SDCA understands that it is the responsibility of Chiropractors to review the current laws and offer options based on supporting evidence.
General impression of the BOCE Laws
SDCA finds the BOCE Laws disorganized, inconsistent and unclear with no logical order. The Rules and Regulations should provide a clear pathway for Chiropractors to follow and there should be little to no room with in the Regulations for interpretation. The following sections will provide detailed examples of problems within the BOCE Rules and Regulations.
Organization of Articles and Sections
There appears to be no organization of Articles 1 and 2 and their Sections. Many of the Sections have no correlation to the Articles they are under. The numbering system of the Sections is unorganized with no clear information on how the sections relate to one another or the Article they are under.
Example 1
Article 1 is titled General Provisions and it contains Section 302 Practice of Chiropractic. Article 2 is titled Practice of Chiropractic but does not contain Section 302 Practice of Chiropractic. SDCA sees having an Article and a Section with the same name, especially when they are listed in different parts of the regulation as an example of gross disorganization.
Example 2
Many of the Sections are numbered with a decimal point, indicating that they are related to the previous section with the same number. There are many instances that the Section number with the decimal point has nothing to do with the previous section and there are sections that do coordinate the decimal point sections together. SDCA sees this practice as a disorganized numbering system that may lead to misunderstanding of the BOCE Laws.
SDCA finds that the Rules and Regulations should be completely revised and updated and that their current unorganized state constitutes unprofessional conduct and is a danger to the public.
Pro-active information from BOCE
The mission of the Board of Chiropractic Examiners is to protect the health, welfare, and safety of the public through licensure, education, and enforcement in chiropractic care.
Every month the BOCE sends out a relicensing bill and the only educational information that has been included for over a decade is a warning to pay your taxes or the BOCE will take your license. SDCA believes that this monthly notice could be better used to inform Chiropractors of regulations and their interpretation of those regulations.
Another educational tool that the BOCE fails to use is the FAQ section of their web site. This section has been blank since the site was first launched decades ago. Why even have a FAQ page if you are never going to use it.
The best way to protect the public is to educate Chiropractors proactively when ever possible. SDCA sees the lack of proactive education by the BOCE as unprofessional conduct that endangers the public.
Disciplinary Action
Only sections listed below state that there will be disciplinary action taken for failure to follow that section. It is logical for Chiropractors to believe that the sections listed below are the only ones that have a disciplinary action.
If disciplinary action can be taken for failure to follow any section what is the purpose of informing the Chiropractor that this section is subject to disciplinary action.
SDCA views it as unethical and unprofessional for the BOCE to not follow its own laws as written, and to impose disciplinary action for a section not listed below without first informing the Chiropractor and giving them the opportunity to correct the issue.
SDCA believes that a more professional approach would be to list the specific disciplinary action that would be taken for the failure to follow each individual section of the BOCE Laws.
Only the below sections state that there will be disciplinary action taken for failing to follow the Regulation.
- Sec. 304
- Sec. 316
- Sec. 319.1
- Sec. 321.1
- Sec. 366
- Sec. 372
- Sec. 390.5(c)
Section 370 License Renewal Fees
The increase in fee from $250 to $313 went into effect on January 1, 2019. It has been over 2 years and the BOCE Rules and Regulations still show $250. SDCA believes this to be another example of disorganization regarding the BOCE Rules. If a Chiropractor failed to get their CE completed for two years, what would the BOCE do to that Chiropractor.
Standard of Care
The only place that the BOCE Laws mention Standard of Care is in Section 318.1 Standard of Care Regarding Manipulation Under Anesthesia (MUA).
SDCA sets the Standard of Care for Therapeutic and Non-Therapeutic Chiropractors and believes the BOCE should respect those guidelines since they are set by the local community of Chiropractors.
SDCA recognizes the use of a Standard of Care from other Associations, so long as the standard is being applied to the correct philosophy of Chiropractic being practiced. It would be improper to apply a therapeutic standard to a Non-Therapeutic Chiropractor or vise a versa. Other associations may include but are not limited to:
- ICA
- ACA
- CCA
- IFCO
The Standard of Care may be extremely different depending on the type of Chiropractic practice. SDCA believes that the BOCE should evaluate Chiropractors on their chosen Standard of Care and not the Standard of Care of a different type of Chiropractic practice.
SDCA believes that the BOCE should include a Standard of Care Section in the Regulations that identifies the specific regulations for establishing a Standard of Care.
