TBCE Adopted Rules: Sept. 2015
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Wednesday, September 09, 2015 12:24 PM

The Texas Board of Chiropractic Examiners at their August meeting adopted rules changes.  Below are the rules changes adopted by the TBCE.   Red indicates newly added language.  Strikethrough indicates language to be deleted.


22 TAC §71.2 – The Texas Board of Chiropractic Examiners (Board) adopts amended Chapter 71, §71.2, concerning Petition for Adoption of Rules, without changes to the proposed text as published in the July 17, 2015, issue of the Texas Register (40 TexReg 4517).   Click the hyperlink above for previous proposal.

Repeal of old 22 TAC §77.5 – The Texas Board of Chiropractic Examiners (Board) adopts the repeal of Chapter 77, §77.5, concerning Delegation of Authority. This repeal is adopted without changes to the proposal as published in the April 17, 2015, issue of the Texas Register (40 TexReg 2163).

Adoption of new 22 TAC §77.5 – The Texas Board of Chiropractic Examiners (Board) adopts new Chapter 77, §77.5, concerning Delegation of Authority

Comment was received from Texas Medical Association (TMA). In regard to subsection (a), the language in the rule regarding health care was modified to chiropractic care. Further modest changes have been made to the rule as originally proposed to assist in clarifying the rule.

TMA asserts that use of diagnosis does not adequately track the statutory language of "analyze, examine or evaluate." The Board relies upon the prior ruling from the Third Court of Appeals that established that diagnosis was a synonym for the "analyze, examine or evaluate" language of the statute. Thus, the rule does not enlarge the statutory provision. The Board does note that the matter has been brought before a court for review once again, but presently, it is the established law and the Board shall abide by it accordingly.

Similarly, in subsection (b)(1), the Board relies upon the same ruling of the Third Court of Appeals. With regard to notion that the rule permits the delegation of a treatment plan, it is a misreading of the text. The language in subsection (b) clearly indicates that a licensee "shall not allow" that to occur.

With regard to subsection (c)(1), the AHA/AMA's scientific statement is noted, but as the TMA itself notes, the "scientific statement" lacks the certainty associated with the scientific statement. Certainly, the Board is always concerned with the safe practice of chiropractic to ensure the health and welfare of the public, but TMA's reliance upon a cautionary statement unsupported by scientific proof is misplaced. There is no reason to believe that the properly trained student engaged in an outpatient program will cause an imminent harm to the public's health and safety while a chiropractor is present onsite and prepared to handle any emergency that may arise promptly. The concerns with subsection (d) are subsumed in the Board's comments above.

Concerning subsection (e), it is axiomatic that delegation must necessarily involve the ability to delegate that which one possesses authority to do. Thus, TMA's concerns that this provision expands scope are unsupported. Further, any single portion of a rule should not be read in isolation. Nothing within this rule precludes the requirements of chiropractors to ensure compliance with Chapter 78 which governs the rules of practice.

Likewise, TMA's comment on subsection (f) regarding diagnosis is subsumed in the Board's comments above wherein the Board relies upon the decision of the Third Court of Appeals. The comment relating to clarifying that the chiropractor is permitting action by delegation is well received, and the language was modified accordingly. It should additionally be noted that the changes to subsection (a) respond to TMA's concerns on scope. Moreover, no rule should be read in isolation. Nothing within this rule absolves a person of compliance with Rule 74.2 concerning chiropractic radiologic technologists and the general prohibitions contained therein. Additionally, TMA suggests without compelling rationale that chiropractors may not employ "prescribed physical therapy modalities, therapeutic procedures, physical medicine and rehabilitation" because such procedures are beyond the scope of chiropractic. However, this appears contradictory to the plan language of the Chiropractic Act which expressly authorizes chiropractors to "perform[] nonsurgical, nonincisive procedures, including adjustment and manipulation to improve the subluxation complex or the biomechanics of the musculoskeletal system." See TEX. OCC. CODE §201.002(b)(2). Finally, the Board notes that concern regarding delegation in excess of other provisions of law is well received. New subsection (l) provides that a chiropractor may not delegate to a subordinate beyond any provision of existing law, code or provision that would prohibit such action.

With regard to subsection (g), TMA's concerns regarding scope are adequately addressed by Chapter 78 concerning Rules of Practice. Again, a rule should not be read in isolation. Doing so would lead to the absurd result of rules restating that which has already been stated and would create the untenable situation of unnecessary repetition.

Under subsection (h), TMA notes that a provision of the Chiropractic Act is not restated in full. As expressed above, unnecessary repetition is undesirable and ineffectual. Further, a mere recitation of the language of the statute is not the proper employment of a rule. Under Government Code §2001.003, a rule is a "state agency statement of general applicability that (i) implements, interprets, or prescribes law or policy; or (ii) describes the procedure or practice requirements of a state agency...." A restatement of the statute is not found within the definition of a rule. As such, the Board does not believe this suggestion to be well founded.

