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NEW JERSEY REGISTER
VOLUME 38, ISSUE 16
ISSUE DATE: AUGUST 21, 2006
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF CHIROPRACTIC EXAMINERS

38 N.J.R. 3235(a)

Proposed Readoption with Amendments: N.J.A.C. 13:44E

State Board of Chiropractic Examiners Rules

Authorized By: State Board of Chiropractic Examiners, Kevin Earle, Executive Director.

Authority: N.J.S.A. 45:1-3.2, 45:9-14.5 et seq. and 45:9-41.23.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2006-248.

Submit comments by October 20, 2006 to:

Kevin Earle, Executive Director
State Board of Chiropractic Examiners
124 Halsey Street
P.O. Box 45004
Newark, NJ 07101

The agency proposal follows:

Summary

The State Board of Chiropractic Examiners (the Board) is proposing to Readopt N.J.A.C. 13:44E with amendments. Pursuant to Executive Order No. 66 (1978) and N.J.S.A. 52:14B-5.1c, these rules are scheduled to expire on December 23, 2006. In compliance with the Executive Order, the Board undertook a thorough review of the existing provisions of N.J.A.C. 13:44E in order to delete unnecessary rules and clarify existing provisions. The Board believes that the rules proposed for readoption, as amended, are necessary, reasonable, understandable and responsive to the purpose for which they were promulgated. The following is a summary of the rules that the Board proposes to readopt, as well as a summary of the proposed amendments.

The Board proposes to readopt with amendments Subchapter 1, which sets forth the chiropractor's scope of practice. The Board proposes to amend N.J.A.C. 13:44E-1.1 to clarify the scope of practice for licensed chiropractors. Specifically, the Board proposes to clarify that a licensed chiropractor may order and/or administer therapeutic, rehabilitative and/or strengthening exercises if these exercises are performed in conjunction with chiropractic care. The Board believes that the administration of these exercises are necessary at times to prepare a patient for treatment and after an adjustment to help maintain the effects of the adjustment. The Board also proposes an amendment to this section to clarify when a licensed chiropractor may order and/or administer physical modalities.

Subchapter 1A sets forth the rules for licensure. Specifically, N.J.A.C. 13:44E-1A.1 sets forth the requirements for licensing as a chiropractor. N.J.A.C. 13:44E-1A.2 sets forth the application requirements for chiropractic licensure in New Jersey. N.J.A.C. 13:44E-1A.3 sets forth the requirements for licensure, without examination, of applicants licensed in other states. The Board proposes to readopt N.J.A.C. 13:44E-1A.1 with only a grammatical amendment. The Board is proposing amendments adding N.J.A.C. 13:44E-1A.2(a)5 and 1A.3(a)5 to reflect the current requirement under N.J.S.A. 45:1-28 et seq. that any chiropractor becoming licensed in New Jersey for the first time must undergo a criminal history record background check. N.J.A.C. 13:44E-1A.4 contains the biennial license renewal requirements for chiropractors. The Board proposes to add a provision that allows a licensee to elect an inactive status consistent with N.J.S.A. 45:1-7.3. The Board has specified the requirements for reinstatement for both less than five years and greater than five years of inactive licensure. When a licensee has chosen an inactive status and remains inactive for more than five years, he or she is required to pass the Special Purposes Examination for Chiropractic (SPEC) before being reinstated, unless they have been lawfully practicing in another jurisdiction. In addition, the Board has specified the requirements for reinstatement after a license has been expired for more than five years under N.J.A.C. 13:44E-1A.4(c). Again, the licensee is required to pass the SPEC prior to reinstatement, unless he or she has been lawfully practicing in another jurisdiction.

Subchapter 2 contains the general rules of practice. N.J.A.C. 13:44E-2.1 contains the requirements for licensee advertising. N.J.A.C. 13:44E- 2.2 sets forth the information to be placed in patient records. These provisions are proposed to be readopted with only grammatical amendments.

N.J.A.C. 13:44-2.3 contains the Board's sexual misconduct rules. The Board is amending N.J.A.C. 13:44E-2.3(c)2 to make the language clearer. Further, the Board proposes a substantive amendment to N.J.A.C. 13:44E-2.3(c)1 requiring that the written notice terminating a patient-chiropractor relationship be sent via certified mail, return receipt requested. The Board is proposing this amendment to verify that the patient has received the notice of termination. Further, the chiropractor will now have a record showing that the termination notice has been sent to the patient. In addition, the Board will now require that both the written notice requirement of N.J.A.C. 13:44E-2.3(c)1 and the waiting period requirement of N.J.A.C. 13:44E-2.3(c)2 be satisfied in order for the patient-chiropractor relationship to be terminated. Currently, only one of those requirements must be fulfilled in order to terminate the relationship. The Board has determined that the proposed amendment is necessary to avoid a situation where written notice is sent and a personal relationship is undertaken immediately thereafter while the patient is still under the influence of the chiropractor.

N.J.A.C. 13:44E-2.4 is proposed to be readopted without amendment. It sets forth the requirement that every chiropractic facility have a chiropractor of record. In addition, that provision addresses the requirement that patients must be reimbursed for fees where services were rendered in violation of N.J.S.A. 45:1-21.

N.J.A.C. 13:44E-2.5 contains the Board's fee schedule. The Board proposes to make a technical amendment to that section to include the certification fee for chiropractors who perform electrodiagnostic testing and special examinations. This fee is presently codified in N.J.A.C. 13:44E-3.5(a)3. This amendment will set forth the complete fee schedule in one section. In addition, the Board has added a provision for an inactive license status fee.

N.J.A.C. 13:44E-2.6 prohibits fees for patient referral but allows the division of fees under certain circumstances, and is proposed for readoption without amendment. N.J.A.C. 13:44E-2.6A sets forth the requirements for patient record review and subsequent opinion upon review of that record by a non-attending chiropractor, and is proposed for readoption with only grammatical amendments.

