Rule 75.3 – Repeal – Individuals With Criminal Convictions
Wednesday, September 17, 2014 09:58 AM

The following section would be repealed.  Different language to "replace it" has been proposed elsewhere.

(a) This section establishes guidelines and criteria on the eligibility of persons with criminal backgrounds, including each person who owns a 10% or more interest in a chiropractic facility, to obtain licenses or registrations as chiropractors, chiropractic radiologic technologists (CRTs) or chiropractic facilities.

(b) The board may suspend or revoke a current license or registration, disqualify a person from receiving a license or registration, or deny to a person the opportunity to be examined for a license because of a person's conviction of a felony or misdemeanor that directly relates to the duties and responsibilities of a licensed chiropractor, registered CRT, or registered facility. This subsection applies to persons who are not imprisoned at the time the board considers the conviction.

(c) The board shall revoke a license or registration on the license or registration holder's imprisonment following a felony conviction or revocation of felony community supervision, parole, or mandatory supervision. A person in prison is not eligible for a license or registration.

(d) In considering whether a criminal conviction directly relates to the occupation of chiropractic, chiropractic radiology, or facility operation, the board shall consider:

  (1) the nature and seriousness of the crime; 

  (2) the relationship of the crime to the purposes for requiring a license or registration to engage in chiropractic, chiropractic radiology, or facility operation;

  (3) the extent to which a license or registration might afford an opportunity to repeat the criminal activity in which the person had been involved; and

  (4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of a licensed chiropractor, registered CRT, or licensed facility. 

(e) In reaching a decision required by this section, the board shall also determine the person's fitness to perform the duties and discharge the responsibilities of a licensed chiropractor, registered CRT, or registered facility. In making this determination, the board shall consider the following factors listed in paragraphs (1)-(6) of this subsection: 

  (1) the extent and nature of the person's past criminal activity;

 

  (2) the age of the person at the time of the commission of the crime;

 

  (3) the amount of time that has elapsed since the person's last criminal activity;

 

  (4) the conduct and work activity of the person prior to and following the criminal activity;

 

  (5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or following release; and

 

  (6) other evidence of the person's present fitness, including letters of recommendation from:

 

    (A) prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;

 

    (B) the sheriff and chief of police in the community where the person resides; and

 

    (C) any other persons in contact with the convicted person.

 

(f) An applicant for a license or registration from the board including an owner with a 10% or more interest in a chiropractic facility shall disclose in writing to the board any conviction against him or her at the time of application. A current licensee or registrant, including an owner with a 10% or more interest in a chiropractic facility shall disclose in writing to the board any conviction against him or her at the time of renewal or no later than 30 days after judgment in the trial court, whichever date is earlier.

(g) Upon notification of a conviction, the board shall provide a copy of this section to the person and request that the person respond to the board as to why the board should not deny the application or take disciplinary action against the person, if already licensed or registered. 

(h) A person with a conviction shall provide the response in writing to the board within 15 days after receipt of the notice of a conviction and may submit any information that he or she believes is relevant to the determinations required by this section. If the person fails to respond, the matter will be referred to the Enforcement Committee or the Licensure/Educational Standards Committee as provided in subsection (i) of this section. The person shall also:

  (1) to the extent possible, secure and provide to the board the recommendations of the prosecution, law enforcement, and correctional authorities specified in subsection (e)(6) of this section; 

  (2) cooperate with the board by providing the information required by subsection (e) of this section, including proof, in the form indicated in subparagraphs (A)-(D) of this paragraph, that he or she has:

    (A) maintained a record of steady employment, as evidenced by salary stubs, income tax records or other employment records for the time since the conviction and/or release from imprisonment; 

    (B) supported his or her dependents, as evidenced by salary stubs, income tax records or other employment records for the time since the conviction and/or release from imprisonment, and a letter from the spouse or other parent;

    (C) maintained a record of good conduct as evidenced by letters of recommendation, absence of other criminal activity or documentation of community service since conviction; and

    (D) paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted, as evidenced by certified copies of a court release or other documentation from the court system that all monies have been paid.

(i) Determinations under this section will be considered enforcement matters and made in accordance with this chapter, except that the executive director will review the application for licensure or registration of a person with a criminal conviction and refer it to the Licensure/Educational Standards Committee (LESC), upon receipt of all information required by this section. The LESC shall determine whether the applicant may sit for examination or be granted a certificate of registration or license. Upon a recommendation to deny an application by the LESC, the matter will be referred to the Executive Director for informal settlement or, if necessary, a hearing as provided by §75.9(d) of this title (relating to Complaint and Disciplinary Procedures).

(j) The board shall notify the affected person in its order that denies, suspends, or revokes a license or registration under this section, or otherwise in writing, after hearing, of:

  (1) the reason for the suspension, revocation, denial, or disqualification; 

  (2) the review procedure provided by Occupations Code, §53.052; and

  (3) the earliest date the person may appeal the action of the licensing authority.

(k) The Chiropractic Act, Occupations Code §201.302, requires that an applicant for licensure be of good moral character. Section 201.502 further authorizes the board to revoke or impose other sanctions for violations of certain specified conduct, including deception and fraud in the practice of chiropractic, conviction of a felony or a misdemeanor of moral turpitude, grossly unprofessional conduct, habitual conduct that is harmful to patients, and lack of diligence in the chiropractic profession. Chiropractors and the healthcare profession generally are held to high standards of professional conduct. To protect the public and patients, the board has a duty to ensure that licensees and registrants are persons who possess integrity, honesty and a high standard of conduct as well as the skill, education, and training to perform their duties and responsibilities. The crimes listed in paragraphs (1)-(6) of this subsection relate to the license and registrations issued by the board. These crimes generally indicate an inability or a tendency for the person to be unable to perform or to be unfit for licensure or registration because violation of such crimes indicates a lack of integrity and respect for one's fellow human being and the community at large. The direct relationship to a board issued license or registration is obvious when the crime occurs in connection with the practice of chiropractic.

  (1) practicing chiropractic without a license and other violations of the Chiropractic Act;

  (2) deceptive business practices;

  (3) medicare or medicaid fraud;

  (4) a misdemeanor or felony offense involving:

    (A) murder; 

    (B) assault;

    (C) burglary;

    (D) robbery;

    (E) theft;

     (F) sexual assault; 

    (G) injury to a child;

    (H) injury to an elderly person;

    (I) child abuse or neglect;

    (J) tampering with a governmental record;

    (K) forgery;

    (L) perjury; 

    (M) failure to report abuse;

    (N) bribery;

    (O) harassment;

    (P) insurance claim fraud, including under the Penal Code §32.55;

    (Q) solicitation under the Penal Code §38.12(d) or Occupations Code, Chapter 102; or 

    (R) mail fraud;

  (5) delivery, possession, manufacture, or use of or the dispensing or prescribing a controlled substance, dangerous drug, or narcotic; or

  (6) other misdemeanors or felonies, including violations of the Penal Code, Titles 4, 5, 7, 9, and 10, which indicate an inability or tendency for the person to be unable to perform as a licensee or registrant or to be unfit for licensure or registration if action by the board will promote the intent of the Chiropractic Act, board rules including this chapter, and Occupations Code, Chapter 53.