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10/8/2019

Additional TBCE Rules Updates

The Texas Board of Chiropractic Examiners (Board) has proposed a number of rules changes.  Comments on the proposals may be submitted to Christopher Burnett, General Counsel, Texas Board of Chiropractic Examiners, 333 Guadalupe, Suite 3-825, Austin, Texas 78701, via email: rules@tbce.state.tx.us; or fax: (512) 305-6705.

These changes include:

Rule 71.1 – The board proposed the repeal of 22 TAC §71.1 (Definitions). The Board will replace the rule with updated language from the current §71.2. The current §71.1 is being repealed because it contains redundant definitions to remove unneeded text, streamline the process, and make the Board's rules easier to read and navigate.

The proposed new rule reads (underline indicates new text):
§71.1. Petition for Adoption of Rules.
(a) A person may request the Board adopt a rule.
(b) A person shall make a request in writing and deliver it to the Board's offices.
(c) A request shall include:
(1) the person's name and contact information;
(2) the proposed rule's language;
(3) a statement whether the requested rule conflicts with any existing rule, statute, or judicial opinion; and
(4) a statement of the proposed rule's purpose.
(d) The Rules Committee shall consider a request within 30 days after receipt.
(e) The Rules Committee may request additional information from the person.
(f) If the Rules Committee denies a request, the person may ask to appear before the Board to appeal the decision.
(g) If the Rules Committee approves a request, that approval constitutes initiation of formal Board rulemaking.
(h) The Board's decision to approve or deny a request is final.
(i) If the Rules Committee or the Board denies a request, it shall state its reasons in writing.

Rule 71.2 –  The board proposed the repeal of 22 TAC §71.2 (Petition for Adoption of Rules). The Board is proposing an updated version of the text of this rule in a new §71.1 (noted above).

Rule 72.1 –  The board proposed the repeal of 22 TAC §72.1 (Definitions). The purpose of this action is to remove superfluous rules and make the Board's rules easier to read and navigate.


Rule 72.10 – The board proposed the repeal of  22 TAC §72.10 (Jurisprudence Exam Disqualification).  A new rule is proposed that reads:
§72.10 Appealing a Denied Application.
(a) An individual whose license application has been denied by the Board may request a hearing be held by the State Office of Administrative Hearings (SOAH).
(b) An individual shall ask for a hearing by filing a request in writing to the Board within 30 days of receiving notice of the application denial.
(c) A written request for a hearing shall include the legal and factual basis for seeking to overturn the Board's denial of the application.
(d) The Board shall deny any request for a hearing not timely received.
(e) The Board shall file a docket request for a SOAH hearing within 10 days.
(f) The Board shall give notice of the hearing date, time, and location to a denied individual at least 10 days before the hearing.
(g) A hearing under this section shall be conducted under Texas Government Code Chapter 2001 and SOAH rules.

Rule 72.12 – The board proposed the repeal of 22 TAC §72.12 (Criminal History Evaluation Letters).  A new rule is proposed that reads:

§72.12.Criminal History Evaluation Letters.
(a) An individual enrolled in or planning to enroll in chiropractic school who believes the individual may be ineligible for a license due to a conviction or deferred adjudication for a felony or misdemeanor offense may request a criminal history evaluation letter from the Board.
(b) An individual requesting a letter shall submit:
(1) a completed request form;
(2) a statement of the basis for the possible ineligibility;
(3) the required fee;
(4) official copies of court documentation of the conviction or deferred adjudication; and
(5) a statement by the vendor submitting the individual's fingerprints to the Texas Department of Public Safety (DPS) and the Federal Bureau of Investigation (FBI) that the individual requested a criminal history report be submitted to the Board.
(c) The Board may request additional information from an individual to complete the evaluation.
(d) An individual shall timely respond to requests for additional information.
(e) The Board shall issue a letter with the Board's determination within 90 days of the final receipt of the items in subsection (b) of this section and the criminal history report.
(f) In the letter, the Board shall state either that the individual is eligible or ineligible for a license.
(g) If it determines the individual is ineligible, the Board shall state the grounds for the ineligibility.
(h) The Board shall state in an evaluation letter that the Board's determination is limited to the law in effect and the facts known on the date the letter is issued. 


Rule 75.1 – The board proposed the repeal of 22 TAC §75.1 (Code of Ethics). A new rule is proposed that updates the text relating to what constitutes the ethical practice of chiropractic for clarity and to provide clearer guidance to the Board’s licensees as to their ethical requirements. The new proposal reads:
§75.1.Code of Ethics.
(a) A licensee shall use good faith to provide information to patients to allow them to make an informed choice about proposed chiropractic treatment.
(b) A licensee shall consult with other health care professionals when appropriate.
(c) A licensee may not discriminate against patients based on race, religion, ethnicity, nationality, creed, gender, handicap, or sexual preference.
(d) A licensee shall promote public health, illness prevention, and the alleviation of suffering.
(e) A licensee shall respect a patient's privacy at all times.
(f) A licensee should help others in the practice of the profession.
(g) A licensee should maintain the highest standards of education and training.

