TBCE Proposes Rules Changes for 2018
Written by Editor   
Sunday, January 14, 2018 05:21 PM

The Texas Board of Chiropractic Examiners have proposed a number of rules changes that the profession should be aware of.  This article lists the recently published proposals.

§72.8. Failure to Appear at Jurisprudence Examination.

The Texas Board of Chiropractic Examiners (TBCE) proposes the repeal of Chapter 72, §72.8, concerning failure to appear at jurisprudence examination.

The proposed repeal is made to reflect the Board’s use of an online testing system, which no longer requires an examinee to appear in person. The purpose of the rule repeal is to eliminate any requirement for an examinee to appear for the jurisprudence exam at a physical examination location.

The expected public benefit will be to eliminate confusion regarding taking the Board’s Jurisprudence exam, which is only administered online. 

§77.2. Publicity.

The TBCE proposes amending Chapter 77, §77.2, concerning “Publicity.” The proposed amended rule is necessary to reflect implementation of 2017 Sunset Commission legislation, SB 304, which dissolved the Board’s statutory requirement to regulate and/or register chiropractic facilities, effective September 1, 2017.

The purpose of the proposed amendments is to remove the reference of regulation of facilities and facility owners stated in the rule.

§77.2. Publicity.   

[red brackets indicate deletions]. green underscore indicates new additions

(a) A [registered facility or] licensee shall not, on behalf of himself, his partner, associate, or any other licensee [or facility] affiliated with him, use or participate in the use of any form of public communication which contains a false, fraudulent, misleading, deceptive, or unfair statement of claim, or which has the tendency or capacity to mislead or deceive the general public, as defined in §77.4 of this title (relating to Misleading Claims).

(b) In any form of public communication, a licensee [or facility] shall not describe services that are inconsistent with the practice of chiropractic as described under §78.13 of this title (relating to Scope of Practice).

(c) A licensee [or facility] engaging in, or authorizing another to engage in, telemarketing of prospective patients shall not misrepresent to the person called any association with an insurance company or another doctor of chiropractic or another chiropractic group [or facility].

(1) A licensee [, facility,] or an [their ] agent[,] engaging in telemarketing shall not promise successful chiropractic treatment of injuries or make any other communication which would be prohibited under subsection (a) of this section.

(2) A licensee [, facility,] or an [their] agent[,] engaging in telemarketing is [are] required, at the start of each call, to inform the person called who they are (caller’s name) and who they represent (clinic/doctor).

(3) A licensee [or facility] engaging in telemarketing, either directly or through an agent, shall keep a copy of each script used for calling and a log of all calls made that shall include the date, telephone number, and the name of each person called. Such scripts and logs shall be maintained for a minimum of two years.

(d) Licensees who  [or facilities that] intend to include a testimonial as part of any form of public communication shall maintain a signed statement from that person or group to support any statements that may be used in any public communication for a minimum of two years from publication of the testimonial.

(e) Licensees [or facilities] shall clearly differentiate a chiropractic office, clinic, or facility from another business or enterprise in any form of public communication.

(f) Licensees [or facilities] shall be identified as either "doctor of chiropractic," "DC," "chiropractor" or "chiropractic" in all forms of public communication in accordance with §201.002 of the Texas Occupations Code. [If each licensee that practices in a facility has identified themselves as required in this subsection, then the facility name need not include "chiropractic" or similar language.]

(g) In any form of public communication using the phrase "Board Certified" or similar terminology associated with any credentials, a licensee must identify the board certifying said credentials.

(h) In any form of public communication, if a licensee [or facility] makes a claim based on one or more research studies, the licensee or facility shall clearly identify the relevant research study or studies and make copies of such research studies available to the board or the public upon request.

(i) In any form of public communication, a licensee [or facility] shall not advertise any service as "free" unless the public communication clearly and specifically states:

(1) all the component services which will or might be performed at the time of, or as part of, the service;

(2) as to each such component service, whether that service will be free or, if not, the exact amount which will be charged for it; and

(3) if a component service is an evaluation, whether the report of findings will be free or, if not, the exact amount which will be charged for the report of findings.

