Sunset Commission Dec. 8, 2016 Meeting Report
Written by Editor   
Sunday, December 11, 2016 08:08 PM

News Bite: The Texas Sunset Advisory Commission has adopted the Sunset Staff Report with several additions. The most significant was recommending to the Texas Legislature to add the word "diagnose" to the Chiropractic Act as a clarification of what a chiropractic doctor is authorized to do within the scope of chiropractic practice. This report lists excerpts from the Staff Report and highlights a brief explanation.

On Dec. 8, 2016, the Texas Sunset Advisory Commission held a meeting that included the commission's review of the Texas Board of Chiropractic Examiners.  At the Sunset Commission Website LOCATED HERE, beginning at around 1:56:00, the TBCE portion of the committee meeting begins.  

The committee first undertook approval of section 1.1 through 1.6 of the Sunset Staff report.  This portion of their report has been REPORTED HERE and includes the following excerpts:

  • 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.”
  • Senator Charles Schweriner proposed an additional statutory change to protect a complainant's identity and to remove a board's authority to accept anonymous complaints.  
The commission adopted Issue 1 as modified.

The commission then undertook issue 2, previously REPORTED HERE:

  • The Sunset staff recommends a change to the Chiropractic Act:  Discontinue registration of chiropractic facilities.  “This recommendation would deregulate chiropractic facilities by removing statutory provisions and related board rules requiring registration. As a result, chiropractic facility owners would no longer have to register or pay registration and renewal fees to the board. However, licensees would continue to report the addresses of their employment or practice and notify the board of any changes within 30 days, as is currently required by rule. The board would also maintain its authority to enter chiropractic facilities as part of an investigation. 

The commission adopted issue 2.

The commission then undertook issues 3.1 and 3.2, previously REPORTED HERE

  • The Sunset Staff recommends several changes to the Chiropractic Act: “repeal the local and executive peer review requirements from statute. … Instead, the board would use the expert review process .... to obtain expert opinion on standard of care complaints.” 
  • They also recommend “require the board to develop an expert review process in rule to ensure chiropractic expertise in its enforcement process. This recommendation would require the board to develop an expert review process for investigating complaints that require additional expertise. … contract as needed with a pool of qualified experts to review cases to aid in the board’s investigation. The board should develop rules by March 1, 2018…” 

The commission adopted issue 3.

The commission then undertook issue 4.1 through 4.8, previously REPORTED HERE:

  • Require the board to conduct fingerprint-based criminal background checks of all licensure applicants and licensees.  New licensees already undergo a fingerprint-based background check. This recommendation would require existing chiropractors who did not undergo a  fingerprint-based criminal background check upon initial licensure to undergo checks. Due to the large number of chiropractors who have not undergone ngerprint background checks, the recommendation would allow for a two-year, staggered implementation timeframe, which must be complete by September 1, 2019. To ensure compliance, this recommendation would authorize the board to administratively suspend a chiropractor’s license for failing to comply with the background check requirement. Obtaining up-to-date criminal history on all chiropractors would ensure the agency can effectively monitor all licensees for criminal conduct and take disciplinary action to protect the public when warranted.”
  • Remove unnecessary provisions requiring applicants to be of good moral character …. a standard that is unclear, subjective, and difficult to enforce. The board would continue to receive and review criminal history information to determine the applicant’s eligibility for licensure.”
  • “Authorize the board to check for disciplinary actions in other states or from other licensing boards for license applications and renewals, and to pursue any necessary enforcement action.  This recommendation would expand the board’s ability to identify problems and authorize it to take any necessary enforcement action based on actions taken by other states or other Texas licensing boards, so long as the conduct is also a violation of Texas law or board rule. ... This recommendation would direct the board’s licensing staff to cross reference national practitioner databanks, … when processing initial license applications and renewals for all licensed chiropractors. … this recommendation would direct the board to require chiropractors to disclose upon application or renewal if they are licensed with other in-state occupational licensing boards, and whether that license is in good standing.”
  • “Remove the limitation on the number of times an applicant can take the board’s jurisprudence exam. The recommendation would also remove any established time constraints between exam attempts to eliminate unnecessarily restrictive licensure requirements.”
  • “Authorize the board to provide biennial license renewal.  The board would determine when to start and how to implement biennial renewals.  is recommendation would reduce time spent on processing renewals and alleviate burden on staff without compromising agency oversight of licensees.”
  • “Remove the statutory limitation currently restricting the agency’s authority to lower fees. This recommendation would remove the fee floor currently listed in statute.”
  • “Direct the board to stop requiring letters of recommendation as part the initial application process.”
  • “Direct the board to limit its continuing education audit process. This recommendation would direct board staff to no longer audit 100 percent of continuing education submissions for all licensed chiropractors each year.”  

The commission adopted issue 4.

The commission then undertook issue 5.1 and 5.2, previously REPORTED HERE:

“The board’s statute does not reflect standard language typically applied across-the-board during Sunset reviews.  While the agency’s functions should continue, its organizational structure must be evaluated in conjunction with the Sunset Commission’s review of other comparable health licensing agencies.”  It is time for the Texas Legislature to modernize the Chiropractic Act.  The Sunset staff agree and recommend changes in the Chiropractic Act.  They recommend “continue the regulation of chiropractors, but postpone the decision on continuation of the Texas Board of Chiropractic Examiners until completion of the Sunset reviews of other health licensing agencies. … the Texas Board of Chiropractic Examiners would be a likely candidate for consolidation. As shown in the findings, the agency struggles to ensure the most effective and efficient regulation of chiropractic, and consolidation could allow for a focus on the implementation of best practices and more robust regulationdesigned to better protect the public.”

The consideration of consolidation is scheduled for another commission meeting.

A new issue was raised by the Sunset Commission Vice Chair, Sen. Van Taylor.  Sen. Taylor moved to add the word "diagnose" to the definition of chiropractic for clarification purposes.  He noted that DCs would be permitted to diagnose only within their scope of practice, that medical diagnosis outside of the scope would not permitted, and that this was not and expansion of scope issue.  He emphasized that this focuses on the definition of diagnosis.  "It's in the statute already, this is a clarification issue that clarifies that 'analyze, evaluate, examine' mean diagnose. 

On a roll call vote, this new issue passed 11 to 1.  The new issue was ADOPTED and the Sunset Commission will recommend to the Texas Legislature that the word "diagnose" be added to the Chiropractic Act to clarify the meaning of what is already present in the Act. 

That concluded the TBCE issues and recommendations for this meeting.