TBCE Proposes Rules Changes in March
Written by Editor   
Friday, March 30, 2018 11:05 AM

The Texas Board of Chiropractic Examiners (TBCE) proposes amending several rules that they deem 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.

[Red strikethrough] indicates deletions.  Blue indicates additions.

§78.3.Individuals with Criminal Backgrounds.

(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 or [,] 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 or [,] 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 upon the licensee's [or registration on the license or registration holder'simprisonment 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 or [,] 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 or [,] 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 or [,] 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 or [,] registered CRT [, or licensed 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 or deferred adjudication 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 or deferred adjudication 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. The applicant for a license [or registration] or current licensee [or facility owner] shall provide certified copies of the indictment or information and the judgment of the court with this notification. 

(g) Upon notification of a conviction or deferred adjudication, 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 or deferred adjudication 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 §78.8(d) of this title (relating to Complaint 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, if necessaryof: 

(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.

Rule 78.5

The TBCE proposes amending rule 78.5, concerning “Duty to Respond to Complaint and Request for Information or Records." 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 amendment is to remove the reference of regulation of facilities and facility owners stated in the rule.

§78.5. Duty to Respond to Complaint and Request for Information or Records.

(a) An individual or facility regulated by the board shall cooperate with the board in its investigation of a complaint filed against the individual [or facility]. Upon receipt of a notice of a complaint or request for information or records from the board, an individual [or facility] shall respond to the complaint and any request by the board for information or records concerning the complaint. A notice of a complaint will be sent "Certified Return Receipt Requested" and must be accepted by the individual [or facility] or their designee. A duplicate copy of the complaint will be sent by the United States mail, and so doing raises a presumption of delivery. The original notice and the copy will be sent to the respondent's current business or mailing address on file with the board, which the respondent is required to maintain with the board by §75.1 of this title (relating to Notification and Change of Business Address), [§73.1 of this title (relating to Chiropractic Facilities),] or §74.2 of this title (relating to Registration of CRTs). For the purposes of this chapter and Chapter 79 of this title (relating to SOAH Proceedings), the last known address of a respondent is presumed to be the current business or mailing address on file with the board.

(b) The response to the complaint and to any request by the Board for information or records shall be in writing, sent no later than the 15th day after receipt of the notice from the board, and shall be directed to the attention of the board's Enforcement Committee.

(c) Failure to timely respond to a complaint and any request by the Board for information or records shall be an independent ground for disciplinary action by the board.


22 TAC §78.7

The TBCE proposes amending rule 78.7, concerning “Public Interest Information.” 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 amendment is to remove the reference of regulation of facilities and facility owners stated in the rule.

§78.7.Public Interest Information.

(a) In order for the public to have access to the board and the board's procedures by which complaints are filed with and resolved by the board, each licensee practicing at a facility is equally responsible for displaying a placard or sign furnished by the board containing the name of the board, mailing address, and telephone number for the purpose of directing complaints to the board is posted at the facility.

[(a) In order for the public to have access to the board and the board's procedures by which complaints are filed with and resolved by the board, each chiropractic facility is required to display a placard or sign furnished by the board containing the name of the board, mailing address, and telephone number for the purpose of directing complaints to the board. Each licensee practicing at a facility and each owner required to be registered with the board are equally responsible for ensuring that the public information placard and current annual registration certification are posted compliance with this section.]

(b) The placard or sign shall be conspicuously and prominently displayed in a place in the facility in public view, such as the public reception area.

(c) Each licensee [and registrant] shall display their original current [annual] registration, in a prominent and conspicuous place in each facility in which the individual practices, in public view, such as the public reception area. [Each chiropractic facility shall display its original current annual registration in a conspicuous and prominent place in the facility, in public view, such as the public reception area. Any reproduction of a facility registration displayed in lieu of the original is not permitted.] A licensee or CRT may display a copy of his or her current [annual] registration if he or she works in more than one facility; however, the original registrationmust be displayed in the facility in which the licensee or CRT provides the majority of his or her services.


22 TAC §78.8

The TBCE proposes amending rule 78.8, concerning “Complaint Procedures.” 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 amendment is to remove the reference of regulation of facilities and facility owners stated in the rule.