N.J.A.C. 13:44E-2.7 sets forth tests and functions that can be delegated by a chiropractor to an unlicensed assistant. Here, the Board proposes an amendment to clarify that a licensed chiropractor may not allow an unlicensed assistant to administer therapeutic, rehabilitative and/or strengthening exercises. Further, the Board proposes to clarify that the administration of physical modalities that may be delegated by licensed chiropractors to unlicensed assistants does not include the administration of decompression therapy devices or mechanical traction, except for non-fulcrum mechanical traction without restraints. Unlicensed assistants do not have the training necessary for the safe administration of decompression therapy devices and mechanical traction, other than non-fulcrum mechanical traction without restraint devices such as roller tables and roller chairs. Generally, decompression therapy devices and mechanical traction other than non-fulcrum mechanical traction without restraints, directly effect pressure on the spinal column and could harm the patient if administered improperly. The Board also proposes to amend this provision to allow an unlicensed assistant to set up and prepare a patient for the administration of physical modalities. In addition, the Board proposes to continue to prohibit an unlicensed assistant from performing massage, but proposes to amend the regulations to allow massage by a person who is certified by the Massage, Bodywork and Somatic Therapy Committee of the New Jersey Board of Nursing. N.J.A.C. 13:44E-2.7A sets forth the requirements for ordering electro-therapy devices for home use. Here, the Board has proposed an amendment to N.J.A.C. 13:44E-2.7A(c)1 that would prohibit a licensee from ordering a battery operated electro-therapy device for home use by a patient with an implanted defibrillator. The Board believes that ordering an electro-therapy device for a patient with an implanted defibrillator could be harmful to the patient.

N.J.A.C. 13:44E-2.8 requires the licensee to notify the Board of any change of address. The section also provides that service of notice of an administrative complaint to the address of record is considered adequate notice. N.J.A.C. 13:44E-2.9 requires a licensee to display his or her license in a conspicuous place in the principal office or place of practice. N.J.A.C. 13:44E-2.10 sets forth a licensees right to a hearing before a Board suspension, revocation or refusal to renew. The Board proposes to readopt these sections without amendment. N.J.A.C. 13:44E-2.11 prohibits excessive fees and overutilization. The Board proposes to readopt this section with only grammatical amendments.

N.J.A.C. 13:44E-2.12 sets forth the requirements for patient referral to a physical therapist. The Board has proposed the addition of the phrase "referral or" to coincide with the amendments to N.J.S.A. 9-37.13 permitting such referrals without physician direction. N.J.A.C. 13:44E-2. 13 contains the chiropractic examination requirements. In N.J.A.C. 13:44E-2.13(a)2, the Board has proposed the deletion of the word "written" to reflect that the jurisprudence examination now will be administered electronically. N.J.A.C. 13:44E-2.14, Independent chiropractic examinations, is proposed for readoption with only a grammatical amendment.

Subchapter 3 addresses determinations with respect to the validity of certain diagnostic tests, special requirements for electrodiagnostic tests and other special examinations. N.J.A.C. 13:44E-3.1 contains the definitions for this subchapter, and is proposed for readoption with only grammatical amendments. N.J.A.C. 13:44E-3.3 contains the tests that a chiropractor cannot perform but for which a patient may be referred to a medical doctor. The Board proposes to readopt this section without amendment.

The Board is proposing to amend N.J.A.C. 13:44E-3.2, 3.4, 3.5 and 3.6 to clarify certain requirements for licensed chiropractors who perform electrodiagnostic testing. To update its rules to include current electrodiagnostic testing practices and terminology, the Board proposes to amend its recognized diagnostic test rule at N.J.A.C. 13:44E-3.2 to clarify that a licensed chiropractor may bill for repetitive stimulation studies and nerve conduction studies inclusive of motor, sensory, F-wave and H-reflex studies.

The Board also proposes to amend its rule concerning basic pre-test prerequisites and standards for patient evaluations applicable to electrodiagnostic tests and special examinations at N.J.A.C. 13:44E-3.4 to clarify the specific steps to be taken when chiropractors perform or interpret electrodiagnostic tests and the requirements for chiropractors who request the performance of electrodiagnostic tests and other special examinations.

The Board proposes to amend N.J.A.C. 13:44E-3.5 to specify the content of the acceptable course work taken by those who seek certification to perform electrodiagnostic tests and special examinations. The proposed amendments allow accredited medical schools and licensed health care facilities to provide the course work. Another proposed amendment to this section clarifies that the one-time certification fee is set forth in the Board's fee schedule, and a proposed amendment removes anachronistic language concerning certification of those trained prior to March 1, 1999.

In addition, the Board proposes to amend its informed consent rule on electrodiagnostic testing at N.J.A.C. 13:44E-3.6 to clarify the requirements for chiropractors performing these tests and to clarify the factors for determining when a chiropractor should consider repeat testing. Another amendment reflects that practitioners, other than chiropractic physicians, may request the performance of a test by a chiropractic physician.

N.J.A.C. 13:44E-3.7 relates to the use of a testing assistant for technical assistance in performing electrodiagnostic tests and special examinations. The Board proposes to readopt this provision without amendment. N.J.A.C. 13:44E-3.8 relates to the duties of a chiropractor in preparing a test report after an electrodiagnostic test or special examination. Further, the Board proposes to amend this section to coincide with the amendment made under N.J.A.C. 13:44E-3.6 to reflect that practitioners, other than chiropractic physicians, may request electrodiagnostic tests or special examinations. Since there has been some confusion with respect to the Board's limitations on referrals rule, N.J.A.C. 13:44E-3.9, the Board proposes to clarify that the rule does not prevent a chiropractor from referring a patient to another practitioner for consultation to determine the need for other tests. If that practitioner determines that there is a need for additional tests, he or she may perform and bill for those tests. N.J.A.C. 13:44E-3.10 sets forth a chiropractor's duties prior to performing a diagnostic test for which a fee will be charged, and is proposed for readoption with a grammatical amendment and a cross-reference correction. N.J.A.C. 13:44E-3.11 relates to the prospective nature of this Subchapter's rules with respect to its prohibitions and limitations. The Board proposes no amendment to this section on readoption. In addition to the changes set forth above, the Board has proposed grammatical changes throughout.