(j) This section and §77.4 of this title apply to all advertising, communications, or telemarketing done by or on behalf of a licensee [or facility], including activities conducted by employees, students being mentored by the licensee, or other agents.


§77.3. Patient's Rights to Disclosure of Charges.

The TBCE proposes amendments to §77.3, concerning “patient’s rights to disclosure of charges.” The proposed amended reflects requested changes by the Texas Chiropractic Association (TCA).

The purpose of the amendment is to ensure clarity regarding a patient’s right to obtain a receipt for services on the date the services are rendered. The expected public benefit will be clarity regarding a patient’s right to a receipt of charges for chiropractic care at the time of service.

§77.3. Patient's Rights to Disclosure of Charges.

(a) A licensee shall, at a patient’s request on the date of providing goods or services to a patient, make available [disclose] to the patient a receipt or summary of [in writing] the full amount of the licensee’s charges for that day.

(b) Compliance with this rule may be in any written, printed or digital form reasonably calculated to notify the patient of the actual charges for the goods or services provided.


§77.6.Default on Student Loans and Scholarship Agreements.

The TBCE proposes amending Chapter 77, §77.6, concerning “default on student loans and scholarship agreements.” 

The proposed amended rule is necessary to reflect implementation of 2017 Sunset Commission legislation, SB304, which dissolved the Board’s statutory requirement to register and/or regulate chiropractic facilities, effective September 1, 2017. The purpose of the proposed amendments is to remove reference to regulation of facilities and facility owners stated in the rule.

§77.6.Default on Student Loans and Scholarship Agreements.

(a) Besides non-renewal of a license under §75.2 of this title (relating to Renewal of Chiropractic License) [or §73.3 of this title (relating to Annual Renewal of Facility Registration) of this title], a licensee who has defaulted on a student loan or breached a student loan repayment contract, a scholarship contract by failing to perform his or her service obligation under the contract, or any other agreement between the licensee and the administering entity, relating to payment of a student loan or performance of obligations under a scholarship, may be subject to disciplinary action by the board as authorized by Chapter 56 of the Occupations Code. This section applies to chiropractic licensees [and facility licenseeswho operate a sole proprietor or partnership.

(b) The board may rescind any disciplinary action taken under this section upon receipt of information from an administering entity that the licensee is now in good standing, as provided in §72.3(b) of this title (relating to Qualification of Applicants).

(c) Upon notice that a licensee is again in default or breach of any loan or agreement relating to a student loan or scholarship, the board may reinstate the original disciplinary action, if rescinded, or take other disciplinary action.

(d) The maximum sanction for a violation of this section is revocation and/or $1000 administrative penalty per violation. This sanction is incorporated into the board’s maximum sanction table provided in §78.10(b) of this title (relating to Schedule of Sanctions) by this reference.


§77.7. Request for Information and Records from Covered Entities.

The TBCE proposes amending Chapter 77, §77.7, concerning “request for information and records from covered entities.” The proposed amended rule is necessary to reflect implementation of 2017 Sunset Commission legislation, SB 304, which dissolved the Board’s statutory requirement to register and/or regulate chiropractic facilities, effective September 1, 2017. The purpose of the amendments is to remove reference to the regulation of facilities and facility owners stated in the rule.

§77.7. Request for Information and Records from Covered Entities.

(a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Covered entity—Any person as identified within Health and Safety Code, Title 2. Health, Subchapter I. Medical Records, Chapter 181 Medical Records Privacy, Section 181.001. For the purposes of this rule, covered entities include only chiropractors [or chiropractic facility owners] regulated by Texas Occupations Code, Chapter 201.

(2) Chiropractic record—Any record regularly utilized, created, or stored by a covered entity in the ordinary course and scope of business pertaining to the history, diagnosis, treatment or prognosis of the patient, including records of other health care practitioners contained in the records of the covered entity.

