Sunset Commission Issues TBCE Report – Issue 4
Written by Editor   
Sunday, October 09, 2016 12:01 PM

Issue 4 of the Sunset Commission’s Staff Report is that key elements of the board’s licensing and regulatory functions do not conform to common licensing standards.  Calling for standard fingerprint and background checks for ALL licensees, the state would do away with the requirement of "good moral character" and instead call for fingerprint and background checks for all licensees, even those in practice for decades without complaints.

The Sunset staff notes To help protect the public’s safety, licensing agencies commonly conduct background checks using the Department of Public Safety’s (DPS) fingerprint system, which accurately identifies the individual, provides automatic updates, and uncovers criminal history on applicants and licensees nationwide. The board began conducting fingerprint background checks on new license applicants in May 2004 in place of the less reliable, name-based background check system. However, the board never required existing licensed chiropractors to undergo a fingerprint background check. As a result, the board relies on these licensees to self-disclose any criminal history when renewing their license and cannot reliably track any past, present, or future criminal activity for 58 percent of its chiropractors. Directing the board to require licensees who were not  fingerprinted from initial licensure to get a fingerprint-based criminal background check would help the agency more effectively assess each licensee’s criminal history to better protect the public.”

The Sunset report notes that “currently, the board does not consistently consult national practitioner databanks, such as the Chiropractic Information Network-Board Action Database (CIN-BAD), to check for disciplinary actions before awarding an initial license or renewal. The board only consults CIN-BAD before awarding an initial license to applicants who have a chiropractic license in another state or have not been licensed within a year after graduating from chiropractic college.”

Noting another shortcoming in the Chiropractic Act, Sunset staff note that “the board also does not have clear legal authority to sanction a licensee based on actions taken by other states or other Texas licensing boards. By inconsistently using CIN-BAD and not asking about other occupational licenses, the board cannot guarantee all licensed chiropractors meet licensure qualifications and do not pose a risk to the public.”

The state would do away with a "good moral character" qualification and instead track the criminal history of its licensee – presuming that the majority of licensees may have a criminal history.  “Qualifications for licensure should not overburden applicants or unreasonably restrict entry into practice. … the phrase ‘good moral character' is a subjective, vague requirement that may be determined inconsistently. Removing the statutory requirement that applicants be of good moral character would be in line with current law that matches the agency’s practice of reviewing an applicant’s criminal history and denying licenses based on criminal history that is related to the practice of chiropractic.”

Sunset staff would also do away with requiring a potential licensee obtaining letters of reference from licensed practitioners.  “License application requirements should not restrict entry into the practice. … currently, the board requires first-time applicants to submit three letters of recommendation from other licensed chiropractors as part of their application. Allowing other chiropractors to have input on whether a new applicant can become licensed is unfair, giving other chiropractors, who could be swayed by competitive business motives, undue infuence over an applicant’s entry into the profession. Further, requiring letters of recommendation is uncommon.”

Further the state would make it less stressful in obtaining the required testing.  “Licensing agencies should require applicants to complete a jurisprudence exam to ensure their knowledge of the profession’s scope of practice and board rule and laws within the state. Many licensing agencies grant applicants unlimited attempts to take and pass the exam, as the point of a jurisprudence exam is not to limit entrance into the profession, but for practitioners to demonstrate a working understanding of law and rule. Currently, the board only allows first-time applicants to take the jurisprudence exam three times. … Limiting the number of times an applicant can take the jurisprudence exam is unnecessarily restrictive.”

Pointing out yet another shortcoming in the Chiropractic Act, the Sunset staff notes that “a regulatory agency should have a renewal process that helps ensure adequate oversight of regulated persons or activities.  The board’s statute requires chiropractors to renew their licenses annually, which adds to the administrative workload of the board’s small staff . To decrease agency burden, other health licensing agencies …  renew licenses every two years. Changing the chiropractic license renewal to every two years would ease administrative burdens and allow staff  to dedicate more time toward quicker processing of licenses.”

Rather than auditing 100% of its continuing education hours as TBCE is currently doing, the report notes that "most licensing agencies require licensees to complete continuing education hours as a condition for license renewal.  These agencies audit a sample of licensees’ continuing education courses to ensure licensees meet the continuing education requirements. Many of Texas’ health licensing agencies, … audit 10 percent or less of submitted continuing education hours … the chiropractic board currently reviews continuing education hour submissions for 100 percent of chiropractors seeking renewal. As an agency with limited resources, dedicating staff  time to such burdensome audits keeps the board from focusing on other operational areas with greater public risk.”

Yet another Chiropractic Act shortcoming is that “a licensing agency should have authority to set its own licensing and renewal fees. Setting a fee floor in statute limits the agency’s ability to lower fees in line with the agency’s actual cost to adequately regulate a program.  The board’s statute currently includes a floor, which requires the board to set fees at or above amounts established in 1993. While the board has appropriately chosen to keep fees low, currently $150 for a license renewal, the floor requires a minimum renewal fee of $325. Removing the statutory fee floor would improve the agency’s fee management authority to ensure a funding structure that funds needed operations while also being fair to licensees.”

The Sunset Commission staff recommend several changes in the Chiropractic Act.

Require the board to conduct fingerprint-based criminal background checks of all licensure applicants and licensees.  New licensees already undergo a fingerprint-based background check. This recommendation would require existing chiropractors who did not undergo a  fingerprint-based criminal background check upon initial licensure to undergo checks. Due to the large number of chiropractors who have not undergone ngerprint background checks, the recommendation would allow for a two-year, staggered implementation timeframe, which must be complete by September 1, 2019. To ensure compliance, this recommendation would authorize the board to administratively suspend a chiropractor’s license for failing to comply with the background check requirement. Obtaining up-to-date criminal history on all chiropractors would ensure the agency can effectively monitor all licensees for criminal conduct and take disciplinary action to protect the public when warranted.”

Remove unnecessary provisions requiring applicants to be of good moral character …. a standard that is unclear, subjective, and difficult to enforce. The board would continue to receive and review criminal history information to determine the applicant’s eligibility for licensure.”

“Authorize the board to check for disciplinary actions in other states or from other licensing boards for license applications and renewals, and to pursue any necessary enforcement action.  This recommendation would expand the board’s ability to identify problems and authorize it to take any necessary enforcement action based on actions taken by other states or other Texas licensing boards, so long as the conduct is also a violation of Texas law or board rule.”

“This recommendation would direct the board’s licensing staff to cross reference national practitioner databanks, … when processing initial license applications and renewals for all licensed chiropractors. … this recommendation would direct the board to require chiropractors to disclose upon application or renewal if they are licensed with other in-state occupational licensing boards, and whether that license is in good standing.”

“Remove the limitation on the number of times an applicant can take the board’s jurisprudence exam. The recommendation would also remove any established time constraints between exam attempts to eliminate unnecessarily restrictive licensure requirements.”

“Authorize the board to provide biennial license renewal.  The board would determine when to start and how to implement biennial renewals.  is recommendation would reduce time spent on processing renewals and alleviate burden on staff without compromising agency oversight of licensees.”

Remove the statutory limitation currently restricting the agency’s authority to lower fees. This recommendation would remove the fee floor currently listed in statute.”

“Direct the board to stop requiring letters of recommendation as part the initial application process.”

“Direct the board to limit its continuing education audit process. This recommendation would direct board staff to no longer audit 100 percent of continuing education submissions for all licensed chiropractors each year.”