The Board has determined that the comment period for this proposal is 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Social Impact

The Board believes that the readoption of the existing rules will continue to protect the health, safety and welfare of New Jersey citizens by identifying those individuals who are qualified and legally authorized to engage in the practice of chiropractic. The rules positively affect the regulated community by clarifying varied aspects of the practice of chiropractic for the benefit of all licensed practitioners and applicants for licensure. The readoption of N.J.A.C. 13:44E is essential in order for the Board to continue to regulate the practice of chiropractic, to identity those individuals who are qualified to engage in the practice of chiropractic and to ensure that every licensed practitioner is aware of the procedures involved in licensure. The readoption of N.J.A.C. 13:44E continues the accepted standards of the practice of chiropractic established by the Board and, in so doing, provides licensed chiropractors with a clear and comprehensive set of rules to guide them in their professional practice. Accordingly, the Board believes that the rules proposed for readoption with amendments will have a positive impact upon those served by chiropractors by continuing to safeguard their health, safety and welfare and ensuring the maintenance of professional practice standards which will allow licensees to provide the highest quality of service and care.

In addition, the Board believes that the proposed amendments to N.J.A.C. 13:44E-1.1 and 2.7, related to the scope of practice of licensed chiropractors and the list of tasks that may be delegated to an unlicensed assistant will also protect the health, safety and welfare of the citizens of New Jersey. These amendments clarify the circumstances under which a licensed chiropractor may order and/or administer therapeutic, rehabilitative and/or strengthening exercises and those tasks that an unlicensed assistant may administer. The amendments to N.J.A.C. 13:44E-1A.4, which add a provision for inactive status, will allow a licensee to maintain his or her license while still protecting the health, safety and welfare of the public by setting forth certain requirements prior to reinstatement. The proposed amendment to N.J.A.C. 13:44E-2.3, the sexual misconduct provision, will prevent a practitioner from having any continued influence of a personal nature over a patient after the chiropractor-patient relationship has been terminated. Further, the proposed amendments to N.J.A.C. 13:44E-3.2, 3.4, 3.5 and 3.6 will protect the health, safety and welfare of New Jersey citizens by clarifying the requirements for chiropractors who request and perform electrodiagnostic testing as well as the education requirements for certification. Finally, the proposed amendment to N.J.A.C. 13:44E-3.9, limitations on referrals, makes clear that a patient may be sent for a consultation to another practitioner if needed, and that additional testing may be performed.

Economic Impact

The rules proposed for readoption and the proposed amendments will not impose new or additional costs upon applicants for licensure or consumers. They may, however, impose new costs on licensees. Subchapter 2 will continue to impose costs on a licensee who chooses to advertise. In addition, there may be costs associated with the Board's rules regarding patient records, including those for record maintenance and those associated with providing copies of patient records. The sexual misconduct provision of N.J.A.C. 13:44E-2.3 will impose upon licensees the cost of sending a termination notice via certified mail. The professional misconduct provisions of Subchapter 2 will continue to have an economic impact on any licensee who engages in professional misconduct. The Board's fee schedule set forth at N.J.A.C. 13:44E-2.5 will continue to have an economic impact on licensees, although no new or additional fees will be imposed by the Board at this time. N.J.A.C. 13:44E-2.12 will continue to have an economic impact on licensees who refer patients to physical therapists. That provision requires licensees to provide certain patient information in writing to the physical therapist upon patient referral. N.J.A.C. 13:44E-2.14 requires certain documentation by a chiropractor who is performing an independent chiropractic examination. The documentation requirement of this provision will continue to have an economic impact on licensees. Subchapter 3 will continue to impose costs on licensees who choose to perform electrodiagnostic tests and special examinations under N.J.A.C. 13:44E-3.5. This provision requires licensees to take training courses to perform the tests and examinations. The Board believes that any costs imposed by the rules proposed for readoption with amendments are significantly outweighed by the consumer protection established by N.J.A.C. 13:44E.

Federal Standards Statement

A Federal standards analysis is not required because the rules proposed for readoption with amendments are subject to State statutory requirements and are not subject to any Federal requirements.

Jobs Impact

The Board does not believe that the rules proposed for readoption with amendments will either increase or decrease jobs in the State.

Agriculture Industry Impact

The rules proposed for readoption with amendments will have no impact on the agriculture industry in this State.

Regulatory Flexibility Analysis

Currently, the Board licenses approximately 3,200 chiropractors. If, for the purposes of the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., licensed chiropractors are considered "small businesses," then the following analysis applies. The rules proposed for readoption contain the same compliance, recordkeeping and reporting requirements previously imposed by the Board on its licensees while the proposed amendments will impose upon licensees new compliance, recordkeeping and reporting requirements.