(3) Patient—Any person who consults or is seen by a covered entity for the purposes of receiving chiropractic care.

(b) Request for chiropractic records. Upon request, a covered entity shall furnish copies of chiropractic records, a summary, or narrative of the records pursuant to a written consent for disclosure. A request may be in oral form if it is documented in writing by the covered entity. The requested information or record shall not be released if the covered entity determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. If the covered entity determines that access to the information would be harmful, the covered entity will document in writing the reasons why the disclosure would be harmful. The covered entity may delete from the requested records confidential information about another person who has not authorized disclosure.

(c) Written consent.

(1) The written consent required by subsection (b) of this section shall be signed by:

(A) the patient;
(B) the patient’s [patients'] personal representative if the patient is deceased;
(C) a parent or legal guardian if the patient is a minor;
(D) a legal guardian if the patient has been adjudicated incompetent to manage his or her personal affairs; or

(E) an attorney ad litem for the patient as authorized by law, including the Health and Safety Code, Title 7, Family Code, Chapter 11 or the Probate Code, Chapter 5.

(2) The written consent shall contain the specific information or chiropractic records to be disclosed under the consent; the reasons or purposes for the disclosure; and the person to whom the information is to be disclosed.

(3) The patient, or other person authorized to consent, has the right to withdraw the consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal. Any person who received information made confidential by the Chiropractic Act may disclose the information to others only to the extent consistent with the authorized purposes for which consent to disclose information was obtained.

(d) Oral consent.

(1) The oral consent permitted by subsection (b) of this section shall be documented by the covered entity by:

(A) identifying the patient by presentation of valid government identification; or

(B) the presentation of legal documents sufficient to identify a person as the patient’s legal representative or guardian; and

(C) written documentation of the oral consent kept by the covered entity must include annotations recording the time, date, and identification of the patient, the patient’s personal representative if the patient is deceased, a parent or legal guardian if the patient is a minor, a legal guardian if the patient has been adjudicated incompetent to manage his or her personal affairs; or an attorney ad litem for the patient as authorized by law, including the Health and Safety Code, Title 7, Family Code, Chapter 11 or the Probate Code, Chapter 5.

(2) The written documentation of the oral consent shall contain the specific information or chiropractic records to be disclosed under the oral consent; the reasons or purposes for the disclosure; and the person to whom the information is to be disclosed.

(3) The patient, or other person authorized to consent, has the right to withdraw the consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the oral notice of the withdrawal. Any person who received information made confidential by the Chiropractic Act may disclose the information to others only to the extent consistent with the authorized purposes for which consent to disclose information was obtained.

(e) Reasonable time. A copy of chiropractic records or a summary or narrative of the records requested under subsection (b) of this section shall be furnished by the covered entity within a reasonable time, not to exceed 15 business days from the date of the request.

(f) Denial of request. If the covered entity denies the request under subsection (b) of this section for a copy of chiropractic records or a summary or narrative of the records, either in whole or in part, the covered entity shall furnish the patient a written statement, signed and dated, stating the reason for the denial. Chiropractic records requested pursuant to subsection (b) of this section may not be withheld based upon:

(1) a past due account for care or treatment previously rendered to the patient;
(2) on the lack of a letter of protection; or

(3) any other document having a similar effect.

(g) Fee for records. The covered entity may charge a reasonable fee for furnishing the information requested under subsection (a) of this section, in accordance with the following provisions:

(1) The fee shall be paid by the patient or someone else on the patient’s behalf.

(2) A covered entity may require payment in advance except from another covered entity or other health care provider, including a chiropractor licensed by any other state, territory, or insular possession of the United States or any state or province of Canada, if requested for purposes of emergency or acute medical care.

(3) In the event payment is not received, within ten calendar days from notification of the charge, the covered entity shall notify the requesting party in writing of the need for payment.

