TBCE Proposes Amendment to Rule 78.8
Written by Editor   
Thursday, July 23, 2015 10:32 PM

The Texas Board of Chiropractic Examiners (Board) proposes amending Chapter 78, §78.8, concerning Complaint Procedures. The proposed amended rule is necessary in order to remove the requirement for a 120-day hearing that is not found within the Chiropractic Act or the Administrative Procedure Act.  This amended rule was proposed upon a recommendation by the Rule Committee to the Board and approved by the Board for publication. The purpose of the amendment is to remove a requirement for a hearing that is unsupported by statutory provisions mentioned in subsection (g)(1)(C). 

Comments on the proposed amended rule and/or a request for a public hearing on the proposed amended may be submitted to Bryan D. Snoddy, General Counsel, Texas Board of Chiropractic Examiners, 333 Guadalupe St, Tower III, Suite 825, Austin, Texas 78701; fax: (512) 305-6705 or rules@tbce.state.tx.us, no later than 30 days from the date that this proposed new rule is published in the Texas Register.

§78.8.Complaint Procedures.

(a) Filing complaints. A person who has a complaint about a licensee, facility or CRT may file a complaint with the board in person at the board's office, or in any written form, including submission of a completed complaint form. The board adopts the following form in both English and Spanish as its official complaint form which shall be available from the board upon request. A complaint shall contain information necessary for the proper processing of the complaint by the board, including: 

Figure: 22 TAC §78.8(a) (.pdf)

[Figure: 22 TAC §78.8(a)]

(1) complainant's name, address and phone number;

(2) name, address and phone number of the chiropractor, chiropractic facility, CRT or other person, firm or corporation, if known, against whom the complaint is made;

(3) date, time and place of occurrence of alleged violation; and

(4) complete description of incident giving rise to the complaint. 

(b) Categories of complaints and investigation.

(1) The board shall distinguish between categories of complaints as follows:

(A) consumer and patient complaints against chiropractors, CRTs, or chiropractic facilities regarding alleged violations of state law, including the Texas Chiropractic Act, or board rules or orders; 

(B) alleged unauthorized practice of chiropractic by unlicensed individuals, unregistered facilities or CRTs, or by a licensee, facility or CRT while a suspension order or restrictive sanction by the board is in effect; 

(C) licensure, registration or reinstatement applications;

(D) alleged advertising violations by chiropractors or chiropractic facilities.

(2) The board shall prioritize complaints for purposes determining the order in which complaints are investigated, taking into account the seriousness of the allegations made in a complaint and the length of time a complaint has been pending.

(A) The board shall create and maintain a written list of the categories of complaints in order from the most serious to least serious violations of the Texas Chiropractic Act or administrative rules. The list shall also cite the specific rules and statutes that may have been violated, and the fines or other penalties that may be assessed. 

(B) The board shall have this list available at the board office and on the board website for interested parties. 

(C) The board shall use this list to set priorities for the investigation of complaints against licensees with the most serious complaints being of the highest priority. 

(3) All complaints or reports of alleged violations will be investigated by the board. However, anonymous complaints may not be investigated if insufficient information is provided or the allegations are vague, appear to lack a credible or factual foundation, or cannot be proved for lack of a witness or other evidence. The executive director of the board will determine whether or not an anonymous report will be logged in as a complaint for investigation. A complaint shall not be dismissed without appropriate consideration. The board and a complainant shall be advised of a dismissal of a complaint. 

(4) The board staff may initiate an investigation, including the filing of a complaint, on an individual or facility regulated by the board for compliance with the law or board rules or order.

(c) Enforcement Committee.

(1) The President shall appoint an Enforcement Committee to consider all complaints filed with the board. The Executive Director under the direction of the Enforcement Committee chair shall supervise all investigations.

(2) The Enforcement Committee shall have the power to issue subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of books, records, and documents, to issue commissions to take depositions, to administer oaths and to take testimony concerning all matters within the assigned jurisdiction. 

(3) The Enforcement Committee shall determine the disposition of a complaint as provided in this subsection and §78.9 and §78.10 of this title (relating to Disciplinary Guidelines and Schedule of Sanctions, respectively). The Enforcement Committee may delegate the authority to close certain complaints to the Executive Director. 

(4) The Enforcement Committee may schedule an informal conference in a case in order to hear from the complainant and the respondent, in person, or if it believes a conference may facilitate the resolution of the case. A respondent, although not required, is urged to attend the informal conference. A complainant will be given notice of the conference and invited to attend. A complainant is not required to attend an informal conference. 

(5) Informal conferences shall not be deemed to be meetings of the board.