Subchapter 1 contains a number of compliance requirements. N.J.A.C. 13:44E-1.1(b) requires that a licensee refer patients to an appropriate health care provider if the patient presents with a problem that is not within the chiropractic's scope of practice. Subsection (c) requires that a licensee perform diagnostic and analytical procedures within his or her scope of practice. The proposed amendments to N.J.A.C. 13:44E-1.1 require that a licensee document in the patient record that the ordering and/or administration of therapeutic, rehabilitative and/or strengthening, exercises and the ordering and/or administration of physical modalities was clinically indicated and in conjunction with chiropractic care to facilitate, enhance and/or prolong the effects of the chiropractic adjustment. A licensee will be required to comply with the section because it details the scope of practice, and the licensee could be disciplined for professional misconduct if he or she failed to comply with these standards. Subchapter 1A sets forth numerous compliance and reporting requirements for persons applying for licensure in New Jersey either as an initial licensure or as a licensee from another state. The subchapter contains all of the application requirements for licensure, including a criminal history record background check, as discussed below. In addition, N.J.A.C. 13:44E-1A.4 requires all licensees to choose a license status, file an application and pay a fee. The proposed amendment to N.J.A.C. 13:44E-1A.2 and 1A.3, criminal history record background checks, require compliance by both new applicants for licensure and those applicants licensed in other states. The amendments to N.J.A.C. 13:44E-1A.4 require compliance with the requirements for reinstatement for those whose license has expired or those who have chosen inactive status.

Subchapter 2 contains a number of compliance, recordkeeping and reporting requirements. N.J.A.C. 13:44E-2.1 sets forth the requirements for licensee advertising. These regulations require a licensee to retain a video or audiotape of every advertisement communicated by electronic media that may be reviewed upon request by the Board. Also, licensees are required to retain a copy of all advertisements placed by the licensee for three years. The patient record section, N.J.A.C. 13:44E-2.2, requires licensees to maintain records for any person seeking chiropractic care and for patient and third party carrier billings for professional services. These records must be maintained for a period of seven years after the date of the last entry. In addition, this section requires licensees to record certain information on radiographs. Radiographs must be maintained for at least seven years. Also, the section contains the compliance and recordkeeping requirements for providing copies of patient records. Finally, where a licensee is no longer practicing or is out of practice for longer than three months, he or she must file a notice with the Board of procedures established for patient record retrieval. If the practice is not attended by another licensee, the licensee must publish a notice of cessation and the established procedure for retrieval of patient records in a newspaper of general circulation in the area where the licensee's practice is located. The proposed amendment to the sexual misconduct provision, N.J.A.C. 13:44E-2.3, requires licensees to keep a record of the certified letter sent to a patient when ending a patient-chiropractor relationship. N.J.A.C. 13:44E-2.4 deals with the chiropractor of record requirements. The chiropractor of record must be identified on all patient records. If there is no identification on the record it will be assumed that the chiropractor for that patient is the owner of the practice. Each entry in the patient record must be initialed. If there are no initials, then it is assumed that the treatment was rendered by the chiropractor of record. Finally, in a multi-chiropractor practice, any change in the chiropractor of record must be affirmatively noted in the patient record. N.J.A.C. 13:44E-2.5 requires applicants and licensees to remit certain fees to the Board. N.J.A.C. 13:44E-2.6A contains the requirements for patient record review by a non-attending chiropractor. It requires a non-attending chiropractor who determines that there was improper documentation of prior care, or improper documentation or performance of diagnostic testing, referrals or consultation to specifically note the deviation from the standard set forth in N.J.A.C. 13:44E-2.2. Where the non-attending chiropractor determines that the prior care, diagnostic testing, referrals or consultations were not necessary, he or she must clearly state the rationale for that opinion.

N.J.A.C. 13:44E-2.7 requires the licensee to comply with the provisions for delegating to or restricting performance of certain tasks by an unlicensed assistant. The licensee must write all instructions for duties to be performed by the unlicensed assistant in the patient chart. The proposed amendment to N.J.A.C. 13:44E-2.7 does not contain any specific recordkeeping requirement. However, the section requires that a licensee comply by delegating only those tasks and functions allowed under the section. N.J.A.C. 13:44E-2.7A requires the licensee to supply complete instructions including a written acknowledgement of receipt to the patient for home use of electro-therapy devices. Further, the licensee must document in the patient chart, that an electro-therapy devices was ordered for the patient and include the acknowledgement from the patient that he or she has received complete instructions. N.J.A.C. 13:44E-2.8 requires the licensee to notify the Board of any change of address via certified mail, return receipt requested no later than ten days after the address change. N.J.A.C. 13:44E-2.9 requires the licensee to display his or her license and current renewal in a conspicuous place in the office or place of practice. N.J.A.C. 13:44E-2.12 requires the licensee to supply certain information in writing to the physical therapist when referring a patient for physical therapy. The licensee then is required to consult with the physical therapist about the examination and evaluation. The referring chiropractor is required to document both the initial and any ongoing consultation with the physical therapist in the patient's chart. N.J.A.C. 13:44E-2.13 requires that applicants comply with examination requirements. N.J.A.C. 13:44E-2.14 requires a non-attending chiropractor who is performing a chiropractic examination at the request of a third party for the purpose of evaluating the patient's current condition and preparing a written report to: prepare a patient record pursuant to N.J.A.C. 13:44E-2.2; document the records reviewed and other enumerated information in the patient record and the written report; and document in the patient record and the written report the clinical rationale for the opinion, author and sign the report.

Subchapter 3 contains a number of compliance, recordkeeping and reporting requirements. N.J.A.C. 13:44E-3.2 requires a licensee to obtain written informed consent from the patient prior to performing any of the tests under N.J.A.C. 13:44E-3.2(b), but neither the patient nor a third party payor can be billed for the test. N.J.A.C. 13:44E-3.3 requires that a licensee refer patients to a medical doctor for certain tests. N.J.A.C. 13:44E-3.4 requires a licensee to comply with certain pre-test prerequisites and standards before performing electrodiagnostic tests and special examinations. The proposed amendments to N.J.A.C. 13:44E-3.4 contain specific recordkeeping and compliance requirements. Licensees must take and document, in the patient's record, a relevant history of the patient's presenting complaints; perform, at a minimum, a problem-focused examination; establish and document in the patient's record a provisional diagnosis with clinical correlation; and abide by appropriate standards of informed consent explaining potential risks, potential benefits and other clinical options. N.J.A.C. 13:44E-3.5 requires a licensee to comply with certain educational prerequisites before performing any electrodiagnostic tests or special examinations including a training course in the pertinent tests. The licensee must retain a certification of completion for that training course. The licensee must seek Board approval of the course to be completed. The proposed amendments to N.J.A.C. 13:44E-3.5 require a licensee seeking certification to perform electrodiagnostic tests to successfully complete a specified course of study.