(4) A reasonable fee for a paper copy shall be a chargenot to exceed:
(A) $30 for retrieval of records and processing the request, including copies for the first 10 pages;
(B) $1.00 per page for pages 11-60;
(C) $.50 per page for pages 61-400; and

(D) $.25 per page for pages over 400.

(5) A reasonable fee for copies of films or other static diagnostic imaging studies shall be a charge not to exceed $45 for retrieval and processing, including copies for the first 10 pages, and $1.00 for each additional page over 10.

(6) Reasonable fees may also include actual costs for mailing, shipping, and delivery fees incurred by the covered entity.

(7) A reasonable fee for completing and signing an affidavit or questionnaire certifying that the information provided is a true and current copy of the records may not exceed $15.

(8) In addition to the fee contemplated in paragraph (7) of this subsection, reasonable fees may also include the actual costs paid by the covered entity to a notary for notarizing an affidavit, questionnaire, or other document.

(9) Notwithstanding subsection (g) of this section, a covered entity may not charge for records where prohibited as noted in Health and Safety Code, Title 2. Health, Subchapter H. Public Health Provisions, Chapter 161 Medical or Mental Health Records or any other applicable state and federal law.

(h) Subpoena not required. A subpoena shall not be required for the release of chiropractic records requested pursuant to subsection (b) of this section.

(i) Nothing within this section should be construed to supersede Health and Safety Code, Title 2, Health, Subchapter I,Medical Records, Chapter 181 Medical Records Privacy or any other applicable state and federal law.


§77.8. Records and Documentation.

The TBCE proposes amending Chapter 77, §77.8, concerning “records and documentation.” 

The proposed amended rule is to reflect changes requested by the Texas Chiropractic Association (“TCA”).   The purpose of the amendment is to provide clarity regarding the notes that are to be required in patient treatment records, depending on whether the written analysis is made for initial or subsequent visits.

§77.8. Records and Documentation.

(a) An adequate chiropractic record, as described in this section, for each patient shall be maintained for a minimum of six years from the date of last treatment.

(b) If a patient was younger than 18 years of age when last treated by a licensee, the chiropractic records of the patient shall be maintained until the patient reaches age 21 or for six years from the date of last treatment, whichever is longer.

(c) Chiropractic records that relate to any civil, criminal or administrative proceeding shall not be destroyed until the proceeding has been finally resolved.

(d) Chiropractic records shall be maintained for such longer length of time than that imposed by this section when mandated by other federal or state statute or regulation.

(e) Each licensee practicing at a facility [and each facility] is equally responsible for compliance with this section.

(f) Licensees shall maintain patient and billing records in a manner consistent with the protection and welfare of the patient. A licensee’s patient records shall support all diagnoses, treatments, and billing. Records shall be timely, dated, accurate, legible, and signed or initialed by the licensee or the person providing treatment. Electronic signatures are acceptable.

(g) Licensees are required, as directed in subsections (h) and (i) of this section, to perform an appropriate history and exam based on the nature of the presenting problem described by the patient and in accordance with accepted documentation guidelines. Accepted guidelines include, but are not limited to, the latest edition of the American Chiropractic Association Clinical Documentation Manual, American Medical Association CPT Code Book, 1997 DG and/or Chiropractic Service Manual Guidelines set forth by CMS.

(h) Other than consultations, reports of findings, and/or non-therapeutic interaction(s), all [All] patient records for an initial visit shall include:

(1) Patient History;
(2) Description of symptomatology or wellness care;
(3) Examination findings, including imaging and laboratoryrecords when clinically indicated;
(4) Diagnosis;
(5) Prognosis;
(6) Assessment(s);
(7) Treatment Plan;
(8) Treatment provided or recommended; and

(9) Periodic reassessment(s) when appropriate, with a minimum of once per calendar year.