Concerning TMA's comment on subsection (i) suggesting the addition of a statement that a licensee "retains full responsibility." The Board finds this to be a distinction without a difference. Further, the addition of the superfluous often has the effect of weakening the plainly stated. In this instance, the phrase "responsible for" would be weakened because adding the phraseology "retains full responsibility" necessarily implies that the former does not require full and complete responsibility. Therefore, this addition is not well founded. No modifications have been made accordingly.

In relation to subsection (j), TMA points out that radiological procedures and the supervision of students that have not completed an outpatient clinic should require the physical presence of the chiropractor. Additionally, they urge deletion of the 15 minute on-call availability requirement. This is nonsensical. First, there are a myriad of situations where a chiropractor may delegate the authority to a subordinate. The application of heat packs or a cold compress or positioning a patient upon a table are some of the many mundane and routine tasks and procedures that occur daily. The requirement to be present during each would severely limit a chiropractor from seeing a reasonable volume of patients and/or providing the quality of patient interaction consistent with the safety and welfare of the public. Next, the rule contemplates that a chiropractor must ensure that a person possesses the proper qualifications and training prior to delegation. Nothing within this rule removes that requirement. It merely permits the chiropractor to exercise discretion in that delegation. An abuse of that discretion has in the past and could in the future subject a chiropractor to administrative sanctions. Thus, the rule is consistent with maintaining the safety and welfare of the public.

Finally, on subsection (k), TMA seeks to have the rule modified to encompass situations where a licensee delegates under the act to be included in the patient's records. The Board would note that supervision is a broader concept than that of delegation. The inclusion of delegation does not appear to accomplish anything substantive that has not already been provided in Rule 77.8. In an effort to avoid redundancy, the language is left unmolested.

The Texas Chiropractic Association also noted a need to revise and clarify subsection (a) of the rule. The suggestion was well-received and the modification is reflected in the adopted language.

This new rule now reads:

§77.5.Delegation of Authority.

(a) The purpose of this section is to encourage the more effective use of the skills of licensees by establishing guidelines for the delegation of chiropractic care tasks to a qualified and properly trained person acting under a licensee's supervision to ensure proper diligence and efficient practice of chiropractic. This section provides the standards for credentialing a chiropractic assistant in Texas.

 (b) Except as provided in this section, a licensee shall not allow or direct a person who is not licensed by the board to perform procedures or tasks that are within the scope of chiropractic, including:

(1) rendering a diagnosis and prescribing a treatment plan; or 

(2) performing a chiropractic adjustment or manipulation.

(c) A licensee may allow or direct a student enrolled in an accredited chiropractic college to perform chiropractic adjustments or manipulations if that student has qualified for admission to the outpatient clinic at the aforementioned college. The chiropractic adjustment or manipulation must be performed under the supervision of a licensee who need not be physically present in the treating room at the time of the adjustment or manipulation, but must be on-site at the time of the adjustment or manipulation. 

(d) A licensee may allow or direct certain recent graduates of an accredited chiropractic college to perform chiropractic adjustments or manipulations. A "recent graduate" is one who graduated from a chiropractic college accredited by the Council on Chiropractic Education (CCE) within the previous twelve (12) months.

(1) The licensee shall notify the Board in writing within ten (10) days of the graduate's hire/employment date and provide the name of each recent graduate, the name of the chiropractic college and date of graduation, a copy of the graduate's diploma, and the name and license number of the licensee supervising the graduate.

(2) The supervising chiropractor shall notify the Board within ten (10) days of the graduate's status as contained within this section.

(e) In delegating the performance of a specific task or procedure, a licensee shall verify that a person is qualified and properly trained. "Qualified and properly trained" as used in this section means that the person has the requisite education, training, and skill to perform a specific task or procedure.

(1) Requisite education may be determined by a license, degree, coursework, on-the-job training, or relevant general knowledge.

(2) Requisite training may be determined by instruction in a specific task or procedure, relevant experience, or on-the-job training.

(3) Requisite skill may be determined by a person's talent, ability, and fitness to perform a specific task or procedure.

(4) A licensee may delegate a specific task or procedure to an unlicensed person if the specific task or procedure is within the scope of chiropractic and if the delegation complies with the other requirements of this section, the Chiropractic Act, and the board's rules.

