Rules Proposals Rule 78.1
Written by Editor   
Sunday, January 15, 2017 09:47 PM

News Bite:  The TBCE is proposing rules amendments concerning Grossly Unprofessional Conduct and the table of maximum  sanctions.  The proposals are reproduced here.  Take note that that there are significant changes for you to review.


The Texas Board of Chiropractic Examiners is proposing rules amendments.  Rule 78, Rules of Practice, §78.1, concerning “Grossly Unprofessional Conduct,” has proposed to more clearly distinguish the various violations that constitute unprofessional conduct.to more clearly distinguish the various violations that constitute unprofessional conduct.  TBCE Executive Director, Patricia Gilbert, has determined that the public benefit expected will be clarification of the present rule, resulting in clearer guidance for the public and stakeholders, and that it will not have an adverse economic effect on small businesses or individuals because it does not impose any duties or obligations upon small businesses or individuals.

The purpose of the amendment is to more clearly delineate the Board’s Rule regarding professional conduct. A stakeholder meeting was held on October 19, 2016, wherein various groups and individuals gave input regarding the definition of unprofessional conduct, the structure of §78.1 and the appropriate level of administrative penalties for violations of §78.1. Stakeholders making comment included several practicing doctors of chiropractic, an assistant attorney general, representatives of the Texas Chiropractic Association, and some health profession Attorneys.  The rule amendment was proposed for publication at the Board’s quarterly meeting, November 17, 2016.

Comments on the proposed amended rule and/or a request for a public hearing may be submitted to Courtney L. Ebeier, General Counsel, Texas Board of Chiropractic Examiners, 333 Guadalupe St, Tower III, Suite 825, Austin, TX 78701; fax: (512) 305-6705 or rules@tbce.state.tx.us, no later than 30 days from the date that this proposed amended rule is published in the Texas Register.

The proposed amendment to §78.1 affects the Maximum Sanctions Table set out in 22 TAC §78.10(b), which was also proposed for amendment on November 17, 2016.

§78.1.Unprofessional[Grossly Unprofessional] Conduct.

Unprofessional [Grossly unprofessional] conduct when applied to a licensee or chiropractic, facility includes, but is not limited to the following:

[(1) maintaining unsanitary or unsafe equipment;]

[(2) failing to use the word "chiropractic", "chiropractor," "Doctor, D.C.," or "Doctor of Chiropractic, D.C." in all advertising medium, including signs and letterheads;]

(1) [(3)] engaging in sexual misconduct with a patient within the chiropractic/patient relationship; Sexual misconduct as used in paragraph (1) of this section means:

(A) sexual impropriety, which includes any behavior, gestures, statements, or expressions towards a patient which may reasonably be interpreted as inappropriately seductive, sexually suggestive or demeaning, such as;

(i) inappropriate sexual comments about and to a patient or former patient including sexual comments about an individual's body which demonstrate a lack of respect for the patient's privacy;

(ii) requesting unnecessary details of sexual history or sexual likes and dislikes from a patient;

(iii) making a request to date a patient;(iv) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee;

(B) sexual intimacy, which includes engaging in any conduct that is intended to cause or reasonably interpreted to cause stimulation of a sexual nature, such as:

(i) sexual intercourse;

(ii) genital contact;

(iii) touching breasts;

(iv) masturbation by the licensee;

(v) any bodily exposure by licensee of normally covered body parts.

(C) It is a defense to a disciplinary action under paragraph (1) of this section if the patient was no longer emotionally dependent on the licensee when the sexual impropriety or intimacy began, and the licensee terminated his or her professional relationship with the person more than six months before the date the sexual impropriety or intimacy occurred.

(D) It is not a defense under paragraph (1) of this section if the sexual impropriety or intimacy with the patient occurred:

(i) with the consent of the patient;

(ii) outside professional treatment sessions; or

(iii) off the premises regularly used by the licensee for the professional treatment of patients.

(E) Licensees must respect a patient's dignity at all times and should provide appropriate gowns and/or draping and private facilities for dressing and undressing.