Rule 75.3 – The board proposed the repeal of 22 TAC §75.3 (Fraud Prevention).  A new rule is proposed that reads:
§75.3.Fraud Prevention.
(a) A licensee may not commit fraud as defined in the Penal Code against patients or third parties.
(b) A licensee who commits fraud is subject to disciplinary action.
(c) A licensee who commits fraud in connection with health insurance or workers' compensation insurance under the jurisdiction of the Texas Department of Insurance is also subject to disciplinary action by the Board.
(d) A licensee shall report any suspected fraud to the Board.

Rule 77.1 – The board proposed the repeal of 22 TAC §77.1 (Definitions).  A new rule that moves the language relating to advertising and public communication from the current §77.2 is proposed.  It reads:

§77.1.Advertising and Public Communications.
(a) A licensee, or a licensee's employee, agent, or partner may not use or authorize the use of any public communication or advertising containing a false, misleading, deceptive, or fraudulent claim, or indicating the licensee provides services outside the scope of practice.
(b) A licensee intending to include a testimonial statement in any public communication or advertising shall maintain a signed statement from the person making the statement for two years from date of last publication.
(c) A licensee shall identify the licensee as "doctor of chiropractic," "D.C.," "chiropractic," or "chiropractor" in all public communication or advertising if the licensee uses the term "doctor" or "Dr." in the communication or advertising.
(d) An individual may not use the terms "doctor of chiropractic," "D.C.," "chiropractor," or "chiropractic" in any public communication or advertising without holding an active license.
(e) A licensee shall identify by name the board certifying the licensee's credentials in any public communication or advertising using the term "Board Certified" or similar term.
(f) An unlicensed individual who holds a doctorate of chiropractic degree may use the individual's academic title in public communication or advertising if the individual clearly indicates the individual's status as unlicensed in Texas.
(g) In any public communication or advertising, if a licensee makes a claim based on a research study, the licensee shall:
(1) clearly identify the research study; and
(2) provide the source of the research study to the Board or the public upon request.
(h) In any public communication or advertising, a licensee may not state any service is free unless the communication or advertising clearly states all component services which are included.
(i) A licensee shall be responsible for any agent, employee, or partner acting on the licensee's behalf who violates this section.
(j) An individual violating this section is subject to disciplinary action.

Rule 77.2 – The board proposed the repeal of 22 TAC §77.2 (Advertising, Public Communications, and Telemarketing).  A new rule that updates and clarifies the language on telemarketing practices by licensees and their agents to make the Board’s rules easier to navigate and read is proposed.  It reads:
§77.2.Telemarketing.
(a) A licensee using telemarketing may not misrepresent to any person contacted that the licensee has any association with an insurance company.
(b) A licensee using telemarketing may not misrepresent to any person contacted that the licensee has any association with another doctor of chiropractic.
(c) A licensee using telemarketing may not promise the successful treatment of any condition.
(d) A licensee using telemarketing shall identify the licensee by name and the name of any affiliated healthcare practice, if any, to any person contacted.
(e) A licensee using telemarketing shall maintain a copy of any script used and a log of all contacts made including the date, telephone number, and the name of each person contacted for two years.
(f) A licensee shall be responsible for any agent, employee, or partner acting on the licensee's behalf who violates this section.
(g) A licensee violating this section is subject to disciplinary action.

Rule 77.3 – The board proposed the repeal of 22 TAC §77.3 (Patient's Rights to Disclosure of Charges).   A proposed new rule that clarifies the text of a licensee’s obligation to timely provide patients with a statement of charges makes the Board’s rules easier to navigate and read.  It reads:
§77.3.Patient's Rights to Disclosure of Charges.
(a) Upon request, after services or goods are rendered, a licensee shall provide a patient a written receipt or summary of all charges for that day.
(b) A licensee who violates this section is subject to disciplinary action.

Rule 78.2 – The board proposed the repeal of 22 TAC §78.2 (Prohibitions)  A proposed new rule reiterates the acts that are outside the scope of chiropractic practice under Occupations Code Chapter 201. The new rule also makes clear that an individual operating outside the scope of practice may be subject to legal action by the Board and other regulatory agencies.  It reads:

§78.2.Prohibitions on the Scope of Practice.
(a) A licensee may not:
(1) perform, prescribe, or order incisive or surgical procedures;
(2) prescribe controlled substances, dangerous drugs, or any other drug that requires a prescription;
(3) use, prescribe, or order x-ray therapy or therapy that exposes a body to radioactive materials; or
(4) perform, prescribe, or order solely cosmetic treatments.
(b) A licensee performing acts in subsection (a) of this section is practicing outside the scope of practice.
(c) A licensee who violates this section may be subject to disciplinary action by the Board.
(d) A licensee who violates this section may be subject to legal action by other governmental entities.

