Sunset Commission Issues TBCE Report – Issue 1
Written by Editor   
Sunday, October 09, 2016 12:04 PM

Issue 1 of the Sunset Commission’s Staff Report is slow complaint resolution and misplaced focus on low-risk enforcement activities.  They speculate that this could present risks to patient safety.

“By focusing too much time and resources on administrative violations, the board risks delays in investigating violations that could jeopardize patient safety. The board’s slow complaint resolution time, despite comparably low caseloads, raises concerns about the investigation process. The board cannot clearly account for its investigators’ time, does not formally prioritize complaints according to public risk, and uses an overly broad definition of “gross unprofessional conduct” that does not distinguish between high- and low-risk violations. When investigations find a violation requiring enforcement action, the board’s penalty guidelines put almost all violations in the highest severity category — effectively equating providing substandard chiropractic care with defaulting on student loan payments.”

“Quick complaint resolution is critical to protect the public from potentially harmful chiropractors in need of disciplinary action,” the report notes.  While about 95% of all DCs have NOT had a “recent violation,” according to the TBCE self-evaluation, and “although early performance measures for fiscal year 2016 indicate that the board is resolving complaints more quickly, complaint resolution timelines for the board have been chronically higher than other agencies,” the Sunset report lists the complaints associated with this issue.

These complaints include “the board does not direct investigators to prioritize investigations that pose the greatest risk to the public,” it does not provide direction on which complaints to investigate first. “As a result,” the report speculates, “serious complaints about chiropractors, such as for sexual misconduct, could linger unresolved while those chiropractors continue to practice.”

The report also notes that “while the board does categorize violations for penalty purposes, this categorization is meaningless because the board categorizes nearly all violations in the highest severity category. … The vast majority of board violations reside in tier one – 54 out of 72 potential violations.” [Tier one consists of the worst violations that merit up to $1000 in penalties per day.]

“Such broad categorization of tier one violations,” says the report, “means a violation that poses real threat to public health and safety, such as causing harm to a patient with substandard care, is on equal level with a continuing education violation.” Or “operating at a facility with an expired registration, an administrative violation presenting minimal public harm, merits the same administrative penalty as more a serious violation like unauthorized disclosure of patient records.”

The report also notes that “board rule gives equal weigh to sexual misconduct and rusty machines. The board’s broad definition of ‘grossly unprofessional conduct’ hinders the board’s ability to distinguish between low- and high-risk violations. … the board includes the use of unsanitary or unsafe equipment along with engaging in sexual misconduct with a patient and billing for services not rendered.”  They note that "the board assesses administrative penalties for grossly unprofessional conduct when chiropractic facilities have rusty equipment that never touches patients’ skin, have dirty refrigerators, or have construction dust on their unused adjustment tables. Such a range of conduct qualifying as grossly unprofessional devalues the term and undermines its intent as a tier one violation. Additionally, the lack of written guidance or policy on what constitutes unsanitary equipment creates subjectivity, allowing investigators to apply the standard inconsistently.”

The report also had issues that board policies may discourage complaints from being filed by the public.  Maintaining complainant confidentiality, not requiring medical records release on every complaint, and making it easier to file complaints on the TBCE website.

Recommendations for this issue include:

Direct the board to develop a plan to improve its investigative process and reduce complaint resolution timeframes.  “The board should develop the plan with input from staff and stakeholders … the plan should be approved by the board and submitted to the Sunset Advisory Commission no later than June 1, 2017.”

Direct the board to prioritize investigations by risk to the public.  “Formally guide prioritization of complaint investigations based on the risk the complaint poses to patients’ safety, as well as other indicators such as repeat violations.  The board should develop complaint investigation priorities with stakeholder input as necessary, [and] train investigators on how to prioritize their caseloads.  …Prioritizing complaints would ensure the most efficient allocation of scarce resources toward the highest-risk complaints. The board should adopt rules by June 1, 2017.”

Direct the board to revise its penalty matrix to more closely align the severity of penalties with the risk a violation poses to the public.  Categorize “violations by the risk the violation would pose to the public and recommend appropriate penalties. The board would seek input from stakeholder groups in developing the rule, as well as in public hearings. … ensure violations that could endanger the public, such as standard of care violations or practicing outside the scope, result in more serious penalties than administrative violations or violations that pose less direct risk to the public. …The board should adopt rules by June 1, 2017.”

Direct the board to clearly define grossly unprofessional conduct.   “Clearly define in rule what actions constitute grossly unprofessional conduct, especially as it relates to unsanitary and unsafe equipment. …consider placing the use of unsanitary and unsafe equipment in a different prioritization tier than the other actions that constitute grossly unprofessional conduct. Through rule, the board should clearly link characteristics of unsanitary and unsafe equipment to the risk the equipment poses to patient health and safety and define the specific criteria that must be present for equipment to be deemed unsanitary or unsafe. Clearly defining the risk and criteria necessary to document unsanitary and unsafe equipment would remove the subjective nature from the terms unsanitary and unsafe, and would allow for greater consistency in sanctions. More narrowly defining grossly unprofessional conduct as it relates to unsanitary and unsafe equipment would allow the agency to focus on investigating violations that pose a greater risk to patients.”

Direct the board to maintain complainants’ confidentiality when possible.  “The board could consider summarizing the complaint allegations or redacting copies of complaints when providing notice of a complaint to respondents. By better protecting complainants’ identities, this recommendation would make the public more comfortable filing complaints without fear of retaliation.”

Direct the board to develop a more user-friendly online complaint form. “This recommendation would direct the board to develop a form on their website that allows the public to submit complaints online.  The form should also clarify the specific types of complaints that require patients to sign records release forms. Allowing the public to more easily submit complaints online and not requiring records release forms for each type of complaint would lower the barriers some patients may have to submitting complaints.”