By Elizabeth Fenton
Copyright © 2001 by University of the McGeorge School of Law
JD, McGeorge School of Law, University of the Pacific
to be conferred May 2003
B.A., Economics & Political Science, University of California, Riverside, 1990
Experts estimate auto insurance fraud costs consumers in California between $500 million and $8 billion annually. Cal. Sen. Stand. Ins. Comm. Rpt. "Fraud on Wheels", 1999-2000 Sess. 26 (Feb., 2000) [hereinafter "Fraud on Wheels"]. This includes the inflating of medical claims, the filing of fraudulent claims by health care professionals, capping, and operating fraud mills. Capping, or orchestrating the referral of cases to chiropractors for a fee, remains a widespread activity despite being illegal. Id. at 33. 'Fraud mills' are professional practices, such as offices for doctors, lawyers, or chiropractors that specialize in creating and processing fraudulent insurance claims. Cal. Sen. Floor, Analysis of SB 1988, at 7 (Aug. 30, 2000).
In 1999, the Senate Insurance Committee held hearings to investigate the overall problem of auto insurance fraud in California, including one of the contributing factors: whether disciplinary actions are being taken against health care professionals who commit insurance fraud. Proposition 44 is a product of the work done by the Senate Insurance Committee and placed in SB 1988, a bill which carried the main recommendations of the hearing and subsequent report, "Fraud on Wheels". Cal. Ass. Floor, Analysis of SB 1988, at 3 (Aug. 26, 2000). Among these recommendations was the targeting and invoking of licensure penalties for chiropractors convicted of insurance fraud. Cal. Sen. Floor, Analysis of SB 1988, at 2 (Aug. 30, 2000).
Specifically, the Legislature proposes to place sections 5 and 6 of SB 1988, relating to the Board of Chiropractic Examiner's (BCE) investigation, disciplinary, and revocation mandates on the March 2002 ballot as Proposition 44. This initiative would add two new sections to the Business and Professions Code which would make it unprofessional conduct for a chiropractor to procure patients through the employment of runners, cappers, or steerers and requires the BCE to revoke the license of any chiropractor upon the second conviction or conviction of multiple counts of certain insurance fraud offenses. Cal. Bus. & Prof. Code §1003 (Parker's 2001). In addition, it would require the BCE to investigate a licensed chiropractor against whom an information or indictment has been filed alleging involvement in false or fraudulent insurance claims or settlements. Id. at §1004.
The BCE is unusual among the state regulatory entities since it is one of only two professional boards established by voter-approved initiative, the Chiropractic Act of California, rather than by legislative action. Cal. Bus. & Prof. Code, Stat. 1923 p lxxxvii, initiative measure approved Nov. 7, 1922, effective Dec. 21, 1922 (Parker's 2001). Accordingly, any changes to the Chiropractic Act which affect the powers and duties of the BCE, such as those contained in SB 1988, must be placed on the ballot as an initiative statute for voter approval. Cal. Const. art. II, §10(c).
According to the proponents of Proposition 44, if voters pass this measure in March of 2002, insurance fraud will be reduced in California. Cal. Sen. Floor, Analysis of SB 1988, at 2 (Aug. 30, 2000). Since the only opposition to these provisions during the legislative debate, the California Chiropractors Association (CCA), is not opposing Proposition 44, it is unlikely that there will be any opposition at all to this measure on the ballot. In addition, the changes in the law proposed by Proposition 44 appear straightforward. Since these provisions were thoroughly debated in the Legislature, and the present version represents a fairly satisfactory approach to the issue from both sides, it is unlikely there will be strong support or opposition to the measure.
This paper reviews the background for Proposition 44 and the existing law governing the chiropractic profession, raises several drafting issues, and concludes with the public policy considerations.
A. Existing Law
California state law establishes, by initiative statute adopted by the voters in 1922, the State Board of Chiropractic Examiners (BCE), and requires the BCE to license and regulate chiropractors in the state of California. Cal. Bus. & Prof. Code, Stat. 1923 p lxxxvii, initiative measure approved Nov. 7, 1922, effective Dec. 21, 1922 (Parker's 2001). Therefore, any provision that has an affect on the powers and duties of the BCE, whether it changes the Chiropractic Act or another provision of law, must be submitted to the voters for approval consistent with the initiative statute. Cal. Const. art. II, §10(c). However, section 12.5 of the Chiropractic Act makes two exceptions relating to fees and per diem. Cal. Bus. & Prof. Code, Stat. 1923 p lxxxvii, initiative measure approved Nov. 7, 1922, effective Dec. 21, 1922, §12.5 (Parker's 2001). The Legislature has the authority to fix the amount of fees paid by licensees and the amount of per diem for board members without the need for voter approval. Id.