Rule 78.3 – The board proposed the repeal of 22 TAC §78.3 (Delegation of Authority)  A proposed new rule clarifies the text relating to when and to whom a licensee may delegate certain tasks to a non-licensee. Language in the current rule relating to delegation to chiropractic students and recent graduates will be updated and moved to a new §78.4  It reads:

§78.3.General Delegation of Responsibility.
(a) "Qualified individual" means an unlicensed individual with adequate education, training, and skill to perform an act.
(b) A licensee may not delegate responsibility to render a diagnosis, prescribe a treatment plan, or perform adjustments or manipulations under this section.
(c) A licensee may delegate responsibility to a qualified individual to perform acts within the scope of practice, including:
(1) taking a medical history;
(2) taking or recording vital signs;
(3) taking or recording range of motion measurements;
(4) performing physical treatments as described in the American Chiropractic Association Clinical Documentation Manual, 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;
(5) demonstrating exercises or stretches; or
(6) demonstrating the use of supports and devices.
(d) A licensee shall document that an individual is qualified to perform an act.
(e) A licensee may not allow an individual whose chiropractic license has expired or been suspended or revoked in any jurisdiction to treat a patient in any manner, including acts in subsection (c) of this section.
(f) A licensee shall determine a reasonable number of qualified individuals a licensee can safely supervise.
(g) A licensee shall be physically present or on-call when any qualified individual performs an act in subsection (c) of this section unless another licensee is physically present at the place of business or on-call.
(h) "On-call" means a licensee must be available for voice consultation within 15 minutes.
(i) A licensee shall differentiate on a patient's records between acts performed by the licensee and acts performed by a qualified individual.
(j) A licensee who violates this section is subject to disciplinary action.

Rule 78.4 – The board proposes new 22 TAC §78.4 (Delegation to Chiropractic Students and Recent Graduates). This action moves existing language relating to students and recent graduates from §78.3 (General Delegation of Responsibility) into a stand-alone rule. The new rule clarifies when a licensee may delegate responsibility to a student or recent graduate, the limits on that delegation, and the requirements to notify the Board when employing or supervising those individuals. The Board's intent is to make the requirements for students and recent graduates easier to both find and read.  The new rule reads:
§78.4.Delegation to Chiropractic Students and Recent Graduates.
(a) A licensee may delegate responsibility to a student or recent graduate under this section if:
(1) the licensee has held an active chiropractic license in good standing in Texas or another jurisdiction for five years; and
(2) the licensee has been licensed by the Board for at least one year.
(b) A licensee may delegate to a student currently enrolled in an accredited chiropractic college the performance of adjustments or manipulations if the student has qualified for admission to the college's outpatient clinic.
(c) A licensee shall be on-site, but need not be physically present, when a student performs an adjustment or manipulation.
(d) A licensee may delegate to a recent graduate of an accredited chiropractic college the performance of adjustments or manipulations.
(e) "Recent graduate" is an individual who has graduated within the previous 12 months from an accredited chiropractic college.
(f) A licensee shall be on-call when a recent graduate performs an adjustment or manipulation.
(g) A licensee delegating responsibility to a recent graduate under subsection (d) of this section shall submit to the Board in writing the following within ten days of hire:
(1) the graduate's name;
(2) the graduate's employment date;
(3) the name of the graduate's chiropractic college;
(4) the date of graduation;
(5) a copy of the graduate's diploma; and
(6) the name and license number of the licensee supervising the graduate.
(h) A licensee may not delegate the performance of adjustments or manipulations to a recent graduate under subsection (d) of this section after the one year anniversary of the individual's graduation.
(i) An individual performing adjustments or manipulations under subsections (b) or (d) of this section may not represent to the public that the individual is a licensed chiropractor.
(j) A licensee may not delegate responsibility to render a diagnosis or prescribe a treatment plan under this section.
(k) An individual who violates this section is subject to disciplinary action.

Rule 78.5 – The board proposed the repeal of 22 TAC §78.5 (Spinal Screenings) This rule is no longer necessary as the Board's recently adopted rules on a licensee's place of business (§75.2) and mandatory notices to the public (§75.6 and §75.7) include the requirements applicable to spinal screenings. 


