to expand their scope of practice by providing nutritional counseling, guidance and recommendations for vitamins, herbs or nutritional supplements. This is seen as a substantial business benefit through the generation of additional revenues and enhanced patient care.

3. The proposed rules will prohibit chiropractors whom have not taken the prescribed 48-hour program and received their certificate from selling vitamins, herbs or nutritional supplements. This practice is being eliminated as it prevents confusion to the consumer who may have difficulty discerning those chiropractors whom are allowed to provide counseling and guidance in addition to selling, and those chiropractors whom are only allowed to sell vitamins, herbs or nutritional supplements. This is seen by the board as an enhancement to public safety and protection. Chiropractors who are currently selling these products, but wish not to obtain their certificate must discontinue selling these products which will have an effect on their business.

4. The board notes that in addition to the $25 fee, the 48-hour program will have additional fiscal effect of time away from the office and subsequent lost billings, and the program may cost approximately $1,000 or more based on the provider of the program. This cost to small business will be substantially offset and may be entirely eliminated by existing continuing education costs. Chiropractors are required by law to complete 40 hours of continuing education in the biennium. The 48-hour program may be counted toward their ongoing CE requirement in the biennium in which it is completed. This will offset the cost of the program by having it count towards their continuing education requirement, and offsetting additional cost in terms of educational dollars and time away from their practice.

Section 227.137, Stats., requires an “agency" to prepare an economic impact report before submitting the proposed rule-making order to the Wisconsin Legislative Council. The Department of Regulation and Licensing is not included as an “agency" in this section.

The Department of Regulation and Licensing estimates that this rule will require staff time in the Division of Professional Credentialing, Division of Enforcement, and the Division of Management Services. The total staff salary and fringe is estimated at $13,807.

Anticipated costs incurred by private sector: $25 fee for the certificate, educational costs for the required 48 hour program.