The Chiropractic Act generally provides for the licensing and regulation of chiropractors. Id. Specifically, under section 4, the BCE may adopt such rules and regulations that it may deem proper and necessary for the performance of its work, the effective enforcement and administration of this act, the establishment of educational requirements for license renewal, and the protection of the public. Id. at § 4. In addition, the Business and Professions Code contains various provisions relating to chiropractors. Cal. Bus. & Prof. Code, chap. 2 Chiropractors (Parker's 2001).
Because the BCE is one of only two professional boards established by voter-approved initiative, rather than by statutory enactment, it is completely independent of the state's main consumer agency, the Department of Consumer Affairs (DCA). This independence distinguishes it from the state's other health professional licensing programs and as a consequence, the BCE is "not subject to any oversight or administrative process review within the executive branch, as are other licensing boards under the DCA." Cal. Jt. Leg. Sunset Review Com. Rpt., Final Recommendations for the Bd. of Chiropractic Examiners, at 2 (2000) [hereinafter JLSRC Report - Final Recommendations]. There are also a number of other provisions under the Business and Professions Code that apply to all other health related licensing boards, but not to the BCE, including provisions such as restraining order authority, board and public member requirements, and injunctive relief. Cal. Bus. & Prof. Code, §§§ 125.7, 452, and 125.5 (Parker's 2001). Therefore, the Legislature must rely on the BCE to implement these requirements through regulation or submit the changes to the electorate for approval if it wants the same provisions to apply to the BCE.
Overall there have been relatively few past legislative amendments to the Chiropractic Act through voter approved initiatives. Cal. Jt. Leg. Sunset Review Com. Rpt., Bd. of Chiropractic Examiners Background Paper for 1999 Public Hearings, at 15 (2000) [hereinafter JLSRC Report - Background Paper]. Of these amendments, most were to the actual Chiropractic Act, unlike SB 1988, which adds new sections to the Business and Professions Code. Id. However, just this year, SB 724, which contains three changes to the Business and Professions Code related to chiropractors, was signed into law without any requirement for voter approval. 2001 Cal. Stat. 728. With regard to the change to the BCE's authority to assess fines contained in the legislation, the Legislative Counsel determined that the Chiropractic Act is broad enough to allow such statutory action so that the changes did not need voter approval. Letter from the Bd. of Chiropractic Examiners to Robin Hartley, Consultant, Jt. Leg. Sunset Rev. Com. (May 8, 2001) (copy on file with Cal. Initiative Review, McGeorge School of Law). The other two provisions were determined to be within the BCE's authority to enact regulations under the Chiropractic Act. Id. These changes in law are consistent with those that apply to other health practitioner boards' statutory authority. Id.
Moreover, under existing insurance fraud provisions in statute, certain activities involving the engaging of runners, cappers, and steerers, or other persons to procure patients are a crime. Cal. Sen. Floor, Analysis of SB 1988, at 7 (Aug. 30, 2000). These terms refer to individuals who orchestrate the referral of cases to attorneys, physicians, and chiropractors for a fee. "Fraud on Wheels" at 33. The various licensing laws include prohibitions against procuring patients or clients through illegal means to commit insurance fraud. Id.
The provisions of SB 1988 to be placed on the ballot as Proposition 44 add two new sections to the Business and Professions Code related to chiropractors who engage in insurance fraud, and to the specific duties of the BCE. While there are other provisions in the bill that deal with chiropractors (i.e., section 4 which requires the District Attorney to notify the BCE whenever a chiropractor is charged with a felony, as specified) this provision does not specifically affect the duties of the BCE, but instead the duties of the District Attorney. Therefore, voter approval of this provision is not necessary.