§78.8.Complaint Procedures.

(a) Filing complaints. A person who has a complaint about a licensee [, facility] or CRT may file a complaint with the board [in person] at the board's office, or in any written form, including submission of a completed complaint form. The board adopts the following form in both English and Spanish as its official complaint form which shall be available from the board upon request. A complaint shall contain information necessary for the proper processing of the complaint by the board, including:

[Figure: 22 TAC §78.8(a)]

(1) complainant's name, address and phone number;
(2) name, address and phone number of the chiropractor, [chiropractic facility,] CRT or other person, firm or corporation, if known, against whom the complaint is made;
(3) date, time and place of occurrence of alleged violation; and
(4) complete description of incident giving rise to the complaint.

(b) Categories of complaints and investigation.

(1) The board shall distinguish between categories of complaints as follows:

(A) consumer and patient complaints against chiropractors or[,CRTs[, or chiropractic facilities]regarding alleged violations of state law, including the Texas Chiropractic Act, or board rules or orders;

(B) alleged unauthorized practice of chiropractic by unlicensed individuals[, unregistered facilities]or CRTs, or by a licensee[, facility]or CRT while a suspension order or restrictive sanction by the board is in effect;

(C) licensure[, registration]or reinstatement applications;

(D) alleged advertising violations by chiropractors[or chiropractic facilities].

(2) The board shall prioritize complaints for purposes determining the order in which complaints are investigated, taking into account the seriousness of the allegations made in a complaint and the length of time a complaint has been pending.

(A) The board shall create and maintain a written list of the categories of complaints in order from the most serious to least serious violations of the Texas Chiropractic Act or administrative rules. The list shall also cite the specific rules and statutes that may have been violated, and the fines or other penalties that may be assessed.

(B) The board shall have this list available at the board office and on the board website for interested parties.

(C) The board shall use this list to set priorities for the investigation of complaints against licensees with the most serious complaints being of the highest priority.

(3) All complaints or reports of alleged violations will be investigated by the board. However, anonymous complaints may not be investigated if insufficient information is provided or the allegations are vague, appear to lack a credible or factual foundation, or cannot be proved for lack of a witness or other evidence. The executive director of the board will determine whether or not an anonymous report will be logged in as a complaint for investigation. A complaint shall not be dismissed without appropriate consideration. The board and a complainant shall be advised of a dismissal of a complaint.

(4) The board staff may initiate an investigation, including the filing of a complaint, on an individual [or facility] regulated by the board for compliance with the law or board rules or order.

(c) Enforcement Committee.

(1) The President shall appoint an Enforcement Committee to consider all complaints filed with the board. The Executive Director under the direction of the Enforcement Committee chair shall supervise all investigations.

(2) The Enforcement Committee shall have the power to issue subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of books, records, and documents, to issue commissions to take depositions, to administer oaths and to take testimony concerning all matters within the assigned jurisdiction.
(3) The Enforcement Committee shall determine the disposition of a complaint as provided in this subsection and §78.9 and §78.10 of this title (relating to Disciplinary Guidelines and Schedule of Sanctions, respectively). The Enforcement Committee may delegate the authority to close certain complaints to the Executive Director.
(4) The Enforcement Committee may schedule an informal conference in a case in order to hear from the complainant and the respondent, in person, or if it believes a conference may facilitate the resolution of the case. A respondent, although not required, is urged to attend the informal conference. A complainant will be given notice of the conference and invited to attend. A complainant is not required to attend an informal conference.
(5) Informal conferences shall not be deemed to be meetings of the board.

(6) In a case where the Enforcement Committee has made a finding of a violation for which a sanction should be imposed, the committee may direct staff to offer an agreed order to the respondent in an effort to resolve the case informally. If an agreed order is not accepted by the respondent or no agreed order is offered, the case will be referred to the SOAH for formal hearing. The Enforcement Committee shall present an agreed order to the board for its approval once it has been signed by the respondent. Should the board amend the proposed order, the executive director shall contact the respondent to seek concurrence. If the respondent does not concur, the Enforcement Committee shall determine whether negotiations on an agreed order should continue or to refer the case for formal hearing.

