TBCE: August 20, 2015 Rules Proposals and Changes
Written by Editor   
Thursday, August 20, 2015 10:09 AM

The Texas Board of Chiropractic Examiners met on Thursday, August 20, 2015.  Their agenda included the usual legal, administrative, and chiropractic business.  Also considered were 21 rules changes, some three-dozen enforcement committee cases.  The rules changes included the following:

8.1.1  Discussion and consideration to adopt Rule 71.2 (Petition for Adoption of Rules).  The proposed rule would read:  "A person must submit a petition for adoption of rules in writing via mail, fax, e-mail, or hand-delivery to the Executive Director or General Counsel of the Board. The petition shall contain the following information as applicable and except as may be waived by the Executive Director or designee [Board]:

8.1.2  Discussion and consideration to adopt Rule 72.2 (Application for Licensure).  The proposed rule would insert a new subsection to state "(g) Applicants seeking licensure may be refused admission to the practice of chiropractic for certain prohibited acts in accordance with Chiropractic Act, Occupations Code §201.502.

8.1.3  Discussion and consideration to adopt the amendment of Rule 78.13 (Scope of PracticeThe purpose of the amendment is to modify subsection (a) by substituting the wordchapter for the word section to make clear that the definitions in the section were applicable throughout the chapter. 

8.1.4  Discussion and consideration to adopt the amendment of Rule 78.17 (Spinal Screenings).  The proposed changes are:

 

§78.17 Spinal Screenings.

(a) The purpose of this section is to set forth the minimal standards for conducting out-of-facility spinal screenings. A licensee may offer a spinal screening outside of a registered facility only if they are in compliance with this section.

(b) At all out-of-facility spinal screenings:

(1) the booth, site or location must prominently display the name of the sponsoring facility;

(2) the sponsoring facility must have business cards with contact information readily available to the public;

(3) the licensee must possess on their person the wallet size proof of licensure;

(4) a licensee and/or clinic sponsoring a spinal screening is responsible for ensuring compliance with §77.2 of this title (relating to Publicity); and

(5) a licensee may allow or direct any staff or employee to conduct a spinal screening upon ensuring compliance with §77.5 of this title (relating to Delegation of Authority), and maintaining proof of adequate training.

(c) Any person providing chiropractic services under this section shall wear, on their person a readily visible identification tag that provides the name of the person and whether th person is licensed as a chiropractor under Chapter 201, Occupations Code.

 

The Texas Board of Chiropractic Examiners (Board) proposes new Chapter 78 and §§80.1 - 80.5, concerning General Regulatory Provisions. The new rules are necessary in order to comply with Legislative requirements regarding dual office holding, merit selection principles, sick leave pool, private donors and contract monitoring.

8.1.5  Discussion and consideration to adopt new rule pursuant to Texas Government Code Chapter 574 (Dual Office Holding).  

8.1.6  Discussion and consideration to adopt new rule pursuant to Texas Government Code Chapter 655 (Merit Selection Principles).

8.1.7  Discussion and consideration to adopt new rule pursuant to Texas Government Code Chapter 661 (Sick Leave Pool).

8.1.8  Discussion and consideration to adopt new rule pursuant to Texas Government Code Chapter 441.006 (Private Donors).

8.1.9 Discussion and consideration to adopt new rule pursuant to Texas Government Code Chapter 2261.202 (Contract Monitoring).

8.1.10 Discussion and consideration to adopt the amendment of Rule 77.5 (Delegation of Authority).  The TBCE considered §77.5.Delegation of Authority, and passed the following language.

 

(a) The purpose of this section is to encourage the more effective use of the skills of licensees by establishing guidelines for the delegation of health chiropractic care tasks to a qualified and properly trained person acting under a licensee's supervision consistent with the health and welfare of a patient and with proper diligence and efficient practice of chiropractic. This section provides the standards for credentialing a chiropractic assistant in Texas.

(b) Except as provided in this section, a licensee shall not allow or direct a person who is not licensed by the board to perform procedures or tasks that are within the scope of chiropractic, including:

(1) rendering a diagnosis and prescribing a treatment plan; or

(2) performing a chiropractic adjustment or manipulation.

(c) A licensee may allow or direct a student enrolled in an accredited chiropractic college to perform chiropractic adjustments or manipulations if that student has qualified for admission to the outpatient clinic at the aforementioned college. The chiropractic adjustment or manipulation must be performed under the supervision of a licensee who need not be physically present in the treating room at the time of the adjustment or manipulation, but must be on-site at the time of the adjustment or manipulation.

(d) A licensee may allow or direct certain recent graduates of an accredited chiropractic college to perform chiropractic adjustments or manipulations. A "recent graduate" is one who graduated from a chiropractic college accredited by the Council on Chiropractic Education (CCE) within the previous twelve (12) months.

(1) The licensee shall notify the Board in writing within ten (10) days of the graduate's hire/employment date and provide the name of each recent graduate, the name of the chiropractic college and date of graduation, a copy of the graduate's diploma, and the name and license number of the licensee supervising the graduate.

(2) The supervising chiropractor shall notify the Board within ten (10) days of the graduate's status as contained within this section.

(e) In delegating the performance of a specific task or procedure, a licensee shall verify that a person is qualified and properly trained. "Qualified and properly trained" as used in this section means that the person has the requisite education, training, and skill to perform a specific task or procedure.

(1) Requisite education may be determined by a license, degree, coursework, on-the-job training, or relevant general knowledge.

(2) Requisite training may be determined by instruction in a specific task or procedure, relevant experience, or on-the-job training.

(3) Requisite skill may be determined by a person's talent, ability, and fitness to perform a specific task or procedure.