(2) Intentional and/or Fraudulent charging or billing for services including, but not limited to, the following:

(A) exploiting patients through the fraudulent use of chiropractic services, which results, or is intended to result, in financial gain for a licensee or a third party. The rendering of chiropractic services becomes fraudulent when the services rendered or goods or appliances sold by a chiropractor to a patient are clearly excessive to the justified needs of the patient as determined by accepted standards of the chiropractic profession;

(B) submitting a claim for chiropractic services, goods or appliances to a patient or a third-party payer which contains charges for services not actually rendered or goods or appliances not actually sold;

(C) failing to disclose, upon request by a patient or patient’s duly authorized representative, the full amount charged for any service rendered or goods supplied

(3) physically harming or threatening to physically harm a patient or another person while in practice or under the guise of chiropractic licensure;

(4) exposing a patient to unsanitary conditions in practice whether by use of unsanitary equipment or poor facility maintenance;

(5) failure to supervise the activities of staff of a chiropractic facility which results in financial or physical harm to a patient or exposure of confidential patient records;

(6) failing to specify "chiropractic," "chiropractor," "D.C." or "Doctor of Chiropractic" in all advertising medium, including signs and letterheads;

(7) using chiropractic "chiropractor," "D.C." or "Doctor of Chiropractic" in any advertising medium for services that are outside the scope of practice;

(8) using "chiropractic," "chiropractor," "D.C." or "Doctor of Chiropractic" in advertising medium at any time while not holding a chiropractic license by the board;

(9) failure to respond to a board inquiry, failure to comply with a board order or any other applicable law pursuant to the Chiropractic Act or board rules.

[(4) exploiting patients through the fraudulent use of chiropractic services which result or are intended to result in financial gain for a licensee or a third party. The rendering of chiropractic services becomes fraudulent when the services rendered or goods or appliances sold by a chiropractor to a patient are clearly excessive to the justified needs of the patient as determined by accepted standards of the chiropractic profession;]

[(5) submitting a claim for chiropractic services, goods or appliances to a patient or a third-party payer which contains charges for services not actually rendered or goods or appliances not actually sold;]

[(6) failing to disclose, upon request by a patient or his or her duly authorized representative, the full amount charged for any service rendered or goods supplied.]

[(b) Sexual misconduct as used in subsection (a)(3) of this section means]:

[(1) sexual impropriety, which may include:]

[(A) any behavior, gestures, statements, or expressions which may reasonably be interpreted as inappropriately seductive, sexually suggestive or sexually demeaning;]

[(B) inappropriate sexual comments about and to a patient or former patient including sexual comments about an individual's body or sexual comments which demonstrate a lack of respect for the patient's privacy;]

[(C) requesting unnecessary details of sexual history or sexual likes and dislikes from a patient;]

[(D) making a request to date a patient;]

[(E) initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee;]

[(F) kissing or fondling of a sexual nature; or]

[(G) any other deliberate or repeated comments, gestures, or physical acts not constituting sexual intimacies but of a sexual nature; or]

[(2) sexual intimacy, which may include engaging in any conduct by a person or between persons that is intended to cause, is likely to cause, or may be reasonably interpreted to cause to either person stimulation of a sexual nature, such as:]

[(A) sexual intercourse;]

[(B) genital contact;]

[(C) oral to genital contact;]

[(D) genital to anal contact;]

[(E) oral to anal contact;]

[(F) oral to oral contact;]

[(G) touching breasts;]

[(H) touching genitals;]

[(I) encouraging another to masturbate in the presence of the licensee;]

[(J) masturbation by the licensee when another is present; or]

[(K) any bodily exposure of normally covered body parts.]

[(c) It is a defense to a disciplinary action under subsection (a)(3) of this section if the patient was no longer emotionally dependent on the licensee when the sexual impropriety or intimacy began, and the licensee terminated his or her professional relationship with the person more than six months before the date the sexual impropriety or intimacy occurred.]

[(d) It is not a defense under subsection (a)(3) of this section if the sexual impropriety or intimacy with the patient occurred:]

[(1) with the consent of the patient;]

[(2) outside professional treatment sessions; or]

[(3) off the premises regularly used by the licensee for the professional treatment of patients.]

[(e) Licensees must respect a patient's dignity at all times and should provide appropriate gowns and/or draping and private facilities for dressing and undressing.]

