What is the Real Problem at the California Board of Chiropractic Examiners?5 min read

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Beginning in early March of this year, there have been numerous dramatic media stories about “chaos” at the State Board of Chiropractic Examiners and “lawless” actions by Board members.

On March 28th I co-chaired, with Senator Mark Ridley-Thomas, an oversight hearing of the State Legislature to investigate the actions of the Chiropractic Board. The results of that hearing were pretty amazing by any reasonable standard of evaluating a state government agency that is supposed to be serving the citizens of California.

According to testimony at the legislative hearing, as well as documents from the Attorney General’s Office, and the approved minutes of the Board’s meetings over the past year, it appears that several current Chiropractic Board members have: (1) repeatedly violated the Bagley-Keene Open Meeting Act; (2) improperly attempted to interfere with the continued employment of civil service employees; (3) unlawfully attempted to dismiss the Attorney General as the Board’s legal counsel in favor of a private attorney; (4) illegally fired the Board’s Executive Director without affording her statutorily-guaranteed procedural due process rights (to the extent that the Board had to convene a second meeting at which it re-fired her); (5) violated the Administrative Procedure Act by inviting chiropractors who are the subject of complaints, investigations, or accusations to bypass staff and discuss their enforcement matters directly with Board members; (6) violated the Administrative Procedure Act by engaging in underground rulemaking to endorse the participation of chiropractors in a controversial procedure that some healthcare and legal experts consider to be the practice of medicine; and (7) improperly attempted to interfere with an ongoing criminal prosecution of a chiropractor accused of the unauthorized practice of medicine.

To my way of thinking, the foregoing is a shocking list of negative accomplishments. But the surprise is that the list of horribles at the Chiropractic Board is not the real problem. Or, to be more precise, the awful actions of the Board members are just a result of the real problem.

The overriding problem at the Chiropractic Board can be clarified by asking straightforward questions. Who has the authority to make sure the Board conducts its affairs appropriately? Who has oversight responsibility for the actions of Board members? To put it simply – Who is minding the store?

The answer is: Nobody is minding the store because nobody can mind the store.

The Board of Chiropractic Examiners was created in 1922 by a statewide initiative. That initiative made the Board an isolated agency that, by design, is insulated from any effective oversight. The historical reason for this isolation and insulation was a fear by chiropractors that the medical profession – physicians – would thwart or severely restrict the practice of chiropractic in California.

Consequently, unlike virtually all other state boards that license and regulate healthcare professions, the Chiropractic Board is not part of the Department of Consumer Affairs. This means there is no effective oversight by the Executive Branch of state government.

In addition, the 1922 Chiropractic Initiative does not allow the Legislature to make any amendments to the Initiative (without putting a proposition on the statewide ballot), thereby severely limiting the Legislative Branch from having effective oversight of the Board.

So, what do we need to do? The answer is to make the Board accountable to the citizens of California through oversight by the Executive and Legislative Branches of government. To accomplish that goal I have introduced AB 1137, which passed the Assembly Business and Professions Committee on April 24th.

Key provisions of AB 1137 include:

• The provisions of this bill become effective only if they are approved by a vote of the electorate on a statewide ballot.

• “Protection of the public” must be the Board’s highest priority in exercising its licensing, regulatory and disciplinary functions. If protection of the public is inconsistent with other interests sought to be promoted, the protection of the public must be paramount.

• The Board shall become part of the Department of Consumer Affairs just like the 39 other regulatory boards currently specified as within DCA.

• The Initiative Act may be modified, amended or repealed by the Legislature (through legislation signed by the Governor).

• The Board will consist of seven members, five appointed by the Governor, one appointed by the Speaker of the Assembly, and one appointed by the Senate Rules Committee. The gubernatorial appointees shall consist of three “professional” members (chiropractors) and two “public” members (non-chiropractors). Both legislative appointees shall be public members.

• The five Board members appointed by the Governor will be subject to Senate confirmation.

• The Legislature may “reconstitute” the Board. (Reconstitution essentially fires Board members.)

• The DCA Director will have authority to approve or disapprove the Board’s appointment of an Executive Director.

• All Board meetings must be conducted in accordance with the provisions of the Bagley-Keene Open Meeting Act.

The bottom line is that the chiropractic profession is a hundred years old and the Chiropractic Board is 85 years old. It is high time to bring this Board into the 21st Century. Establishing accountability for the Chiropractic Board will actually benefit the chiropractic profession. A Board that is beyond reproach is good for all reputable chiropractors who provide beneficial healthcare services to their patients. That is important, but the most important point is that a reputable Chiropractic Board is vital to protecting patients and consumers throughout the state.

Assemblymember Eng chairs the State Assembly Business and Professions Committee, which oversees a broad range of important legislation in the areas of consumer protection, the creation and elimination of regulatory agencies, scope of practice, licensing and enforcement of issues for all boards and bureaus at the Department of Consumer Affairs, and governmental efficiency and cost control. He represents the 49th Assembly District in eastern Los Angeles County which includes Monterey Park, Alhambra, Rosemead, San Gabriel, San Marino, El Monte and South El Monte.

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