B. Changes Proposed by Proposition 44
Specifically, SB 1988 added two new sections to the Business and Professions Code, which provides:
SEC. 5. Section 1003 is added to the Business and Professions Code to read:
1003. (a) Except as otherwise allowed by law, the employment of runners, cappers, and steerers, or other persons to procure patients constitutes unprofessional conduct.
(b) A licensee of the State Board of Chiropractic Examiners shall have his or her license to practice revoked for a period of 10 years upon a second conviction for violating any of the following provisions or upon being convicted of more than one count of violating any of the following provisions in a single case: Section 650 of this code, Section 750 or 1871.4 of the Insurance Code, or Section 549 or 550 of the Penal Code. After the expiration of this 10-year period, an application for license reinstatement may be made pursuant to subdivision (c) of Section 10 of the Chiropractic Act; Cal. Bus. & Prof. Code §1003 (Parker's 2001).
SEC. 6. Section 1004 is added to the Business and Professions Code, to read:
1004. The State Board of Chiropractic Examiners shall investigate any licensee against whom an information or indictment has been filed that alleges a violation of Section 550 of the Penal Code or Section 1871.4 of the Insurance Code, if the district attorney does not otherwise object to initiating an investigation. Cal. Bus. & Prof. Code, §1004 (Parker's 2001).
These provisions propose three substantial changes in law. First, §1003 (a) makes it unprofessional conduct for chiropractors to employ runners, cappers, steerers, or other persons to procure patients. Cal. Bus. & Prof. Code §1003 (Parker's 2001). Second, §1003 (b) would mandate the BCE to revoke a chiropractor's license for 10 years upon a second conviction or conviction of more than one count in one single case of certain insurance fraud offenses. Id. Finally, §1004 requires the BCE to investigate any licensee against whom information or an indictment has been filed alleging a provision prohibiting conduct involving false or fraudulent insurance claims or statements. Cal. Bus. & Prof. Code, §1004 (Parker's 2001).
The changes proposed by Proposition 44 appear straightforward. Because the provisions of the initiative had the benefit of being fully debated in the legislative process, there do not seem to be any major drafting issues that would affect the enactment of the initiative. The actual text does not appear to be ambiguous or subject to varied interpretation. However, a minor question may arise as to a provision omitted from the Legislative Counsel's digest on one of the requirements of SB 1988. In addition, there is an overall concern as to the somewhat confusing and inconsistent placement of the entire body of authority that regulates the chiropractic profession.
First, while Business and Professions Code §1003 (a) would make it unprofessional conduct for chiropractors to employ runners, cappers, steerers, or other persons to procure patients, the Legislative Counsel's digest of the final version of the bill (not the statute) does not list this as a new requirement under the legislation. Therefore, there may be a question as to the intent of the legislation. However, the Legislative Counsel indicated that as long as the change was clearly stated in the actual statute and approved by the voters, it would be enacted into law. Telephone Interview by Bill Gage, Chief Consultant to Sen. Bus. & Prof. Com. with Al Gress, Chief Dep. Leg. Counsel (Sep. 28, 2001).
In addition, because the changes proposed by SB 1988 would add new sections to the Business and Professions Code and not the Chiropractic Act itself, it may be advisable for consistency and clarity, to re-organize the statutes related to regulation of the chiropractic profession. There are several problems created by the placement of multiple sections in the codes. First, it is confusing not to have all of the body of law regulating chiropractors as a profession in one place. To make matters worse, the Chiropractic Act is listed as an Appendix in Parker's 2001 California Business and Professions Code and in Deering's Business and Professions Code Annotated of the State of California, 2001 Pocket Supplement, but on the other hand, incorporated into the Business and Professions Code in West's Annotated California Codes.
Therefore, as noted before, most of the changes in law relating to the chiropractors were actually placed on the ballot as amendments to the Chiropractic Act itself, but other changes made amendments to the Business and Professions Code instead. For example, SB 1988 amends the Business and Professions Code, not the actual Chiropractic Act, but was still required to be submitted to the voters since it made changes to the duties of the BCE. In addition, there have been changes to the Business and Professions Code related to chiropractors that the Legislative Counsel determined to be within the Legislature's authority to make through amendments to the codes, such as SB 724 discussed previously, without the need for voter approval. 2001 Cal. Stat. 728. However, it is not clear what this authority is based on and thus, whether the amendments should have gone on the ballot for voter approval. However, it is likely that the standard used was the changes were not an "amendment" to the Chiropractic Act. Prop. 103 Enforcement Project v. Quakenbush, 64 Cal. App. 4th 1473, 1484-1485 (1998). The only other change has been to the portion of the Act that grants the Legislature specific authority to set fees and compensation without voter approval. Cal. B & P Code, Stat. 1923 p lxxxvii, initiative measure approved Nov. 7, 1922, effective Dec. 21, 1922, §12.5 (Parker's 2001).
