TBCE Actions from Feb. 16, 2017 Meeting
Written by Editor   
Thursday, April 06, 2017 12:23 PM

News bite:  A regular meeting of the Texas Board of Chiropractic Examiners was held on February 16, 2017.  The Board voted to amend two rules effective June 1, 2017.  Rule 78.1 now more clearly distinguishes violations that constitute unprofessional conduct.  Rule 78.10(b) reorganizes the violations of the sanctions table into categories based on risk of harm to the public.  


A regular meeting of the Texas Board of Chiropractic Examiners (TBCE) was held February 16, 2017, in Austin. The Board voted to adopt amendments to the following rules – effective June 1, 2017: 

78.1 - The amendment more specifically distinguishes violations that constitute unprofessional conduct in chiropractic. 78.10(b) - The amendment reorganizes violations set out in the Table of Maximum Sanctions into categories based on risk of harm to public. The proposal reads:

§78.1. Unprofessional [Grossly Unprofessional] Conduct. Unprofessional [Grossly unprofessional] conduct when applied to a licensee or chiropractic, facility includes, but is not limited to the following: 
[(1) maintaining unsanitary or unsafe equipment;] 
[(2) failing to use the word “chiropractic", "chiropractor," "Doctor, D.C.," or "Doctor of Chiropractic, D.C." in all advertising medium, including signs and letterheads;] 
(1) [(3)] engaging in sexual misconduct with a patient within the chiropractic/patient relationship; Sexual misconduct as used in paragraph (1) of this section means: 
(A) sexual impropriety, which includes any behavior, gestures, statements, or expressions towards a patient which may reasonably be interpreted as inappropriately seductive, sexually suggestive or demeaning, such as; 
(i) inappropriate sexual comments about and to a patient or former patient including sexual comments about an individual’s body which demonstrate a lack of respect for the patient's privacy; 
(ii) requesting unnecessary details of sexual history or sexual likes and dislikes from a patient; 
(iii) making a request to date a patient; 
(iv) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee; 
(B) sexual intimacy, which includes engaging in any conduct that is intended to cause or reasonably interpreted to cause stimulation of a sexual nature, such as:
(i) sexual intercourse; (ii) genital contact; (iii) touching breasts;(iv) masturbation by the licensee;(v) any bodily exposure by licensee of normally covered body parts.
(C) It is a defense to a disciplinary action under paragraph (1) of this section if the patient was no longer emotionally dependent on the licensee when the sexual impropriety or intimacy began, and the licensee terminated his or her professional relationship with the person more than six months before the date the sexual impropriety or intimacy occurred.
(D) It is not a defense under paragraph (1) of this section if the sexual impropriety or intimacy with the patient occurred:
(i) with the consent of the patient;
(ii) 
outside professional treatment sessions; or
(iii) off the premises regularly used by the licensee for the professional treatment of patients.
(E) Licensees must respect a patients dignity at all times and should provide appropriate gowns and/or draping and private facilities for dressing and undressing. 
(2) Intentional and/or Fraudulent charging or billing for services including, but not limited to, the following: 
(A) exploiting patients through the fraudulent use of chiropractic services, which results, or is intended to result, in  nancial gain for a licensee or a third party. The rendering of chiropractic services becomes fraudulent when the services rendered or goods or appliances sold by a chiropractor to a patient are clearly excessive to the justi ed needs of the patient as determined by accepted standards of the chiropractic profession; 
(B) submitting a claim for chiropractic services, goods or appliances to a patient or a third-party payer which contains charges for services not actually rendered or goods or appliances not actually sold; 
(C) failing to disclose, upon request by a patient or patient’s duly authorized representative, the full amount charged for any service rendered or goods supplied 
(3) physically harming or threatening to physically harm a patient or another person while in practice or under the guise of chiro- practic licensure; 
(4) exposing a patient to unsanitary conditions in practice whether by use of unsanitary equipment or poor facility maintenance; 
(5) failure to supervise the activities of staff of a chiropractic facility which results in  financial or physical harm to a patient or exposure of confidential patient records; 
(6) failing to specify chiropractic,” "chiropractor," "D.C." or "Doctor of Chiropractic" in all advertising medium, including signs and letterheads; 
(7) using chiropractic “chiropractor," "D.C." or "Doctor of Chiropractic" in any advertising medium for services that are outside the scope of practice; 
(8) using “chiropractic," "chiropractor," "D.C." or "Doctor of Chiropractic" in advertising medium at any time while not holding a chiropractic license by the board; 

(9) failure to respond to a board inquiry, failure to comply with a board order or any other applicable law pursuant to the Chiropractic Act or board rules.