(i) Other than a continuation of previously prescribed treatment plans, consultations, reports of findings, and/or non-therapeutic interaction(s), patient records for all subsequent visits shall include: [Each patient visit after the initial visit is considered a subsequentvisit unless there is a new illness or injury. The following information must be reported in each patient's file on each subsequent visit:]

(1) Updated History:
(A) Review of the chief complaint(s);

(B) Changes, if any, since the last visit;

(2) Physical Exam:
(A) Examination of the area involved in the diagnosis;

(B) Assessment of any change in the patient's conditionsince last visit;

(3) Treatment:
(A) Documentation of treatment given;
(B) Documentation of patient's response to the treatment rendered on that visit;
(C) Change in treatment plan or planned referrals if indicated.

 

(j) All licensed chiropractors shall observe and comply with all documentation laws pertaining to health care providers under state and federal law. Nothing within this section should be construed to constrain or limit the obligation of chiropractors to meet duly authorized law, rules and regulations. 


§78.6. Required Fees and Charges.

The TBCE proposes amending Chapter 78, §78.6, concerning “required fees and charges.” 

The proposed amended rule is necessary to reflect 2017 Sunset Commission legislation, SB 304, which dissolved the Board’s requirement to register chiropractic facilities, effective September 1, 2017. The legislation also authorized the board to extend the annual license period to a two-year term.

The proposed amendment adjusts the fee schedule to reflect the elimination of facility registration fees and the license renewal fees to reflect a two-year cycle.

§78.6.Required Fees and Charges.

(a) Current fees required by the board are as follows:

Figure: 22 TAC §78.6(a) (.pdf) (click for hyperlink)

[Figure: 22 TAC §78.6(a)]

(b) Application of Monetary Funds to Outstanding Balances. When a person pays monetary funds to the Board to renew a license [or facility registration], the monetary funds paid shall first be applied to any outstanding unpaid fees, assessed costs owed by that person from a final Board order, as authorized under §79.10 of this title (relating to Decision of the Board), or administrative penalties owed from a final Board order, as authorized under §78.10of this title (relating to Schedule of Sanctions).

(c) Any remittance submitted to the board in payment of a required fee for application, initial license, [registration,] or renewal, must be in the form of a cashier’s or certified check for guaranteed funds or money order, made out to the “Texas Board of Chiropractic Examiners.” Checks from foreign financial institutions are not acceptable.

(d) Fees for license verification or certification, license replacement, and continuing education applications may submit the required fee in the form of a personal or company check, cashier’s or certified check for guaranteed funds or money order, made out to the “Texas Board of Chiropractic Examiners.” Checks from foreign financial institutions are not acceptable. Persons who have submitted a check which has been returned, and who have not made good on that check and paid the returned check fee provided in subsection (a) of this section, within 10 days from notice from the board of the returned check, for whatever reason, shall submit all future fees in the form of a cashier’s or certified check or money order.

(e) Copies of public information, not excepted from disclosure by the Texas Open Records Act, Chapter 552, Government Code, including the information listed in paragraphs (1) - (6) of this subsection may be obtained upon written request to the board, at the rates established by the Office of the Attorney General for copies of public information, 1 TAC Part 3, Chapter 70, §§70.1- 70.10 (relating to Cost of Copies of Public Information).

(1) List of New Licensees

(2) Lists of Licensees

(3) Licensee Labels

(4) Demographic Profile

[(5) Facilities List]

[(6) Facilities Labels]


§78.12. Peer Review Committee.

The TBCE proposes the repeal of Chapter 78, §78.12, concerning “peer review committee.” 

The proposed repeal is necessary to reflect 2017 Sunset Commission legislation, SB 304, which repealed Subchapter F of the Chiropractic Act regarding establishment of a Peer Review Committee, and instead, authorized the Board to establish an Expert Review Process by rule. 

Accordingly, this rule is proposed for repeal and will be replaced with the Expert Review Process rule which follows.