An amendment is also proposed for §78.10, concerning Schedule of Sanctions as posted here:  Figure: 22 TAC §78.10(b). Here is a  brief summary:

Category I:  Up to $1000 fine per day and/or suspension or revocation

  • Sexual Misconduct
  • Lack of diligence/gross inefficient practice
  • Practicing outside the scope of practice
  • Unauthorized Practice of Acupuncture
  • Proved Insane
  • Impaired licensee/applicant
  • Practicing chiropractic while intoxicated
  • Knowingly permitting an unlicensed person to practice
  • Impersonating a licensed chiropractor
  • Improper control of patient care and treatment
  • Prescribe/administer a nontherapeutic treatment
  • Knowingly delegating chiropractic responsibility to unqualified persons
  • Procuring or assisting an abortion
  • Habit of intemperance or drug addiction or other habit endangering life of patient
  • Furnishing or prescribing controlled substances
  • Physically harming or threating to physically harm a patient
  • Criminal Conviction (sexual or violent in nature)

Category II: Up to $750 fine per day and/or suspension or revocation

  • Overtreating/overcharging a patient
  • Violates Section 311.0025 of Health and Safety Code (billing)
  • Presenting/using license, certificate or diploma/transcript illegally/fraudulently obtained, counterfeit/altered
  • Presenting untrue statement/document/testimony to pass examination
  • Directly/indirectly employing/associating with person commits unlicensed practice
  • Purchasing, selling, bartering, etc. a chiropractic degree, license, certificate, diploma/transcript relating to application to practice
  • Intentionally, fraudulently altering with a chiropractic license, certificate, or diploma
  • Commits fraud or deception in taking or passing an examination; Impersonating or acting as proxy in examination
  • Practicing without a chiropractic license
  • Impersonating a licensed chiropractor
  • Permitting a license to be used by another to practice
  • Submission of false or misleading statement, document or certificate in application for licensure
  • Employs a person whose license to practice chiropractic has been suspended, canceled or revoked
  • Aiding or abetting the practice of chiropractic by a person not licensed by the board
  • Delegating authority to a licensee whose license has been suspended or revoked
  • Delegating to a non-licensee authority to perform adjustments or manipulations
  • Failure to comply with the CA, other law or a board order or rule
  • Failure to comply with down-time restrictions
  • Medicaid fraud Medicare fraud
  • Solicitation/Barratry
  • Failure to respond to board inquiries
  • Failure to report criminal conviction
  • Bribery
  • Coercion
  • Improper Influence
  • Tamper w/ Witness
  • Destruction/Retaliation
  • Criminal Conviction (non-violent, non-sexual)

Category III: Up to $500 fine per day and/or suspension

  • Practicing with an expired license (nonrenewal due to default student loan)
  • Practicing with an expired license (nonrenewal)
  • Practicing while on inactive status
  • Practicing in non-compliance with continuing education requirements
  • Association in the practice of chiropractic with a person: whose license has been suspended, canceled or revoked; or convicted of the unlawful practice of chiropractic in any state
  • Failure to supervise chiropractic by a student or recent graduate
  • Failure to maintain sanitary conditions in practice and/or exposing a patient to unsanitary conditions
  • Failure to comply with requirements/restrictions on prepaid treatment plans
  • Practicing in a facility without a certificate of registration or with an expired registration
  • Operating a facility without a certificate of registration or with an expired registration
  • Unauthorized disclosure of patient records
  • Violation of patient confidentiality
  • Publicity; Misleading Claims Deception or Fraud in Practice Advertising – false statement, tends to mislead, or deceive public
  • Use of the term “physician,” "chiropractic physician"
  • Failure to use “chiropractor" or "D.C." in advertising
  • Using “chiropractor" or "D.C." in advertising without holding a chiropractic license issued by the board
  • Using “chiropractor” or "D.C." in advertising for services outside the scope of practice

Category IV: Up to $250 fine per day

  • Failure to furnish patient records; Overcharging for copies of patient records
  • Failure to disclose charges to patient
  • Failure to maintain patient records
  • Failure to report Out-of-Facility practice
  • Failure to display public interest information, current facility registration or current annual license renewal
  • Failing to clearly differentiate a chiropractic office/clinic from another business/enterprise
  • Failure to complete continuing education
  • Failure to comply with Spinal Screenings requirements
  • Failure to report change of address
  • Failure to report change of facility address/ownership
  • Failure to report locum tenens information
  • Default on Student Loan
  • Performing radiologic procedures without registering, with an expired registration, or without DSHS approval; failure to renew (including non- payment of fees)
  • MRTCA, DSHS rules or order
  • Performing (1) radiologic procedures without supervision, or (2) cineradiography or other restricted procedure

The TBCE Is also proposing a review of Chapter 75, Licenses and Renewals, to consider whether the reasons for initially adopting these rules continue to exist and whether these rules should be repealed, readopted or readopted with amendments.  Any repeals or necessary amendments identified during the review of these rules will be proposed and published in the Texas Register.


 Source: http://www.sos.state.tx.us/texreg/archive/January132017/Proposed%20Rules/22.EXAMINING%20BOARDS.html#4