(4) A licensee may delegate a specific task or procedure to an unlicensed person if the specific task or procedure is within the scope of chiropractic and if the delegation complies with the other requirements of this section, the Chiropractic Act, and the board's rules.

(f) A licensee may allow or direct a qualified and properly trained person, who is acting under the licensee's supervision delegation, to perform a task or procedure that assists the doctor of chiropractic in making a diagnosis, prescribing a treatment plan or treating a patient if the performance of the task or procedure does not require the training of a doctor of chiropractic in order to protect the health or safety of a patient, such as:

(1) taking the patient's medical history;

(2) taking or recording vital signs;

(3) performing radiologic procedures;

(4) taking or recording range of motion measurements;

(5) performing other prescribed clinical tests and measurements;

(6) performing prescribed physical therapy modalities, therapeutic procedures, physical medicine and rehabilitation, or other treatments as described in the American Medical Association's Current Procedural Terminology Codebook, the Centers for Medicare and Medicaid Services' Health Care Common Procedure Coding System, or other national coding system;

(7) demonstrating prescribed exercises or stretches for a patient; or

(8) demonstrating proper uses of dispensed supports and devices.

(g) A licensee may not allow or direct a person:

(1) to perform activities that are outside the licensee's scope of practice;

(2) to perform activities that exceed the education, training, and skill of the person or for which a person is not otherwise qualified and properly trained; or

(3) to exercise independent clinical judgment unless the person holds a valid Texas license or certification that would allow or authorize the person to exercise independent clinical judgment.

(h) A licensee shall not allow or direct a person whose chiropractic license has been suspended or revoked, in Texas or any other jurisdiction, to practice chiropractic in connection with the treatment of a patient of the licensee during the effective period of the suspension or upon revocation.

(i) A licensee is responsible for and will participate in each patient's care. A licensee shall conform to the minimal acceptable standards of practice of chiropractic in assessing and evaluating each patient's status.

(j) It is the responsibility of each licensee to determine the number of qualified and properly trained persons that the licensee can safely supervise. A licensee must be on-call when any or all treatment is provided under the licensee's direction unless there is another licensee present on-site or designated as being on-call. On-call means that the licensee must be available for consultation within 15 minutes either in person or by other means of telecommunication.

(k) A licensee's patient records shall differentiate between services performed by a doctor of chiropractic and the services performed by a person under the licensee's supervision.

(l) No provision contained within this section authorizes a chiropractor to delegate tasks or care to a subordinate in abrogation of any established law, code or provision to the contrary.

 

8.1.11 Discussion and consideration to propose amendment to Rule 78.8, 79.2, and 79.10 to permit service by electronic-mail upon agreement by the licensee/facility owner/respondent.  A new law permits notification of decisions and orders by electronic means sent to the current e- mail address, upon agreement of the parties or by telecopier to respondent’s representative or the party, if not represented by counsel. Presently, Board rules 78.8, 79.2 and 79.10 only permit service by first-class, certified, or registered mail. TBCE will work to draft rules to permit this new provision.

8.1.12 Discussion and consideration to propose amendment to Rule 78.6(a) (Required Fees and Charges) and associated amendments to Rules 72.2, 73.3, and 74.2.  A new Legislative requirement to cease the collection of certain fees.  The TBCE will work to draft rules to implement this new provision.

8.1.13 Review proposals from Licensure and Education Committee concerning newly enacted legislation to modify Occupations Code Chapter 55. Discussion and consideration to propose new or amended rules pursuant to statutory provisions concerning Licensing of Military Service Member, Military Veterans, and Military Spouses.  Several news pieced of legislation call for changed in the procedures for the licensure of military and associated individuals.  The TBCE will work to draft rules to implement these new provisions.

8.1.14 Discussion and consideration to propose amendment to Rule 77.10 (Rules to Prevent Fraud).  The Enforcement Committee proposals concern:  1) Requiring facilities to annually certify that policies and procedures have been created with regard to a) Medicare, b) Billing, c) Records Management, and d) Continuity Operations/Wind-down practices.  2) Requiring employees to certify and record in employment records that they have read, reviewed and been trained on each procedure or policy as may be applicable to their job duties within sixty (60) days of employment and every two (2) years thereafter while in the employ of the facility.  3) Require the retaking of jurisprudence for enforcement matters that involve fraud.  4) Consider the utilization of practice/compliance reviews for facilities that fail to maintain adequate policies and procedures.  The TBCE will work to address these concerns.

8.1.15 Discussion and consideration to propose amendment to Rule 78.8 (Complaint Procedures) and associated rule 78.16.

8.1.16 Discussion and consideration to propose amendment to Rule 78.10(b) (Schedule of Sanctions). This rule change updates the TBCE's "Schedule of Sanctions."

8.1.17 Discussion and consideration to propose amendment to Rule 77.7 (Request for Information and Records from Licensees).  Parts of this rule are not in conformity with HB300, TBCE will work to rectify this discrepancy.

These three rules proposals deal with newly passed government regulations pertaining to TBCE employees:

8.1.18 Discussion and consideration to propose new rule to Chapter 80, concerning General Regulatory Provisions – Job Notices and Training, as required by House Bill 3337.

8.1.19 Discussion and consideration to propose amendment to Rule to Chapter 80.5, concerning General Regulatory Provisions – Contract Monitoring, as required by Senate Bill 20.

8.1.20 Discussion and consideration to propose add a new rule to Chapter 75, concerning Licenses and Renewals, as required by Occupations Code 112.051.

8.1.21 Discussion and consideration to propose add a new rule to Chapter 77, concerning obstruction of Board proceedings.  Certain individuals have sought to improperly influence the Board’s proceedings. This rule is sought by staff to ensure  fairness in Board processes.