Finally, to compound the problem of multiple and conflicting sections in the codes, the three different code books are not consistent or clear in the references to the Act and need for voter approval. First, Parker's 2001 California Business and Professions Code which reflects the new Business and Professions Code sections contained in SB 1988, does not make reference to the requirement that the provisions still must be approved by the voters. Cal. Bus. & Prof. Code, §§1003, 1004 (Parker's 2001). However, West's does make this specific reference by clarifying that "[T]ext operative upon approval by voters in the next statewide election." Cal. Bus. & Prof. Code, §§1003, 1004 (West 2001 Cum. Pocket Part). Therefore, anyone looking at Parker's would assume that Business and Professions Code §§1003, 1004 is currently in effect. Finally, Deering's does not even include the new §§1003, 1004.
In order to provide a more uniform and consistent body of law on the regulation of the chiropractic profession, the author recommends that the Chiropractic Act be codified into statute and the Business and Professions Code sections incorporated within it, so that any further changes are made in the Act only. In addition, the Legislature may want to specify that only certain key provisions (such as those affecting a chiropractor's scope of practice), and not the regulatory provisions consistent with all other health-related boards, would still require voter approval in the future. (See below in Public Policy Considerations.) Therefore, when a change in law is made to any provision affecting the powers and duties of BCE, only the Chiropractic Act would be amended and voter approval would only be necessary for the major provisions as specified. This would not only alleviate both the existing and future confusion in the law regulating the chiropractic profession, but also the necessity to go to the ballot for minor, regulatory changes to the Act. The author has made these recommendations to the Chair of the Joint Legislative Sunset Review Committee who has indicated that they will be discussed in December, 2001 when the Board of Chiropractic Examiners comes up for legislative review. Telephone Interview with Bill Gage, Chief Consultant to the Sen. Bus. & Prof. Com. (Oct. 1, 2001).
The changes proposed by Proposition 44 do not appear to raise any Constitutional concerns either under the state or federal constitutions.
A. Ballot Arguments
The California Chiropractors Association (CCA) initially opposed SB 1988 on the grounds that the decision to discipline or revoke a provider's license should be left up to the respective licensing boards. Letter from CCA to the Hon. Jackie Speier, Author of SB 1988 (July 10, 2000) (copy on file with Cal. Initiative Review, McGeorge School of Law). However, the CCA indicated they appreciated the attempt in SB 1988 to punish health care providers who commit insurance fraud. Id. In reviewing the legislative history, the CCA was able to minimize the permanent license revocation that was in the original version of the bill by getting the author to amend the bill to make it a tiered revocation that would only last for 10 years. However, the author did not change the language to make it discretionary by the board, primarily because of the concern that most boards, including the BCE, wait for criminal convictions before beginning licensing actions, and licensees may be allowed to continue to practice despite criminal convictions for auto insurance fraud. Cal. Sen. Floor, Analysis of SB 1988, at 7 (Aug. 30, 2000). Faced with testimony that insurance fraud is not a priority for BCE and a concern that CCA may be perceived as trying to protect "bad doctors", CCA decided not to actively lobby against the bill when it passed the Legislature and went to the Governor's Desk. Interview with Kristine Schultz, Dir. of Gov. Affairs of CCA (Sep. 14, 2001).
According to Ms. Kristine Schultz, Director of Governmental Affairs of CCA, her organization remained opposed to SB 1988 even though it was not officially listed in opposition on the final floor analysis and did not actively lobby against the bill (it passed the Assembly Floor 63-13 and the Senate Floor 40-0). However, CCA sent an opposition letter to the Governor on September 12, 2000, reiterating its earlier concerns, "[A]lthough we appreciate the intent of SB 1988, which is to take decisive steps to punish healthcare providers who commit fraud, we believe that the decision to investigate, discipline or revoke a provider's license should be left to the respective governing boards." Letter from CCA to Gov. Gray Davis, Sep. 12, 2000) (copy on file with Cal. Initiative Review, McGeorge School of Law). The CCA has decided not to take a position on the ballot initiative. Telephone Interview with Kristine Schultz, Dir. of Gov. Affairs of CCA (Oct. 16, 2001).
