STATE OF WISCONSIN
CHIROPRACTIC EXAMINING BOARD
IN THE MATTER OF RULEMAKING PROCEEDINGS BEFORE THE
CHIROPRACTIC EXAMINING BOARD
ORDER OF THE CHIROPRACTIC EXAMINING BOARD ADOPTING RULES
CLEARINGHOUSE RULE 14-069
ORDER
An order of the Chiropractic Examining Board to create ch. Chir 13 relating to the duty to inform patients of treatment options. Analysis prepared by the Department of Safety and Professional Services.
------------------------------------------------------------------------------------------------------------
ANALYSIS
Statutes interpreted:
Statutory authority:
Explanation of agency authority:
Pursuant to ss. 15.08 (5) (b) and 227.11 (2) (a), Stats., the Chiropractic Examining Board is generally empowered by the legislature to promulgate rules that will provide guidance within the profession and that interpret the statutes it enforces or administers. Section 446.02 (11), Stats., gives express authority to the Chiropractic Examining Board to promulgate rules implementing s. 446.08, Stats., concerning informed consent. The legislature granted this express rule-making provision with the passage of 2013 Wisconsin Act 345. The proposed rule seeks to carry out this legislative mandate by incorporating the new standard regarding informed consent into the current chiropractic rules. Related statute or rule:
None.
Plain language analysis:
On April 23, 2014, the Legislature enacted 2013 Wisconsin Act 345 which granted express rule-making authority to the Chiropractic Examining Board to promulgate rules concerning chiropractors and informed consent. This proposed rule addresses what was previously a common law duty under Hannemann v. Boyson, 2005 WI 94. Under the common law standard, chiropractors were to advise their patients of all alternate viable medical modes of treatment. Chiropractors were held to the reasonable person standard which required chiropractors to inform their patients of information necessary for a reasonable person to make an intelligent decision with regard to treatment. 2013 Wisconsin Act 345 changed the standard for chiropractors from the reasonable person standard to the reasonable chiropractor standard which requires disclosure only of the information that a reasonable chiropractor would know and disclose under the circumstances. The proposed rule creates a new chapter codifying the new standard into the current Chiropractic rules. Summary of, and comparison with, existing or proposed federal regulation:
None.
Comparison with rules in adjacent states:
Illinois: Illinois does not have comparable statutory requirement for chiropractors to obtain informed consent from their patients.
Iowa: Iowa does not have comparable statutory requirement for chiropractors to obtain informed consent from their patients.
Michigan: Michigan does not have comparable statutory requirement for chiropractors to obtain informed consent from their patients.
Minnesota: Minnesota does not have comparable statutory requirement for chiropractors to obtain informed consent from their patients.
Summary of factual data and analytical methodologies:
No factual data or analytical methodologies were used in drafting the proposed rule due to the proposed rule being prompted by the passage of 2013 Wisconsin Act 345.