(f) A licensee may allow or direct a qualified and properly trained person, who is acting under the licensee's delegation, to perform a task or procedure that assists the doctor of chiropractic in making a diagnosis, prescribing a treatment plan or treating a patient if the performance of the task or procedure does not require the training of a doctor of chiropractic in order to protect the health or safety of a patient, such as:

(1) taking the patient's medical history; 

(2) taking or recording vital signs;

(3) performing radiologic procedures;

(4) taking or recording range of motion measurements;

(5) performing other prescribed clinical tests and measurements;

(6) performing prescribed physical therapy modalities, therapeutic procedures, physical medicine and rehabilitation, or other treatments as described in the American Medical Association's Current Procedural Terminology Codebook, the Centers for Medicare and Medicaid Services' Health Care Common Procedure Coding System, or other national coding system;

(7) demonstrating prescribed exercises or stretches for a patient; or

(8) demonstrating proper uses of dispensed supports and devices.

(g) A licensee may not allow or direct a person:

 (1) to perform activities that are outside the licensee's scope of practice;

(2) to perform activities that exceed the education, training, and skill of the person or for which a person is not otherwise qualified and properly trained; or

(3) to exercise independent clinical judgment unless the person holds a valid Texas license or certification that would allow or authorize the person to exercise independent clinical judgment. 

(h) A licensee shall not allow or direct a person whose chiropractic license has been suspended or revoked, in Texas or any other jurisdiction, to practice chiropractic in connection with the treatment of a patient of the licensee during the effective period of the suspension or upon revocation.

(i) A licensee is responsible for and will participate in each patient's care. A licensee shall conform to the minimal acceptable standards of practice of chiropractic in assessing and evaluating each patient's status. 

(j) It is the responsibility of each licensee to determine the number of qualified and properly trained persons that the licensee can safely supervise. A licensee must be on-call when any or all treatment is provided under the licensee's direction unless there is another licensee present on-site or designated as being on-call. On-call means that the licensee must be available for consultation within 15 minutes either in person or by other means of telecommunication.

(k) A licensee's patient records shall differentiate between services performed by a doctor of chiropractic and the services performed by a person under the licensee's supervision. 

(l) No provision contained within this section authorizes a chiropractor to delegate tasks or care to a subordinate in abrogation of any established law, code or provision to the contrary.

22 TAC §78.13 – The Texas Board of Chiropractic Examiners (Board) adopts amendment to Chapter 78, §78.13, concerning Scope of Practice, without changes to the proposed text as published in the July 17, 2015, issue of the Texas Register (40 TexReg 4521)

Repeal of Old 22 TAC §78.17

The Texas Board of Chiropractic Examiners (Board) adopts the repeal of Chapter 78, §78.17, concerning Spinal Screenings. 

Adoption of New 22 TAC §78.17

The Texas Board of Chiropractic Examiners (Board) adopts new Chapter 78, §78.17, concerning Spinal Screenings, with changes to the proposed text as published in the April 17, 2015, issue of the Texas Register (40 TexReg 2167). The new rule will be republished with modifications.

The Texas Medical Association (TMA) provided comments. TMA believed it was in the best interest of the public to require signage informing the public about where to file a complaint and require each person performing chiropractic services under the Chiropractic Act to wear a name tag identifying the person's name and licensure status. However, the Board maintains that adding flexibility to the rule in the nature of signage does not compromise the Board's role of protecting the public's safety and well-being. In addition, the rule requires that members of the public be provided with ready access to business cards from the sponsoring clinic. Virtually any member of the public should be able to contact the Board and initiate a complaint if a situation warranted such action. But the additional requirement that persons conducting screenings be readily identifiable is well received and the rule has been modified accordingly.

This new rule reads:

§78.17.Spinal Screenings.

(a) The purpose of this section is to set forth the minimal standards for conducting out-of-facility spinal screenings. A licensee may offer a spinal screening outside of a registered facility only if they are in compliance with this section.

(b) At all out-of-facility spinal screenings:

(1) the booth, site or location must prominently display the name of the sponsoring facility;

(2) the sponsoring facility must have business cards with contact information readily available to the public;

(3) the licensee must possess on their person the wallet size proof of licensure;

(4) a licensee and/or clinic sponsoring a spinal screening is responsible for ensuring compliance with §77.2 of this title (relating to Publicity); and

(5) a licensee may allow or direct any staff or employee to conduct a spinal screening upon ensuring compliance with §77.5 of this title (relating to Delegation of Authority), and maintaining proof of adequate training. 

(c) Any person providing chiropractic services under this section shall wear on their person a readily visible identification tag that provides the name of the person and whether the person is licensed as a chiropractor under Chapter 201, Occupations Code.

22 TAC §§80.1 - 80.4 – The Texas Board of Chiropractic Examiners (Board) adopts new Chapter 80 and §§80.1 - 80.4, concerning General Regulatory Provisions, without changes to the proposed text as published in the July 17, 2015, issue of the Texas Register (40 TexReg 4524) Find these proposals at this page.

Source:  http://www.sos.state.tx.us/texreg/archive/September42015/Adopted%20Rules/22.EXAMINING%20BOARDS.html#245