TITLE 22. EXAMINING BOARDS

PART 3. TEXAS BOARD OF CHIROPRACTIC EXAMINERS

CHAPTER 78. RULES OF PRACTICE

22 TAC §78.1

The Texas Board of Chiropractic Examiners (Board) adopts amendments to Chapter 78, §78.1, concerning Unprofessional Conduct, with additional non-substantive edits made to the proposed text that was previously published in the January 13, 2017, issue of the Texas Register (42 TexReg 39).

The amended rule will more clearly delineate the Board's Rules regarding unprofessional 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 two attorneys who specialized in representing healthcare professionals.

This rule was proposed for publication at the Board's meeting on November 17, 2016. The proposed language was published in the Rules Committee and the Board agendas. Comment on the proposal was sought during the Rules Committee and Board meetings prior to this publication in the Texas Register.

All comments received regarding this amendment were considered by the Board. Non-substantive changes were made to further clarify the amendment as described above.

This amended rule is adopted under Texas Occupations Code §201.152, relating to rules and Subchapter G of the Chiropractic Act, License Requirements. Section 201.152 authorizes the Board to adopt rules necessary to regulate the practice of chiropractic to protect the public health and safety. Subchapter L provides the framework to authorize the Board to administer administrative penalties.

No other statutes, articles, or codes are affected by the amendment.

§78.1.Unprofessional Conduct.

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

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

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

(i) inappropriate sexual comments about or 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; and

(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; and

(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 three 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 duties 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 relating to licensure or practice, failure to comply with a board order or any other applicable law pursuant to the Chiropractic Act or board rules.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 1, 2017.

TRD-201701752

Courtney Ebeier

General Counsel

Texas Board of Chiropractic Examiners

Effective date: June 1, 2017

Proposal publication date: January 13, 2017

For further information, please call: (512) 305-6715


22 TAC §78.10

The Texas Board of Chiropractic Examiners (Board) adopts amendments to Chapter 78, §78.10, concerning Schedule of Sanctions, with changes to the proposed text as published in the January 13, 2017, issue of the Texas Register (42 TexReg 41) and will be republished.

The amended rule implements the Board staff's recommended reorganization of the violations set forth in the Maximum Sanctions Table, into categories by risk of harm to the public. The specific violations set forth in the table were categorized to better reflect the level of risk of harm to the public. Changes to the categories rendered certain language in subsection (c) of §78.10, no longer applicable. Legislation passed in 2015, that placed licensure of radiologic technicians under the Texas Medical Board, also required a change in subsection (a) definitions, deletion of "DSHS" to replace with "TMB".

A stakeholder meeting was held on October 19, 2016, wherein individuals gave input regarding restructuring §78.10(b) Maximum Sanctions Table. Stakeholders making comment included several practicing doctors of chiropractic, an assistant attorney general, representatives of the Texas Chiropractic Association and two attorneys who regularly represent healthcare professionals.

This amended rule was proposed for publication at the Board's meeting on November 17, 2016. The proposed language was published in the Rules Committee and the Board agenda. Comment on the proposal was sought during the Rules Committee and the Board meetings prior to this publication in the Texas Register. The amended rule was proposed for adoption at the February 18, 2017, Board meeting.

All comments received regarding this amendment were considered.

This amended rule is adopted under Texas Occupations Code §201.152, relating to rules and Subchapters K & L of the Chiropractic Act, License Requirements. Section 201.152 authorizes the Board to adopt rules necessary to regulate the practice of chiropractic to protect the public health and safety. Subchapters K & L provide the framework to authorize the Board to impose disciplinary and administrative penalties.

No other statutes, articles, or codes are affected by the amendment.

§78.10.Schedule of Sanctions.

(a) The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) APA--Administrative Procedure Act, Government Code, Chapter 2001.

(2) Board--Texas Board of Chiropractic Examiners.

(3) Chiropractic Act or CA--Occupations Code, Chapter 201 (formerly Texas Civil Statutes, Article 4512b).

(4) HPCA--Health Professions Council Act, Occupations Code, Chapter 101.

(5) HRC--Human Resources Code.

(6) Licensee--A person who is licensed by the board to practice chiropractic in the State of Texas.

(7) MRTCA--Medical Radiologic Technologist Certification Act, Occupations Code, Chapter 601.

(8) Occ. Code--Occupations Code.

(9) Respondent--An individual or facility regulated by the board against whom a complaint has been filed.

(10) SOAH--State Office of Administrative Hearings.

(11) TMB--Texas Medical Board.

(b) The following table contains maximum sanctions that may be assessed for each category of violation listed in the table:

Figure: 22 TAC §78.10(b) (.pdf)

(c) In a case where a respondent has committed multiple violations or multiple occurrences of the same violation, Board staff, the enforcement committee or an administrative law judge may recommend, and the board may impose, sanctions in excess of a maximum sanction specified in the maximum sanction table provided by subsection (b) of this section, if otherwise authorized by law.

(d) An administrative penalty may not exceed $1,000 per day for each violation. Each day a violation continues or occurs is a separate violation for the purposes of imposing an administrative penalty.

(e) For violation of a statute which is not listed in the maximum sanction table and for which the board is authorized to take disciplinary action, the maximum sanction is revocation and/or $1,000 administrative penalty.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 1, 2017.

TRD-201701755

Courtney Ebeier

General Counsel

Texas Board of Chiropractic Examiners

Effective date: June 1, 2017

Proposal publication date: January 13, 2017

For further information, please call: (512) 305-6715