INDEPENDENT REGULATORY REVIEW COMMISSION Notice of Comments Issued [40 Pa.B. 3180]
[Saturday, June 12, 2010]Section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)) provides that the Independent Regulatory Review Commission (Commission) may issue comments within 30 days of the close of the public comment period. The Commission comments are based upon the criteria contained in section 5.2 of the Regulatory Review Act (71 P. S. § 645.5b).
The Commission has issued comments on the following proposed regulation. The agency must consider these comments in preparing the final-form regulation. The final-form regulation must be submitted within 2 years of the close of the public comment period or it will be deemed withdrawn.
Reg. No. Agency/Title Close of the Public Comment Period IRRC Comments Issued 16A-415 State Board of Chiropractic
Review of Chiropractic Treatment
40 Pa.B. 1641
(March 27, 2010)4/26/10 5/26/10 ____ State Board of Chiropractic
Regulation #16A-4315
(IRRC #2826)Review of Chiropractic Treatment May 26, 2010 We submit for your consideration the following comments on the proposed rulemaking published in the March 27, 2010 Pennsylvania Bulletin. Our comments are based on criteria in section 5.2 of the Regulatory Review Act (71 P. S. § 745.5b). Section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)) directs the State Board of Chiropractic (Board) to respond to all comments received from us or any other source.
1. Possible conflict with or duplication of statutes or existing regulations.
The Insurance Federation of Pennsylvania (IFP) has submitted comments that state the Board, '' . . . vastly exceeded its jurisdiction in drafting this regulation. As a result, many of its provisions are in direct conflict with existing laws and regulations.'' We agree that the Board's attempt to set standards for chiropractors performing independent chiropractic examinations or chiropractic peer reviews could either duplicate or conflict with the provisions of Pennsylvania's Workers Compensation Act (77 P. S. §§ 101, et seq.), Pennsylvania's Motor Vehicle Financial Responsibility Law (75 Pa.C.S.A. §§ 1701, et seq.), and the regulations promulgated by the Department of Labor and Industry and the Department of Insurance.
In the Preamble to the final-form regulation, the Board should explain how the regulation will be implemented in concert with the laws and regulations noted above. We ask the Board to consult with both Departments and the various segments of the regulated community as it prepares the final-form rulemaking to ensure that this regulation does not duplicate or conflict with the statutes and regulations noted above.
2. Statutory authority.
IFP questioned the Board's authority to set standards and procedures for independent medical examinations and chiropractic peer reviews under the Workers Compensation Act and the Motor Vehicle Financial Responsibility Law. The Board should explain its statutory authority to regulate in these areas when it submits the final-form rulemaking.
3. Need for the regulation.
The House Professional Licensure Committee (Committee) submitted comments that question the purpose of and need for the regulation. We agree with the Committee and ask the Board to provide a more detailed explanation of why this regulation is needed and what problem it is intended to address. In addition, we ask the Board to quantify how many of Pennsylvania's approximately 4,150 licensed chiropractors perform either independent chiropractic examinations or chiropractic peer reviews and how many examinations or reviews are done each year.
4. Section 5.55. Independent chiropractic examination.—Implementation procedures; Clarity.
Subsection (a)(2)
This subsection requires a chiropractor performing an independent chiropractic examination to ''be currently engaged in the clinical practice of chiropractic in this Commonwealth at least 20 hours per week.'' Section 5.56(a)(2), pertaining to chiropractors performing a chiropractic peer review, contains a similar provision. Commentators have questioned how these provisions will be implemented. For example, is the 20 hour per week mandate an average of a chiropractors clinical practice over a year, or must the chiropractor practice 20 hours every week? What is meant by the term ''clinical practice''? Would this include such activities as teaching? Finally, how would the 20 hour requirement be verified? We suggest that the final-form regulation include provisions that define clinical practice and how the 20 hour requirement will be calculated and verified.
Subsection (b)
This subsection lists three circumstances where a chiropractor may not perform an independent chiropractic review. Section 5.56(b) lists the same three circumstances where a chiropractor may not perform a chiropractic peer review. We have concerns with two of the three circumstances.
The first circumstance is if a chiropractor ''had previous professional involvement with patient or provider under review.'' Commentators have noted, and we agree, that this standard is vague. What is meant by the phrase ''professional involvement''? Would this include previous independent chiropractic or peer reviews? Commentators have noted that there may be instances where the insurers would want a patient examined by the same chiropractor. Would this provision limit the number of chiropractors available to perform these reviews? The final-form regulation should clarify the Board's intent for implementing this provision.
The second circumstance is if a ''chiropractor's impartiality may be reasonably questioned.'' Commentators have stated this provision is vague and subjective. We agree that it does not establish a binding norm and suggest that the provision be deleted or written in a more precise manner.
Subsection (c)
This subsection states, ''A chiropractor performing an independent chiropractic examination shall obtain and review the patient record of the currently treating chiropractor.'' Commentators are concerned with the feasibility and practicality of a reviewing chiropractor obtaining the patient record from the treating chiropractor. They believe obtaining the patient record should not be the responsibility of the reviewing chiropractor. They also question who will pay for transfer of the records. We also question how this provision will be administered and ask if it would be more appropriate for the party requesting the review to coordinate the transfer of the patient records.
ARTHUR COCCODRILLI,
Chairperson[Pa.B. Doc. No. 10-1096. Filed for public inspection June 11, 2010, 9:00 a.m.]