(6) In a case where the Enforcement Committee has made a finding of a violation for which a sanction should be imposed, the committee may direct staff to offer an agreed order to the respondent in an effort to resolve the case informally. If an agreed order is not accepted by the respondent or no agreed order is offered, the case will be referred to the SOAH for formal hearing. The Enforcement Committee shall present an agreed order to the board for its approval once it has been signed by the respondent. Should the board amend the proposed order, the executive director shall contact the respondent to seek concurrence. If the respondent does not concur, the Enforcement Committee shall determine whether negotiations on an agreed order should continue or to refer the case for formal hearing.

(d) Commencement of formal hearing proceedings. Board staff shall commence formal hearing proceedings by filing the case with the SOAH and by giving notice to the respondent as provided §79.2 of this title (relating to Commencement of Enforcement Proceedings).

(e) Recission of probation.

(1) The board may at any time while an individual or facility is on probation upon majority vote rescind the probation and enforce the board's original action suspending such license or registration for violation of the terms of the probation or for other good cause as the board in its discretion may determine. Violations of probation shall be referred to the Enforcement Committee for action under this section. Probation shall not be rescinded without notice and an opportunity for a hearing on whether or not the probation has been violated. 

(2) The board shall maintain a chronological and alphabetical listing of licensees, facilities, and CRTs, who have had their license or registration, suspended or revoked, and shall monitor compliance with each order. Any noncompliance observed as a result of monitoring shall be referred to the Enforcement Committee for action under this section.

(f) Reinstatement. An individual or chiropractic facility whose license or registration has been revoked for a period of more than one year may, after the expiration of at least one year from the date that such revocation became final, apply to the board, on forms provided by the board, for reinstatement. In considering the reinstatement of a revoked license or registration, the board in its discretion may:

(1) deny reinstatement; or

(2) grant reinstatement: 

(A) without condition; 

(B) with probation for a specified period of time under specified conditions; or

(C) with or without reexamination or additional training.

(g) Temporary suspension upon threat to public. The Enforcement Committee or the board, with a two-thirds vote, may temporarily suspend a license to practice chiropractic in the State of Texas if the committee or the board determines from the preponderance of the evidence or information presented to it that continued practice by the licensee constitutes a continuing or imminent threat to the public welfare. The purpose of a temporary suspension is to protect the public until a preliminary hearing can be held.

(1) Such suspension may occur without notice or hearing if at the time the suspension is ordered, a hearing on whether a disciplinary proceeding should be initiated is scheduled not later than the 14th day after the date of suspension.

(A) The purpose of the 14-day hearing is to provide the licensee with notice and an opportunity to review the Board's evidence or information, to present evidence, raise defenses, and to be heard. 

(B) At the 14-day hearing, the only issue presented is whether the temporary suspension should be dissolved or kept in place. If the administrative law judge finds that the Board has competent evidence or information that continued practice by the licensee constitutes a continuing or imminent threat to the public welfare, then the administrative law judge may issue an order keeping the temporary suspension in place pending the initiation of other disciplinary proceedings against the licensee. 

[(C) If a temporary suspension is ordered, the Board shall initiate other disciplinary proceedings within 120 days of the date of the order of temporary suspension. If criminal action is pending against the licensee, a final hearing on such disciplinary proceedings may be deferred until such time as the criminal action is finally adjudicated.]

(2) A second hearing on the suspended license shall be held not later than the 60th day after the date the suspension was ordered. This 60-day hearing shall determine whether the suspension shall remain in effect pending the initiation, prosecution, and final determination of other disciplinary proceedings against the licensee. If the 60-day hearing is not held in the time required, the license is reinstated without further action of the board or committee. 

(3) A hearing held under this subsection shall be conducted by the SOAH. 

(4) The licensee will be notified of a suspension and any hearing scheduled under this subsection by certified mail to the address on file with the Board and by facsimile and/or email if such numbers or addresses are known to the Board. The notice sent by certified mail is legal notice under this section. 

(5) The suspension shall remain in effect pending further action by the board unless an administrative law judge, the committee, or the board orders the suspension rescinded after hearing. 

(6) The licensee shall not practice chiropractic during the duration of the suspension. 

(7) During the suspension the enforcement and investigatory processes will continue.

(8) The licensee may waive either the 14-day or 60-day hearing or may agree that such hearings can be held beyond the statutory deadlines. The temporary suspension shall remain in effect until a hearing is held or is otherwise dissolved.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 6, 2015.

TRD-201502560

Bryan Snoddy

General Counsel

Texas Board of Chiropractic Examiners

Earliest possible date of adoption: August 16, 2015

For further information, please call: (512) 305-6715


Source:  http://www.sos.state.tx.us/texreg/archive/July172015/Proposed%20Rules/22.EXAMINING%20BOARDS.html#31