The TBCE proposes the new rule Chapter 78, §78.12, Peer Review Committee to comply with 2017 Sunset Commission legislation, SB 304, which authorized the Board to establish an Expert Review Process by rule. Accordingly, this new rule is proposed to replace the Peer Review Committee rule.

§78.12. Expert Review Process.

(a) Complaints Reviewed. The Board may require expert review or investigation of the chiropractic care provided by a licensee involving:

(1) standard of care violation; or
(2) other violation(s) as determined by the Board.

(b) Qualifications. To qualify of as an expert to review a complaint set out in this section, a licensee shall, at the time of assignment:

(1) maintain an active license;
(2) have no prior violations of Board Rules or pending complaints;
(3) have no prior convictions of a felony or a misdemeanor involving a criminal act;
(4) demonstrate training or experience to offer an expert opinion regarding accepted standards of care;
(5) Demonstrate knowledge of accepted standards of care for the diagnosis, care and treatment related to the alleged violation; and
(6) Have an acceptable malpractice complaint history.

(c) Conflicts of Interest. An expert cannot accept a complaint for review, or must be recused, if the expert has:

(1) a direct financial interest or relationship with any matter, party, or witness exists that would give the appearance of a conflict of interest;
(2) a familial relationship within the third degree of affinity with any party or witness; or
(3) knowledge of information about the licensee or related complaint that the expert cannot set aside to fairly and impartially consider the matter based solely on the information provided by the Board.

(d) List of Experts. The Board shall maintain a list of experts that meet the qualifications set forth in subsection (b) of this section. The Board will periodically audit the list to confirm the continued qualification of the experts listed.

(e) Assignment. In assigning experts to review complaints, an expert shall be selected:

(1) when an investigator identifies a standard of care or related issue in the complaint;
(2) on a random selection basis from the list, pending on availability of the expert; and
(3) based on the expert’s qualifications to review the type of injury or care involved.

(f) Removal. On order of the Executive Director, an expert reviewer may be removed from an investigation and from the list set forth in subsection (d), for the following grounds:

(1) failure to maintain the required qualifications set forth in subsection (b);
(2) repeated failure to timely complete reports in the prescribed format;
(3) failure to inform the board of potential or apparent conflicts of interest; or
(4) failure to maintain confidentiality of the matter under review.

(g) Documents. The Board shall provide to the expert assigned to review a complaint the following documents to perform an expert review:

(1) the Complaint;
(2) the investigator’s report and supporting exhibits;
(3) an expert report form to be completed by the expert; and 
(4) a contract for services.

(h) The expert shall review all relevant information and records collected by the agency and determine whether the Respondent has violated the standard of care applicable and issue a written report of that determination. The expert reviewer shall communicate with the board promptly, within at least seven (7) business days, if additional documentation is required to complete the review.

(i) Expert Report. A report prepared by the Expert shall include the following:

(1) The general qualifications of the Expert;
(2) relevant facts concerning the medical care rendered;
(3) applicable standard of care;
(4) application of the standard of care to the relevant facts;
(5) a determination of whether the standard of care has been violated; and
(6) the clinical basis for the determinations, including any reliance on peer-reviewed journals, studies, or reports;

(j) Time to Complete. The expert assigned to review a complaint shall complete the review within thirty (30) days, unless circumstances or complexities of the matter under review prevent completion within this time frame. The expert reviewer shall communicate promptly in writing to the Board any reason for the delay and the alternative expected date of completion.

(k) Respondent rebuttal. The Board shall provide the Expert findings to the Respondent to allow for a response. Any reply or rebuttal offered by Respondent shall be made in writing and provided to the Board within thirty (30) days of the date the report is provided to Respondent.

(l) Review by Enforcement Committee. The Enforcement Committee shall review the Expert Report and any response by Respondent to determine if a violation occurred. The matter may be referred for review by another expert, if necessary, upon determination by the Enforcement Committee.


Source: http://www.sos.state.tx.us/texreg/archive/January122018/Proposed%20Rules/22.EXAMINING%20BOARDS.html#17