B. Policy Considerations
Proposition 44 raises two public policy considerations as to the specific language in the bill and one general concern as to whether it may be more efficient to put some of the regulatory duties of the BCE under legislative authority rather than having to be placed on the ballot for voter approval each time there is a change.
1. Should disciplinary actions for chiropractors be left at the discretion of the BCE?
The CCA maintained in the legislative debate on SB 1988 that the decision to discipline
or revoke a provider's license should be left up to the respective licensing boards.
Letter from CCA to the Hon. Jackie Speier, Author of SB 1988 (July 10, 2000) (copy
on file with Cal. Initiative Review, McGeorge School of Law). The CCA argued that
if the provision in the bill mandating the license revocation were made permissive,
it would eliminate the need to place the BCE mandates on the ballot in order to amend
the Chiropractic Act. However, in the CCA's position letters, which would normally
provide a rationale for their position, there was very little indication of why a
permissive versus mandatory license revocation was a better public policy. Id. In
the initial hearing on SB 1988 in the Senate Committee on Public Safety, the analysis
did mention that CCA was concerned that the permanent mandatory license revocation
may be too harsh in some circumstances since insurance fraud covers a broad range
of acts. Cal. Sen. Com. on Public Safety, Analysis of SB 1988, at 14 (April 25, 2000).
The issue was raised only once again in the legislative debates on SB 1988 in the Assembly Committee on Public Safety hearing on August 8, 2000. Cal. Ass. Com. on Public Safety, Analysis of SB 1988, at 7 (Aug. 8, 2000). The analysis commented that it was unclear as to whether there would be an impact from a concurrent disciplinary investigation of a licensed chiropractor on a criminal action. Id. Generally, the BCE is permitted to bring disciplinary actions against a licensee whether or not a criminal prosecution is pending or even in situations where there has been an acquittal of criminal charges. Id. The BCE may still be able to bring a disciplinary action due to the lower standard of proof than in a criminal trial. Id. It went on to say, "[H]owever, this bill's mandate that professional licensing boards immediately initiate disciplinary proceedings in case of insurance fraud remove all discretion where the circumstances may justify a different course of action." Id.
The Senate Committee on Insurance hearing reported that the BCE treats auto insurance fraud as a second priority and is inadequately funded in the fight against this problem. "Fraud on Wheels" at 25. Law enforcement reported that the BCE generally waits to start an investigation or take disciplinary action until after a criminal conviction. Id. at 33. The committee stated that, "[T]he standard of proof in a criminal case is much higher than in a licensing hearing and conviction is, therefore, less certain. The public interest is thwarted by the routine failure to take licensing action until a criminal conviction is obtained." Id. The proponents argue that it is wrong to wait for the outcome of a criminal trial, with its higher burden of proof, before even starting an investigation. Id. If the board waits for a criminal conviction before starting a disciplinary proceeding, it may allow a licensee to continue to practice despite the criminal conviction. Cal. Sen. Floor, Analysis of SB 1988, at 8 (Aug. 30, 2000).
2. Despite the change in law to require the BCE to take disciplinary action, is there still an issue of inadequate funding of the BCE that may prevent the effectiveness of the new requirements?
One of the problems faced by the BCE and other boards in fighting insurance fraud is the lack of funding for investigations. "Despite the increased anti-fraud funding to the California Highway Patrol, Department of Insurance, and district attorneys, the state licensing boards remain woefully underfunded to fight insurance fraud." Cal. Ass. Floor, Analysis of SB 1988, at 4 (Aug. 26, 2000).
The Senate Committee on Insurance hearing also reported that lack of funding for the BCE prevents adequate enforcement of the law, specifically that the BCE which regulates 13,000 licenses, has only one employee to review 500 to 600 complaints annually. "Fraud on Wheels" at 27. Last year, of the 63 cases taken to disciplinary action; 20 dealt with insurance fraud." Id.