N.J.A.C. 13:44E-3.6 requires a licensee who is performing an electrodiagnostic test or special examination to provide a patient with a written description of the test and any risks. Further, the licensee must fulfill certain requirements with respect to equipment used in electrodiagnostic tests and special examinations. In addition, a proposed amendment to N.J.A.C. 13:44E-3.6 requires that a chiropractor who performs any electrodiagnostic test or special examination to comply with the rule by allowing the chiropractor to consider repeat testing only under specific circumstances. Under N.J.A.C. 13:44E-3.7, a licensee who is using a testing assistant and paying that person a fee other than a regular salary, must maintain for seven years a full record of the fee and including the basis therefor. Under N.J.A.C. 13:44E-3.8, a licensee is required to prepare and retain a comprehensive test report when performing an electrodiagnostic test or special examination. The report must include any technical difficulties. Any raw data or graphs must be retained in the patient record. Both the licensee requesting the test and the licensee performing the test must comply with certain follow-up procedures. Under N.J.A.C. 13:44E-3.9, a licensee must comply with certain limitations on referrals and N.J.A.C. 13:44E-3.10 requires a licensee to inform a patient of the fee for a diagnostic test before performing the test and bill the patient only under the name of the chiropractor performing the test.

No professional services will be needed to comply with the rules proposed for readoption with amendments. Moreover, the Board believes that any cost of compliance imposed by these rules proposed for readoption with amendments will not be significant. See the Economic Impact above. The Board also believes that the proposed readoption with amendments should be uniformly applied to all licensees in order to ensure the health, safety and welfare of the general public in the practice of chiropractic; and, therefore, no differing compliance requirements for any licensee are provided.

Smart Growth Impact

The Board does not anticipate that the rules proposed for readoption with amendments will have any impact on the achievement of smart growth or on implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.

Full text of the rules proposed for readoption can be found in the New Jersey Administrative Code at N.J.A.C. 13:44E.

Full text of the proposed amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

SUBCHAPTER 1. PURPOSE AND SCOPE; DEFINITIONS

13:44E-1.1 Scope of practice

(a)-(b) (No change.)

(c) The following diagnostic and analytical procedures are within the scope of practice of a licensee:

1.-4. (No change.)

5. The requesting or performing of such other diagnostic or analytical tests consistent with chiropractic practice including, but not limited to, non-invasive muscle testing and tests using neurocalometer-type devices; and

6. The requesting or performing of electrodiagnostic tests or other special examinations, to the extent and in the manner authorized by N.J.A.C. 13:44E-3[; and].

[7. In conjunction with a chiropractic adjustment, the ordering and/or administering of physical modalities where clinically indicated.]

(d) (No change.)

(e) When clinically indicated, supported and documented in the patient record, a licensee may provide the following procedures in conjunction with chiropractic care to facilitate, enhance and/or prolong the effects of the chiropractic adjustment:

1. The ordering and/or administering of physical modalities; and

2. The ordering and/or administering of therapeutic, rehabilitative and/or strengthening exercises.

SUBCHAPTER 1A. LICENSURE

13:44E-1A.1 Licensing requirements for a chiropractor

(a) To be eligible for licensure as a chiropractor in New Jersey, an applicant shall:

1.-3. (No change.)

4. Have successfully:

i. (No change.)

ii. Graduated from a chiropractic college or university[, which] that meets the requirements set forth in N.J.S.A. 45:9-41.5 during the applicant's entire course of study;

5.-6. (No change.)

13:44E-1A.2 Application for license: chiropractor

(a) An applicant for licensure as a chiropractor in New Jersey shall submit the following to the Board:

1.-2. (No change.)

3. Proof of successful completion of the National Board of Chiropractic Examiners Examination pursuant to N.J.A.C. 13:44E-2.13; [and]

4. The application fee set forth in N.J.A.C. 13:44E-2.5[.]; and

5. A certification of authorization to perform and cooperate in a criminal history background check conducted pursuant to N.J.S.A. 45:1-28 et seq.

13:44E-1A.3 Applicants licensed in other states

(a) An applicant who is licensed to practice chiropractic by an examining and licensing board of another state shall be granted a license to practice chiropractic in New Jersey without further examination provided that:

1.-2. (No change.)

3. The Board has received evidence of the applicant's good standing in any jurisdiction where he or she is or has been licensed; [and]

4. The applicant pays the endorsement license fee as set forth in N.J.A.C. 13:44E-2.5[.]; and

5. The applicant has submitted a certification of authorization to perform and has cooperated in a criminal history background check pursuant to N.J.S.A. 45:1-28 et seq.

(b)-(c) (No change.)

13:44E-1A.4 Biennial license renewal; license expiration; reinstatement after expiration; inactive status; return from inactive status

(a)-(c) (No change.)

(d) An individual whose license has been expired for five years or less for failure to renew pursuant to (c) above may be reinstated by the Board after fulfilling the following:

1. Completion of a reinstatement application;

2. Payment of the reinstatement fee and all past delinquent biennial renewal fees pursuant to N.J.A.C. 13:44E-2.5;

3. Submission of an affidavit of employment listing each job held during the period of license expiration that includes the name, address and telephone number of each employer; and

4. Completion of a criminal history background check as required by N.J.S.A. 45:1-28 et seq., if a criminal history background check has not been completed previously.

(e) An individual whose license has been expired for more than five years, and has been lawfully practicing in another jurisdiction, shall complete the requirements set forth in (d)1 through 4 above.