SDCA sees the lack of clarity and direction regarding Standard of Care in the Regulations as unprofessional conduct by the BOCE that is endangering the public.
Section 319.1 Informed Consent
SDCA finds the regulation on Informed Consent to be poorly written and difficult to implement in practice.
According to the regulation:
A licensed Doctor of Chiropractic shall verbally and in writing inform each patient of the
material risks of proposed care. “Material” shall be defined as a procedure inherently involving
known risk of serious bodily harm. The chiropractor shall obtain the patient’s written informed
consent prior to initiating clinical care.
In order to follow this regulation to the letter a Chiropractor must perform a physical exam/evaluation first in order to determine “proposed care”.
If a Therapeutic Chiropractor is performing potentially dangerous differential diagnostic tests the patient would have to complete an Informed Consent for each test.
If a Non-Therapeutic Chiropractor is using a safe and specific approach there may be no material risk. In this situation, according to the current regulation, the Chiropractor would not need to use an Informed Consent.
SDCA sees the use of an Informed Consent as needed and useful piece of documentation, but the regulation needs to be revised to include parameters for both Therapeutic and Non-Therapeutic Chiropractic.
Section 309 Definitions
SDCA believes that the following definitions should be added to provide clarity in the laws.
Negligence and Gross Negligence
- SDCA recognizes Negligence and Gross Negligence as degrees of the same thing, and thus Gross Negligence includes all attributes of negligence to a greater degree.
- California defines negligence as any negligence by an act or omission of a medical practitioner in performing his/her duty is known as medical negligence. Medical negligence happens when the medical practitioner fails to provide the care which is expected in each case thus resulting in injury or death of the patient.
- California defines gross negligence as either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct. Gross negligence is the absence of even slight care.
- SDCA adopts the above listed definitions and sets the Standard of Negligence and Gross Negligence to also include the following:
- Causing documented injury or death.
- Failing to make changes after a BOCE written warning regarding practice procedures.
- The SDCA does not recognize Negligence or Gross Negligence for Medical documentation errors unless the Chiropractor has been given a written warning and chooses to disregard that warning.
- SDCA sees Gross negligence as a serious charge that is reserved for extreme departure from the ordinary Standard of Care/ SDCA SOP, and not for errors in procedures that did not result in actual harm.
Section 302 (a) Scope of Practice
Nothing in this section states that a Chiropractor must diagnose or provide treatment.
Section 302(a) and 318 are in direct conflict with each other regarding diagnosis and diagnostic procedures like patient history. (see SDCA Law Review of Section 318)
SDCA recognizes that a Non-Therapeutic Standard of Care will view the use of diagnosis and treatment as practicing medicine.
SDCA limits the Non-Therapeutic Scope of Practice to the identification of Vertebral Subluxation and to helping the bodies Innate Intelligence correct Vertebral Subluxations.
SDCA believes the BOCE should clarify that a Chiropractor is not required to perform all items listed in the Scope of Practice.
Section 317 Unprofessional Conduct
Section 317 (a) Gross Negligence
SDCA believes that Gross Negligence needs to be defined in Sec. 309 (see definition above under Sec. 309)
Section 317 (b) Repeated negligent acts
SDCA sets the standard that repeated negligent must occur more than once and can not be for procedural mistakes unless previously given written notice by the BOCE.
Section 317 (c) Incompetence
SDCA sets the following Standard for Incompetence of a Chiropractor:
- The Chiropractor does not understand or follow an established Standard of Care.
- The Chiropractor does not understand or follow the BOCE Laws after written direction has been given.
- The Chiropractor is found to be mentally ill to an extent they are unable to take care of themselves or provide Chiropractic to other people.
Section 317 (d) The administration of treatment or the use of diagnostic procedures which are clearly excessive as determined by the customary practice and standards of the local community of licensees
- SDCA sets the Standard for this Section to include following one of the below SDCA Standards or other recognized Standard of Care.
- 2nd Paradigm SOP/Therapeutic Standard of Care.
- 3rd Paradigm SOP/Non-Therapeutic Standard of Care.
Section 317 (e) Any conduct which has endangered or is likely to endanger the health, welfare, or safety of the public
SDCA sets the Standard for this Section to include following one of the below SDCA Standards.
- 2nd Paradigm SOP/Therapeutic Standard of Care..
- 3rd Paradigm SOP/Non-Therapeutic Standard of Care.