Rule 78.10 – The board proposes new  22 TAC §78.10 (Questions about Scope of Practice). This action moves and updates existing language relating to questions to the Board about scope of practice from §78.2 (Prohibitions) into a stand-alone rule. The new rule clarifies that the Board may only give informal answers to scope of practice questions.  It reads:  

§78.10.Questions about Scope of Practice.
(a) The Board may informally answer a question of whether a service, procedure, device, or treatment is within the scope of practice.
(b) A person shall submit any question concerning scope of practice in writing to Board staff.
(c) A person submitting a question shall provide detail of the service, procedure, device, or treatment sufficient to render an answer.
(d) A person may not rely on any informal answer the Board provides as a legal opinion or guidance, Board policy, or Board rule.

Rule 79.2 – The board proposed the repeal of 22 TAC §79.2 (Lack of Diligence).   For clarity, a proposed new rule updates the text relating to what constitutes the diligent practice of chiropractic. The purpose is to make the Board’s rules easier to navigate for licensees.   It reads:  

§79.2.Lack of Diligence.
(a) A licensee shall:
(1) conform to the generally accepted standards of care of the profession;
(2) properly evaluate a patient;
(3) protect a patient's privacy, dignity, safety, and confidential records;
(4) timely transfer a patient's records;
(5) timely refer a patient to another appropriate health care provider for a condition outside the scope of practice;
(6) timely refer a patient to an appropriate health care provider when the licensee determines that the patient suffers from a condition within the scope of practice but requires a diagnosis or treatment that exceeds the licensee's abilities; and
(7) adequately supervise students and recent graduates.
(b) A licensee may not:
(1) perform or attempt to perform procedures for which the licensee is untrained;
(2) delegate responsibilities to an untrained individual;
(3) physically harm or allow physical harm to an individual;
(4) abandon a patient without reasonable cause and adequate notice; or
(5) expose an individual to unsafe or unsanitary conditions.
(c) A licensee who violates this section is subject to disciplinary action.

Rule 79.4 –  The board proposed the repeal of 22 TAC §79.4 (Impaired Licensees and Applicants). A proposed new rule updates text of what grounds the Board will consider in determining if a licensee or applicant is incapable of holding a licensee due to substance abuse or health conditions. The rule also includes new language encouraging licensees or applicants to self-report any substance abuse or health issues to the Board.  The new rule reads:

§79.4.Impaired Licensees and Applicants.
(a) The Board may require a licensee to undergo a mental or physical examination by a Board-designated health care provider if the Board has reasonable cause to believe the licensee is impaired.
(b) A licensee is impaired if the licensee is unable to practice chiropractic with reasonable skill and safety because of substance abuse or any mental or physical condition.
(c) The Board may require an applicant for a license to undergo an examination under subsection (a) of this section as a condition of licensure.
(d) Reasonable cause includes:
(1) a sworn statement from an individual with actual knowledge of relevant facts that a licensee is impaired;
(2) evidence that a licensee or applicant left a substance abuse treatment program before completion;
(3) evidence of repeated arrests for intoxication or offenses in which intoxication is a factor;
(4) evidence of repeated temporary mental health confinements;
(5) evidence of a chronic illness or condition that prevents an individual from safely practicing chiropractic; or
(6) any other evidence the Board believes shows a licensee or applicant is a danger to the public.
(e) The Board shall treat the results of any examination conducted under subsection (a) of this section as confidential.
(f) If necessary, the Board may use the results of an examination under subsection (a) of this section as grounds to revoke or suspend a license or to place a license on probation.
(g) If necessary, the Board may use the results of an examination under subsection (a) of this section as grounds to deny an application for a license or to impose restrictions on a license if granted.
(h) To the extent consistent with the Board's duty to protect the public, the Board shall assist any individual who self-reports a substance abuse or mental health problem to retain or be granted a license.

Rule 80.10 – The board proposes new 22 TAC §80.10 (Time Limits for Filing a Complaint). This action establishes a time limit for filing a complaint alleging a rule violation with the Board. The six year limit mirrors the length of time a licensee is required to maintain patient records.  This new proposal reads: 

§80.10.Time Limits for Filing a Complaint.
The Board may dismiss a complaint alleging only a violation of a Board rule if the acts forming the basis for the complaint occurred more than 6 years before the date the complaint was filed.

Rule 81.1 – The board proposed the repeal of 22 TAC §81.1 (Definitions) to remove superfluous rules and make the Board's enforcement rules easier to read and navigate.


Rule 81.3 – The board proposed the repeal of 22 TAC §81.3 (Application Denial). The appeals process is not an enforcement action and therefore properly belongs in the fees, applications, and renewals chapter (Chapter 72).  See Rule §72.10 (Appealing a Denied Application) above. 


Rule 81.11 – The board proposed the repeal of 22 TAC §81.11 (Extensions of Time).  The requirements and procedures for requesting extensions of time in an administrative hearing are already detailed in the Administrative Procedures Act (Government Code Chapter 2001) and the rules of the State Office of Administrative Hearings (1 TAC Chapter 155), thus making this rule superfluous.





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