(f) An individual whose license has been expired for more than five years, and has not been lawfully practicing in another jurisdiction, shall:

1. Complete the requirements set forth in (d)1 through 4 above; and

2. Successfully complete the Special Purposes Examination for Chiropractic administered by the National Board of Chiropractic Examiners.

(g) Renewal applications shall provide the licensee with the option of either active or inactive status. A licensee electing inactive status shall pay the applicable inactive fee set forth in N.J.A.C. 13:44E-2.5 and shall not engage in practice.

(h) A licensee who elected inactive status and has been on inactive status for five years or less may be reinstated by the Board after fulfilling the following:

1. Payment of both the reinstatement and current fees as set forth in N.J.A.C. 13:44E-2.5;

2. Submission of an affidavit of employment listing each job held during the period the licensee was on inactive status including the name, address and telephone number of each employer; and

3. Completion of a criminal history background check as required by N.J.S.A. 45:1-28 et seq., if a criminal history background check has not been completed previously.

(i) A licensee who has been inactive for five or more years, and has been lawfully practicing in another jurisdiction, shall complete the requirements set forth in (h)1 through 3 above.

(j) A licensee who has been inactive for five years or more, and has not been lawfully practicing in another jurisdiction, shall:

1. Complete the requirements set forth in (g)1 through 3 above; and

2. Successfully complete the Special Purposes Examination for Chiropractic administered by the National Board of Chiropractic Examiners.

[(d)] (k) (No change in text.)

SUBCHAPTER 2. GENERAL RULES OF PRACTICE

13:44E-2.1 Advertising

(a)-(f) (No change.)

(g) Offers of discounts or fee reductions or free services shall indicate the advertiser's fixed or stated range of fees against which said discount is to be made and/or the value of the free services. Chiropractic services [which] that are routinely or ordinarily performed free of charge, shall be clearly and conspicuously stated in the body of the advertisement as such.

1.-4. (No change.)

(h)-(l) (No change.)

13:44E-2.2 Patient records

(a)-(b) (No change.)

(c) All radiographs shall be labeled, as a minimum, with the following identifying information:

1.-3. (No change.)

4. The name of facility; and[;]

5. Right or left identity.

(d)-(g) (No change.)

13:44E-2.3 Sexual misconduct

(a) By this section, the State Board of Chiropractic Examiners is identifying for its licensees conduct [which] that it shall deem to be violative of law.

(b) (No change.)

(c) A licensee shall not engage in sexual contact with a patient with whom he or she has a patient-chiropractor relationship. The patient-chiropractor relationship is considered ongoing for purposes of this section, unless:

1. Professional services are terminated[,] by [way of] written notice to the patient via certified mail return receipt requested and documentation in the patient record; [or] and

2. [The] Three months have elapsed since the last professional service was rendered [more than three months ago].

(d)-(k) (No change.)

13:44E-2.5 Fee schedule

(a) The following fees shall be charged by the Board:

1.-8. (No change.)

9. Electrodiagnostic Testing and Special Examination Certification Fee ...................................................................50.00

10. Inactive license fee..... (to be determined by the Director by rule)

13:44E-2.6A Patient record review

(a) (No change.)

(b) A non-attending chiropractor who performs a patient record review, which evaluates prior chiropractic care or the need for continued chiropractic care or the necessity for diagnostic testing, shall make a reasonable and documented effort to obtain all records of the attending chiropractor relevant to the chiropractic care or condition under evaluation before rendering an opinion concerning the prior chiropractic care, the need for continued chiropractic care or the need for diagnostic testing.

(c)-(h) (No change.)

13:44E-2.7 Delegable tasks or functions of unlicensed assistants

(a) The following words and terms, when used in this section, shall have the following meanings unless the context clearly indicates otherwise:

1. (No change.)

2. "Unlicensed assistant" means any person, including a student or graduate of a chiropractic institution, who does not hold a valid New Jersey chiropractic license, or a license, certification or registration issued pursuant to law [which] that authorizes the performance of acts [which] that, absent such authorization, would be unlawful.

(b) Under the direct supervision of, and when delegated by, a licensed chiropractor, an unlicensed assistant, including a graduate of a recognized program of study in chiropractic, may perform tasks or functions including, but not limited to, the following:

1.-7. (No change.)

8. Providing instruction in activities of daily living; [and]

9. Administering cryotherapy, hot packs, non-fulcrum mechanical traction without restraints (such as roller tables and roller chairs) and non-invasive surface screening[.]; and

10. Setup and preparation of the patient for the administration of physical modalities.

(c) A licensee shall not permit an unlicensed assistant to:

1. (No change.)

2. [Perform] Notwithstanding (a)2 above, perform massage, unless certified as a massage, bodywork and somatic therapist certified in this State by the Massage, Bodywork and Somatic Therapy Committee created under the New Jersey Board of Nursing pursuant to N.J.S.A. 45:11-53 to 67 to perform massage therapy.

3.-4. (No change.)

5. Administer the following physical modalities:

i. Ultraviolet (B and C bands) or electromagnetic rays including, but not limited to, deep heating agents, microwave diathermy, short-wave diathermy and ultrasound; [or]

ii. (No change.)

iii. Decompression therapy devices or mechanical traction, except non-fulcrum mechanical traction without restraints;

6. Administer therapeutic, rehabilitative or strengthening exercises; or

[6.] 7. (No change in text.)

(d)-(f) (No change.)

13:44E-2.7A Ordering of electro-therapy devices for home use

(a)-(b) (No change.)

(c) A licensee may order a battery operated electro-therapy device for home use provided that the patient:

1. Is not using a cardiac pacemaker or implanted defibrillator;

2.-4. (No change.)