(d) Commencement of formal hearing proceedings. Board staff shall commence formal hearing proceedings by filing the case with the SOAH and by giving notice to the respondent as provided §79.2 of this title (relating to Commencement of Enforcement Proceedings).

(e) Recission of probation.

(1) The board may at any time while an individual [or facility] is on probation upon majority vote rescind the probation and enforce the board's original action suspending such license [or registration] for violation of the terms of the probation or for other good cause as the board in its discretion may determine. Violations of probation shall be referred to the Enforcement Committee for action under this section. Probation shall not be rescinded without notice and an opportunity for a hearing on whether or not the probation has been violated.

(2) The board shall maintain a chronological and alphabetical listing of licensees [, facilities,] and CRTs, who have had their license [or registration,] suspended or revoked, and shall monitor compliance with each order. Any noncompliance observed as a result of monitoring shall be referred to the Enforcement Committee for action under this section.

(f) Reinstatement. An individual [or chiropractic facility] whose license [or registration] has been revoked for a period of more than one year may, after the expiration of at least one year from the date that such revocation became final, apply to the board, on forms provided by the board, for reinstatement. In considering the reinstatement of a revoked license [or registration], the board in its discretion may:
(1) deny reinstatement; or
(2) grant reinstatement:
(A) without condition;
(B) with probation for a specified period of time under specified conditions; or

(C) with or without reexamination or additional training.

(g) Temporary suspension upon threat to public. The Enforcement Committee or the board, with a two-thirds vote, may temporarily suspend a license to practice chiropractic in the State of Texas if the committee or the board determines from the preponderance of the evidence or information presented to it that continued practice by the licensee constitutes a continuing or imminent threat to the public welfare. The purpose of a temporary suspension is to protect the public until a preliminary hearing can be held.

(1) Such suspension may occur without notice or hearing if at the time the suspension is ordered, a hearing on whether a disciplinary proceeding should be initiated is scheduled not later than the 14th day after the date of suspension.

(A) The purpose of the 14-day hearing is to provide the licensee with notice and an opportunity to review the Board's evidence or information, to present evidence, raise defenses, and to be heard.

(B) At the 14-day hearing, the only issue presented is whether the temporary suspension should be dissolved or kept in place. If the administrative law judge finds that the Board has competent evidence or information that continued practice by the licensee constitutes a continuing or imminent threat to the public welfare, then the administrative law judge may issue an order keeping the temporary suspension in place pending the initiation of other disciplinary proceedings against the licensee.

(2) A second hearing on the suspended license shall be held not later than the 60th day after the date the suspension was ordered. This 60-day hearing shall determine whether the suspension shall remain in effect pending the initiation, prosecution, and final determination of other disciplinary proceedings against the licensee. If the 60-day hearing is not held in the time required, the license is reinstated without further action of the board or committee.

(3) A hearing held under this subsection shall be conducted by the SOAH.

(4) The licensee will be notified of a suspension and any hearing scheduled under this subsection by certified mail to the address on file with the Board and by facsimile and/or email if such numbers or addresses are known to the Board. The notice sent by certified mail is legal notice under this section.

(5) The suspension shall remain in effect pending further action by the board unless an administrative law judge, the committee, or the board orders the suspension rescinded after hearing.

(6) The licensee shall not practice chiropractic during the duration of the suspension.

(7) During the suspension the enforcement and investigatory processes will continue.

(8) The licensee may waive either the 14-day or 60-day hearing or may agree that such hearings can be held beyond the statutory deadlines. The temporary suspension shall remain in effect until a hearing is held or is otherwise dissolved.

(h) Alternative Methods of Service. Upon agreement of the party to be notified, the Board may utilize electronic means sent to the current electronic-mail or telecopier number of the party's attorney of record or of the party if the party is not represented by counsel.

Earliest possible date of adoption: April 22, 2018
For further information, please call: (512) 305-8028


Source:  http://www.sos.state.tx.us/texreg/archive/March232018/Proposed%20Rules/22.EXAMINING%20BOARDS.html#16