 
[(4) exploiting patients through the fraudulent use of chiropractic services which result or are intended to result in financial gain for a licensee or a third party. The rendering of chiropractic services becomes fraudulent when the services rendered or goods or appliances sold by a chiropractor to a patient are clearly excessive to the justified needs of the patient as determined by accepted standards of the chiropractic profession;] 
[(5) submitting a claim for chiropractic services, goods or appliances to a patient or a third-party payer which contains charges for services not actually rendered or goods or appliances not actually sold;] 
[(6) failing to disclose, upon request by a patient or his or her duly authorized representative, the full amount charged for any service rendered or goods supplied.]
[(b) Sexual misconduct as used in subsection (a)(3) of this section means]:
[(1) sexual impropriety, which may include:]
[(A) any behavior, gestures, statements, or expressions which may reasonably be interpreted as inappropriately seductive, sexually suggestive or sexually demeaning;] 
[(B) inappropriate sexual comments about and to a patient or former patient including sexual comments about an individuals body or sexual comments which demonstrate a lack of respect for the patients privacy;] 
[(C) requesting unnecessary details of sexual history or sexual likes and dislikes from a patient;] [(D) making a request to date a patient;] [(E) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee;] [(F) kissing or fondling of a sexual nature; or] [(G) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature; or] 
[(2) sexual intimacy, which may include engaging in any conduct by a person or between persons that is intended to cause, is likely to cause, or may be reasonably interpreted to cause to either per- son stimulation of a sexual nature, such as:]
[(A) sexual intercourse;] [(B) genital contact;] [(C) oral to genital contact;] [(D) genital to anal contact;] [(E) oral to anal contact;] [(F) oral to oral contact;] [(G) touching breasts;] [(H) touching genitals;][(I) encouraging another to masturbate in the presence of the licensee;] [(J) masturbation by the licensee when another is present; or] [(K) any bodily exposure of normally covered body parts.]
[(c) It is a defense to a disciplinary action under subsection (a)(3) of this section if the patient was no longer emotionally dependent on the licensee when the sexual impropriety or intimacy began, and the licensee terminated his or her professional relationship with the person more than six months before the date the sexual impropriety or intimacy occurred.]
[(d) It is not a defense under subsection (a)(3) of this section if the sexual impropriety or intimacy with the patient occurred:]
[(1) with the consent of the patient;]
[(2) outside professional treatment sessions; or]
[(3) off the premises regularly used by the licensee for the professional treatment of patients.]

[(e) Licensees must respect a patients dignity at all times and should provide appropriate gowns and/or draping and private facilities for dressing and undressing.]

An amendment to rule 78.10(b) reorganizes violations set out in the Table of Maximum Sanctions into categories based on risk of harm to public.  Category I violations include:  sexual misconduct; lack of diligence or gross inefficient practice; practicing outside of scope; unauthorized practice of acupuncture; proved insane; impaired licensee; practicing while intoxicated; knowingly allowing an unlicensed person to practice; impersonating a licensed chiropractor; improper control of patient care and treatment; prescribing or administering nontherapeutic treatment; knowingly delegating chiropractic responsibility to unqualified persons; procuring or assisting in abortion; habit of intemperance, drug addiction, or other habit endangering life of the patient; furnishing or prescribing controlled substances; harming or threatening physical harm to a patient; criminal conviction of a sexual or violent nature.  These may carry a $1000 per day fine, and/or suspension or revocation.

Category II violations include: overtreating or overcharging; violation of Health and Safety Code 311.0025 (billing); using fraudulent obtained documents; presenting untrue facts to pass an examination; associating or employing an unlicensed person; fraudulently using credential for gain relating to application to practice; fraudulently changing documents; using fraud to pass an examination; practicing without a chiropractic license; impersonating a licensed chiropractor; permitting another to use a license to practice; false documents for application; employing person whose license is not in effect; aiding or abetting the practice of chiropractic by an unlicensed person; delegating to a non-licensee the authority to perform chiropractic adjustment/manipulation; failure to comply with an order or rule; fraud; solicitation or barratry; failure to respond to board inquiries; failure to report a criminal conviction; bribery; coercion; improper influence; tamper with witness; destruction/retaliation; criminal conviction of a non-sexual or non-violent nature.  These may carry up to $750 fine per day and/or suspension or revocation.

Category III violations include: practicing with an expired license; practicing while on inactive status; practicing in non compliance with CE requirements; association with a person whose license has been suspended, canceled, revoked, or convicted of the unlawful practice of chiropractic in any state; failure to supervise a chiropractic student or recent graduate; failure to maintain sanitary conditions in practice; failure to comply with rules on prepaid treatment plans; practicing at a facility without a current facility registration; operating a facility without a current facility registration; unauthorized disclosure of patient records; violation of patient confidentiality; misleading or fraudulent advertising; using the term physician or chiropractic physician; failing to use DC or chiropractor in advertising; advertising DC or chiropractor without holding a license; using DC or chiropractor when advertising services outside the scope of chiropractic.  These may carry up to $500 fine per day and/or suspension. 

Category IV violations include: failure to furnish patient records; overcharging for copies; failure to disclose charges to a patient; failure to maintain patient records; failure to report out-of-facility practice; failure to display public interest placard, facility registration, or license renewal card; failing to clearly differentiate chiropractic office from another business; failure to complete CE requirements; failure to comply with spinal screening rules; failure to report change of address; failure to report facility address change or change of ownership; failure to report locum tenens information; default on student loan; performing radiological procedures without current DSHS registrations; “MRTCA DSHS rules or order”; performing radiological procedures without supervision, or use of other restricted procedure.  These may carry up to $250 fine per day.

Check http://www.sos.state.tx.us/texreg/pdf/backview/0113/0113tab.pdf for more accurate details.

The Board considered and denied a rule petition that requested repeal of Rule 78.14 Acupuncture, after and pursuant to review and recommendation by the Board’s Rule Committee, on January 6, 2017.


Source:  http://www.tbce.state.tx.us/NewsLetter/2017/NLMarch2017.pdf