5. Will have adequate home assistance, where such assistance may be necessary in the opinion of the treating chiropractor, especially when the electrodes are to be placed paraspinally;

6. Is provided with a complete set of instructions for home use which includes:

i.-v. (No change.)

vi. Precautions against misuse of the unit, including using the device for any purpose other than that for which it was ordered;

vii.-ix. (No change.)

7. (No change.)

(d)-(e) (No change.)

13:44E-2.11 Overutilization; excessive fees

(a) A licensee shall not directly or indirectly engage in the rendering of any bill or the submission of any claim for service [which] that:

1.-3. (No change.)

4. Contains an excessive fee. A fee is excessive when, after a review of the facts, a licensee of ordinary prudence would be left with a definite and firm conviction that the fee is so high as to be manifestly unconscionable or overreaching under the circumstances. The charging of an excessive fee shall constitute professional misconduct pursuant to N.J.S.A. 45:1-21. Factors which may be considered in determining whether a fee is excessive include, but are not limited to, the following:

i.-vi. (No change.)

vii. The nature and circumstances under which services are provided[.];

5.-6. (No change.)

13:44E-2.12 Referral of patients to physical therapists

(a) A chiropractor providing referral or physician direction for the initiation of physical therapy treatment by a physical therapist shall supply the physical therapist with the following information in writing:

1.-5. (No change.)

(b)-(d) (No change.)

13:44E-2.13 Chiropractic examination

(a) Effective January 1, 2001, to obtain a license to practice chiropractic, a candidate shall successfully pass:

1. (No change.)

2. The New Jersey State Board of Chiropractic Examiners [written] jurisprudence examination.

(b)-(c) (No change.)

13:44E-2.14 Independent chiropractic examinations

(a)-(b) (No change.)

(c) A licensed chiropractor performing an independent chiropractic examination shall:

1.-2. (No change.)

3. Perform and document in the patient record and in any resulting report, a history, clinical examination and a chiropractic analysis or diagnosis, pursuant to N.J.A.C. 13:44E-1.1(b), [which] that includes the specific tests, examinations or observations performed, and the results and evaluation of these specific tests, examinations or observations together with a review of the patient's response to prior care.

4.-7. (No change.)

SUBCHAPTER 3. DETERMINATIONS WITH RESPECT TO THE VALIDITY OF CERTAIN DIAGNOSTIC TESTS, SPECIAL REQUIREMENTS FOR ELECTRODIAGNOSTIC TESTS AND OTHER SPECIAL EXAMINATIONS

13:44E-3.1 Definitions

As used in this subchapter, the following words and terms shall have the following meanings, unless the context clearly indicates otherwise.

"Clinically supported" means that a chiropractic physician, prior to selecting, performing or ordering the administration of a diagnostic test, has:

1.-3. (No change.)

"Special examination" means a diagnostic test, other than electrodiagnostic test, [which] that is not routinely utilized by chiropractic physicians in the course of ordinary practice, such as specialized imaging studies. "Special examination" does not include x-rays, computer-supported range of motion testing, applied kinesiology, gait analysis, postural analysis tests or muscle testing devices, such as Dynatron or Cyber station.

13:44E-3.2 Recognized diagnostic tests; permissible billing

(a) (No change.)

(b) A chiropractic physician shall not bill for any diagnostic tests [which] that have not been reliably demonstrated to identify conditions amenable to chiropractic care beyond the information ascertainable from the taking of a patient history and performance of a thorough clinical examination or [which] that otherwise fail to yield data of sufficient clinical value in the development, evaluation or implementation of a plan of treatment, including the following:

1.-5. (No change.)

(c) A chiropractic physician may bill for any of the following diagnostic tests, which have recognized reliability and validity and can yield data of sufficient clinical value in the development, evaluation or implementation of a plan of treatment, when clinically supported, subject to the limitations noted:

1. Repetitive stimulation studies [including reflex latency measurements such as F-wave studies, H-reflexes and sympathetic skin responses] and nerve conduction studies inclusive of motor, sensory, F-wave and H-reflex studies;

2. Somasensory evoked potential (SSEP), visual evoked potential (VEP), auditory evoked potentials (AEP), brainstem auditory evoked potential (BAEP) and dermatome evoked potential, or brain evoked potential (BEP) where the extent of response to treatment is not otherwise sufficiently ascertained from subjective reports and by objective findings or other diagnostic tests;

3.-7. (No change.)

(d) (No change.)

13:44E-3.4 Basic pre-test prerequisites and standards for patient evaluation applicable to electrodiagnostic tests and special examinations

(a) A chiropractic physician performing[, requesting] or interpreting electrodiagnostic tests and special examinations shall:

1. Adhere to accepted standards of practice applicable to the performance of such tests[,] relating to clinical justification, reliability, validity, performance technique, interpretation and integration into the plan of treatment;

2. Ensure that tests, if performed by a chiropractic physician, are performed personally or under his or her immediate personal supervision and direction; [and]

3. Assure that professionally responsible and scientifically sequential pre-testing determinations are followed[.];

4. Take and document, in the patient's record, a relevant history of the complaints presented by the patient. Chiropractic records shall meet acceptable clinical standards and contain such pertinent information including height, weight, past medical and surgical history and other information that may influence the outcome or interpretation of the testing;

5. Perform, at a minimum, a problem-focused examination;

6. Establish and document in the patient's record, a provisional diagnosis with clinical correlation; and

7. Abide by appropriate standards of informed consent explaining potential risks, potential benefits and other clinical options.

(b) A chiropractic physician [contemplating] requesting the performance of electrodiagnostic tests and other special examinations with respect to a specific patient shall first:

1.-5. (No change.)

(c) A chiropractic physician who has complied with the requirements of (b)1 through 5 above may [perform] request electrodiagnostic tests or special examinations[,] if the results of tests selected are expected to:

1.-3. (No change.)

