TBCE Posts "Correction of Error"
Thursday, May 01, 2014 08:05 AM

The Texas Board of Chiropractic Examiners has posted in the May 9, 2014, Texas Register a "Correction of Error" message regarding its adoption of an amendment to the Maintenance of Chiropractic Records Rule posted in the April 18, 2014, Issue of the Texas Register. Excerpts from the TBCE's message include:

The Texas Board of Chiropractic Examiners (Board) adopted an amendment to 22 TAC §80.5, concerning Maintenance of Chiropractic Records, in the April 18, 2014, issue of the Texas Register (39 TexReg 3228). The amendment was adopted to outline minimum documentation requirements for doctors of chiropractic in Texas. The Board inadvertently omitted a comment that was received during the comment period. Following is a summary of the comment received and the Board's response to the comment.

One email comment was received that addressed multiple aspects of the rule during this period of time and urged that this proposal be defeated. First, the comment notes that the need for such a rule change has not been communicated publicly in a meeting of the full Board. Further, the licensee contended that there was no need to change the rule for enforcement purposes as the present rule is sufficient. The Board disagrees because the current rule led to confusion amongst the public as well as the licenses with regard to the period of time that a licensee is required to maintain records. Further, additional clarity was needed to standardize rules from one licensee to the next in an effort to protect the public's health and safety when transferring care between licensees. ... Finally, the Board received more feedback requesting additional clarity in favor of the rule change than against it.

Second, the commenter maintained an objection to referencing any documents referenced within the rule. The licensee noted that the American Chiropractic Association specifically states that the National Guidelines Clearinghouse is not to be used as guidelines. The Board notes that this is correct, however the American Chiropractic Association specifically recommends the National Guidelines Clearinghouse (NGC) as best practices. The Board further notes that not all of the criteria listed in the NGC were implemented into the rule. The formulation of the rule occurred during the Board's publicly held Rules Committee meetings that encouraged and received input from the Texas Chiropractic Association who endorsed and helped form the final recommendations of the committee.

Next, the commenter objected to the reference to Current Procedural Terminology (CPT) codes on the basis that the licensee had a "professional objection to TBCE referencing the publication of any trade association such as the AMA given their history of animosity toward chiropractic." The Board notes the objection but further recognizes that CPT codes are nothing more than a system by which to communicate the procedures performed in a chiropractor's office and not an endorsement of the AMA. Additionally, the Board believes that the utilization of the practically universally recognized CPT codes is more efficient than requiring a chiropractor to write each procedure particularly and further serves to provide protection to the public by eliminating a source of confusion as to the procedures performed on the patient.


The commenter again reiterated that the rule has been proposed and adopted without a proper showing of necessity because the rules request did not originate from either the Enforcement Committee or the Licensing and Education Committee or at the direction of the general counsel or chairs to those committees. The Board notes the objection, but there is no legislative requirement that all rules must have a genesis in either committee or that the general counsel verbally communicate acquiescence. Further, the Board would note that the past two Enforcement Committee chair persons are presently members of the Rules Committee. The Board properly took public comment and discussed the rule prior to adoption after a proper referral from the Rules Committee. Additionally, the Board engaged in discussion during the pendency of the proposed rule amendment concerning thousands of pages of uninterpretable and illegible records and documentation that failed to describe treatment, examination or explain the necessity of treatment as a compelling reason to justify the rule amendment. Moreover, the general counsel, as with all rules, has added his certification that the rule is a proper exercise of Board authority and is in compliance with existing statutory provisions.

The commenter further cites concerns regarding the stakeholder meetings process to obtain comments prior to the first draft of the amendment. In response, the Board understands the concerns but does not share them. The Board holds stakeholder meetings to gather the input of the stakeholder community and not that of the Board members - who have ample opportunity to present their views at publicly held meetings that comply with all requirements of open government. Additionally, because the stakeholder meetings were attended by two out of nine Board members, no quorum was present and no violation of the Open Meetings Act could have occurred.

Next, ... the commenter also indicates that prognosis is undefined and poses the rhetorical question of what the prognosis of a wellness patient is. The Board engaged in significant discussion concerning the above issues during the pendency of the rule amendment. The Board does not share the licensees concerns. First, the Board notes that wellness care is specifically excluded from insurance policies as non-reimbursable. This includes Medicare as instructed by the chiropractic services Medicare part B manual. The Board did not follow Medicare's manual verbatim in every manner; otherwise, wellness or maintenance care would have been banned with the passage of the amendment. The Rules Committee was knowledgeable of the importance of this type of care and went to great pains to protect this care for the benefit of the public, even though it is by law and contract the sole responsibility of the patient to pay for such care. ... Finally, the Board notes that discussion occurred concerning prognosis. The Board considers a prognosis to be a prognostication and considers it impracticable that a properly trained licensee with relevant experience would make definitive outcome statements based upon a prognosis.


Finally, the commenter states "[n]otwithstanding the amendments offered by your general counsel of 'including, but not limited to' in 80.5(g) and the entirety of the proposed 80.5(j), I do not believe the legal issues of this proposal have been adequately considered making it very unwise to pass the proposed rule change. I fear what skilled legal opponents could do with such a proposal with no necessity being communicated to support it." The Board does not share the licensee's concerns. This issue was addressed during an open meeting subsequent to the posting of the proposed rule amendment, but the Board was unable to identify and did not hear from any members of the public against the necessity of improving documentation standards for the purpose of ensuring sustained care. The Board asserts that the amendment was based upon the compelling need of protecting the people of Texas with the least intrusive means possible into the patient-doctor relationship.