If the voters pass Proposition 44 next year, the BCE will likely see an increase in costs in order to investigate all instances of insurance fraud prior to the conclusion of a criminal action. However, "this bill does not appropriate additional funding for the increased workload that the boards may experience. Without additional funding, disciplinary investigations of other matters that previously may have been reviewed immediately may now have to be investigated at the conclusion of the criminal matter." Cal. Ass. Com. on Public Safety, Analysis of SB 1988, at 7 (Aug. 8, 2000). Thus, even if the BCE is required to start an investigation, it may lack the funding to perform its new responsibilities or other investigations may suffer as a result. However, the proponents may argue that the threat of a mandatory disciplinary action still provides a pretty strong deterrent against committing insurance fraud.
The concern over inadequate funding of the BCE was clearly recognized by the committee in their report, but not addressed in the legislation. Recommendations were made in the Senate Insurance Committee Report that the BCE should coordinate with other state licensing agencies and the State Bar, forming a task force to identify ways to coordinate resources to further reduce auto insurance fraud and imposing a $1.50 charge per vehicle on auto policies for purposes of fighting insurance fraud. "Fraud on Wheels" at 32. In addition, the report recommended additional staff for the BCE to investigate insurance fraud, commenting that without additional money, this regulatory entity will not focus resources on auto insurance fraud. Id. at 33.
3. Should the BCE's structure as an initiative act be modified so that all general requirements for other health-related boards (and future provisions) apply to the BCE without the requirement for voter approval for each change?
As previously stated, because of BCE's uniqueness in its formation as an initiative act, generally any changes must be placed on ballot for voter approval. It is argued that this allows the BCE to operate as a fourth branch of government, since it is not actually a part of the Department of Consumer Affairs (DCA) like all other boards." Cal. Sen. Com. on Bus. & Prof., Analysis of SB 2034, at 4 (May 8, 2000). The BCE has operated independently of the normal control mechanisms that are applicable to other boards of the state. Id. Over the last decade, there has been a major concern that the BCE has not been effectively protecting consumers because very few enforcement actions were initiated and the BCE was not considered responsive to consumer complaints. Id. at 3. Even though there have been some improvements in the operations of the BCE, there are still concerns about its overall effectiveness in regulating the chiropractic profession. Id. Despite recommendations from the Joint Legislative Sunset Review Committee (JLSRC) staff, the Department of Consumer Affairs (DCA), and the Center for Public Interest Law to the Legislature to pursue statutory changes to incorporate the BCE into the DCA in the same manner as all other health professional licensing programs, the profession opposed this change and it was not adopted by the Legislature. JLSRC Report - Background Paper at 15. Instead, the Legislature will review the BCE in December of 2001 to evaluate the extent to which its efforts to improve consumer protection have been successful. Cal. Sen. Com. on Bus. & Prof., Analysis of SB 2034, at 4 (May 8, 2000).
However, there may be support to require the BCE to be subject to all regulations that virtually every other health related licensing program are subject to, such as diversion programs, inspection authority, injunctive relief, board and public member requirements, examination and review requirements, and all future requirements or changes made by the Legislature that apply to all health related boards under DCA. JLSRC Report - Final Recommendations at 2. Because the changes go beyond the Legislature's authority to impose on the BCE, and the BCE may not have the statutory power to adopt these regulations, the Legislature will be evaluating this fall what, if any, additional action may be required to grant this authority. Telephone Interview with Bill Gage, Chief Consultant to the Sen. Bus. & Prof. Com. (Oct. 1, 2001). The committee will consider codifying the Chiropractic Act into statute and consolidating the Business & Professions Code within it, whereby it specifies that certain provisions, and any future provisions that every other health related licensing program is subject to, do not have to be enacted by voter approval. Id. Of course, this entire proposal would first need to be submitted to the voters for approval so as not to thwart the will of the people in the future.
In March, California voters will decide whether to enact provisions into law which impose mandatory disciplinary actions and investigations against chiropractors that are charged with committing insurance fraud. Supporters of the measure believe that a mandatory, rather than a discretionary requirement, will ensure that the Board of Chiropractic Examiners makes insurance fraud a top priority. However, without adequate funding to the BCE, these new provisions in law may not be as effective.
While the language of the initiative is fairly clear and unambiguous, there are several drafting concerns as to the entire Chiropractic Act and related Business and Professions Code sections.