(d) A chiropractic physician who has complied with the requirements of (b)1 through 5 above may refer a patient to another chiropractic physician or other appropriately licensed and trained practitioner to determine the need for, and the performance and interpretation of, an electrodiagnostic test or a special examination by means of a request for professional consultation, provided the referring chiropractic physician:

1. (No change.)

2. Directly communicates with the practitioner who is to perform the test, prior to the referral, as is professionally appropriate in the circumstances.

13:44E-3.5 Educational prerequisites applicable to electrodiagnostic tests and special examinations; certificate requirement

(a) A chiropractic physician seeking to perform electrodiagnostic tests and special examinations shall:

1. Be trained and skilled in the knowledge of:

i.-iv. (No change.)

v. Laboratory hygiene and [sterile] aseptic technique to prevent transmission of infectious diseases;

vi. (No change.)

vii. The precepts of ethical practice so as to limit test utilization to the patient's best interests[.];

2. Successfully complete (and retain certification of completion of) [a training] course [in] work consisting of 120 hours of classroom and practical, hands-on instruction and an examination demonstrating competency in the performance of the pertinent tests, approved by the Board:

i. [Offered] Provided on the [college] premises of an accredited college recognized by the New Jersey State Board of Chiropractic Examiners; [or]

ii. Received in a postgraduate program sponsored by a college of chiropractic recognized by Council of Chiropractic Education; [and] or

iii. Provided at an accredited medical school or licensed health care facility; and

3. Within 60 days of the applicant's receipt of an application form, submit to the Board the completed application form seeking approval of the undergraduate or postgraduate course referred to in (a)2 above, along with [a] the one-time certification fee [of $ 50.00 pursuant to] set forth in N.J.A.C. 13:44E-2.5, which the Board shall act upon within 90 days of its receipt of the application.

[(b) A chiropractic physician whose training has been obtained prior to March 1, 1999, shall, by March 31, 1999, submit to the Board an application for approval by evaluation of equivalency of training and competency. Chiropractic physicians who have performed electrodiagnostic tests and special examinations prior to March 1, 1999, who have filed a timely application with the Board, may continue to perform such tests pending Board action on the application.]

[(c)] (b) A chiropractic physician performing or offering to perform electrodiagnostic tests or special examinations shall comply with the applicable [heightened] standards of accepted practice for practitioners engaged in like professional conduct. A chiropractic physician performing or offering to perform electrodiagnostic testing who does not fully comply with all requirements set forth in this section may be found to be engaging in misrepresentation, deception, gross or repeated malpractice or negligence or incompetence, professional misconduct, and/or any other disciplinary ground authorized by applicable law or rules.

Recodify existing (d) and (e) as (c) and (d) (No change in text.)

13:44E-3.6 Informed consent; equipment; preparation for and performance of the electrodiagnostic test

(a) [Both the] The chiropractic physician [who has requested the performance of] performing an electrodiagnostic test or special examination [and the chiropractic physician performing such test] shall provide the patient with a written description of the test addressing the risks involved in disorders in homeostasis, infectious diseases, and contraindications for electrodiagnostic testing, for example, the presence of a pacemaker, if pertinent.

(b) A chiropractic physician performing any electrodiagnostic test or special examination shall ensure that all equipment used in the performance of electrodiagnostic tests and special examinations:

1.-3. (No change.)

(c) A chiropractic physician performing an electrodiagnostic test or special examinations shall:

1.-2. (No change.)

[3. Not repeat such testing except when a prior result on the specific limb was positive, that is, demonstrated pathology amenable to chiropractic care, and then only at scientifically reasonable intervals, or when clinically supported by significant objective documentation;]

3. Consider repeat testing only when:

i. Prior results or current findings are indicative of a deteriorating condition that warrants subsequent monitoring;

ii. The results of the initial test was justifiably suspect; or

iii. There is a change in the patient's clinical condition;

4. (No change.)

5. Provide a report as required by N.J.A.C. 13:44E-3.8 to the [chiropractic physician] practitioner who requested the performance of the electrodiagnostic test or special examination.

13:44E-3.8 Preparation of test report; follow-up

(a) A chiropractic physician who performs an electrodiagnostic test or special examination shall:

1. (No change.)

2. Ensure that if technical difficulties were encountered, the report addresses those difficulties, including but not limited to, artifact production, non-compliance or agitation by the patient, edema, presence of deformity or scar tissue; and

3. Retain, as part of the patient record, any raw data or graphs arising out of a diagnostic test administration[,] in a form [which] that shall be:

i.-ii. (No change.)

(b) A chiropractic physician who has [performed] requested an electrodiagnostic test or special examination shall [provide to] obtain from the [chiropractic physician] practitioner who [requested] performed the test, in addition to the interpretive report required in (a) above, a representative sample of the wave forms or other raw data, as applicable to the particular test, for inclusion in the patient record.

(c) (No change.)

(d) A [chiropractic physician] practitioner who requested that a chiropractic physician perform electrodiagnostic test or special examination may request, with the patient's consent, a second opinion from another licensed chiropractic physician or medical doctor, trained and skilled in the performance and interpretation of electrodiagnostic tests. The patient shall not be caused to incur an additional charge for the second opinion unless the patient specifically consents or the patient's insurance carrier approves such expense as may be incurred. If the consultant to whom the patient is referred intends to charge for the consultation, neither that consultant nor the referring chiropractic physician shall have a significant beneficial interest in the practice of the other.

13:44E-3.9 Limitations on referrals

(a) (No change.)

(b) Nothing in this section is intended to prevent a chiropractic physician from referring a patient to another practitioner for consultation.

13:44E-3.10 Fees

(a) The chiropractic physician performing a diagnostic test for which a charge is authorized, prior to performance of any such test, shall ensure:

1.-2. (No change.)

3. That the fee shall not violate N.J.A.C. 13:44E-[2.13]2.11, which prohibits excessive fees.

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