Section 317 (f) The administering to oneself, of any controlled substance, or the use of any dangerous drug or of alcoholic beverages to the extent or in a manner as to be dangerous or injurious to oneself,
or to any other person or to the public, or to the extent that the use impairs the ability of the person to conduct with safety to the public the practice authorized by the license
This code uses a subjective standard to evaluate the use of any dangerous drug or alcoholic beverages by a Chiropractor regardless if they are seeing patients.
The use of subjective words like dangerous leaves it open to interpretation as to what is dangerous. An argument can be made that any drug or alcohol use is dangerous.
SDCA believes the BOCE should revise this regulation with clear measurable standards and that those standards should not impact the rights of the Chiropractor when not seeing patients.
Section 317 (m) Violating or attempting to violate, directly or indirectly, or assisting in or abetting in the
violation of, or conspiring to violate any provision or term of the Act or the regulations adopted
by the board thereunder;
According to this section any violation of the Act or the Regulations no matter how minor can be cause for a charge of Unprofessional Conduct.
SDCA sees this section as an overreach by the BOCE, constitutes unprofessional conduct by the BOCE and should be removed from the regulations.
317 
Not referring a patient to a physician and surgeon or other licensed health care provider
who can provide the appropriate management of a patient’s physical or mental condition, disease
or injury within his or her scope of practice, if in the course of a diagnostic evaluation a
chiropractor detects an abnormality that indicates that the patient has a physical or mental
condition, disease, or injury that is not subject to appropriate management by chiropractic
methods and techniques. This subsection shall not apply where the patient states that he or she is
already under the care of such other physician and surgeon or other licensed health care provider
who is providing the appropriate management for that physical or mental condition, disease, or
injury within his or her scope of practice.
One of the major areas of malpractice is in not making the correct referral to another healthcare professional.
Non-Therapeutic Chiropractors recognize that they do not have the knowledge to know what is the proper healthcare professional to refer a patient to when an unusual findings is discovered.
SDCA recommends that the BOCE revise this section to include being able to inform the patient of the unusual findings and allow the patient to seek what ever professional help they feel is necessary.
Section 318 Chiropractic Patient Records/Accountable Billings
SDCA believes that based on the title of this section that a Chiropractor would conclude that Section 318 as being for patient records that are required for a 2nd Paradigm/Therapeutic, Insurance patient.
The confusion that title Section 318 is written for Therapeutic insurance patients, is further solidified by the placement of Section 318.1 Standard of Care Regarding Manipulation Under Anesthesia (MUA). It is logical for a Chiropractor to conclude that Section 318 and Section 381.1 describe a specific set of rules for two distinct types of Chiropractic practices and that is why they are grouped together.
SDCA believes this regulation to be so poorly written that it is impossible for a Non-Therapeutic Chiropractor to follow it with out violating the Sections 302 and Sections 317(d) and (e).
This section is not relevant to 3rd Paradigm/Non-Therapeutic Chiropractic, since the Scope of Practice is limited to helping the body correct Vertebral Subluxation only. This section requires a Patient History, Complaint, Diagnosis and Treatment. Performing any of these would make the 3rd Paradigm/Non-Therapeutic Chiropractor in violation of Section 317(d) and 317(e). (see details below)
SDCA sets the Standard that following sec. 318 as a Non-Therapeutic Chiropractor would constitute the administration of treatment or the use of diagnostic procedures which are clearly excessive as determined by the customary practice and standards of the local community of licensees. SDCA views the use of any treatment or diagnostic procedure including but not limited to the taking of a Patient History, is outside the limited Scope of Non-Therapeutic Chiropractic and thus is excessive. SDCA represents a local community of licensees and thus sets the customary practice and standards.
SDCA sets the Standard that following sec. 318 as a Non-Therapeutic Chiropractor would be conduct which has endangered or is likely to endanger the health, welfare, or safety of the public. SDCA views taking of a Patient History and asking about Complaints are not within the limited Scope of the Non-Therapeutic Chiropractor. Asking about medical diseases and conditions would lead the public to believe that their conditions would be treated by the Non-Therapeutic Chiropractor and would lead the public to delay in seeking proper medical treatment.
SDCA recommends that the BOCE clarify Sec. 318 as a standard for insurance records as the title implies.
SDCA recommends the BOCE develop a new regulation that clearly defines the patient records required for Non-Therapeutic Chiropractic.
SDCA 