Part III.
Texas Board of Chiropractic Examiners
Chapter 75.
Rules of Practice
22 TAC §75.10
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Texas Board of Chiropractic Examiners or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Chiropractic Examiners proposes
to repeal §75.10, relating to administrative fines and penalties. By
a separate rulemaking, the Board is proposing to revise some of its disciplinary
rules. The subject matter of §75.10 is being transferred to a new §75.11.
New provisions setting out guidelines for disciplinary actions will be placed
in a new §75.10.
Joyce Kershner, Director of Licensure, has determined that for the first
five-year period the proposed repeal is in effect, there will be no fiscal
implications for state or local government as a result of enforcing or administering
the proposed repeal.
Ms. Kershner also has determined that for each year of the first five years,
the repeal is in effect, the public benefit anticipated as a result of enforcing
the rule, will be a greater notice to licensees and the public of the board's
policy and procedure for disciplining licensees who have violated the Act
or board rules. The proposed schedule of sanctions will serve to promote consistency
in discipline matters and provide advance notice to licensees of the possible
penalty for non-compliance with state law and regulations. There will be no
anticipated effect on small businesses or anticipated economic cost to persons
who are required to comply with the proposed rule except to the extent a licensee
is assessed an administrative penalty for non-compliance. The amount of the
penalty will be determined by the board based on the proposed sanction schedule
and other specified factors.
Comments may be submitted no later than 30 days from the date of this
publication, to Joyce Kershner, Rules Committee, Texas Board of Chiropractic
Examiners, 333 Guadalupe, Tower III, Suite 825, Austin, Texas 78701.
The repeal is proposed under the Chiropractic Act, Texas Civil
Statutes, Article 4512b, §§4(c), 4a, which the board interprets
as authorizing it to adopt rules necessary for the performance of its duties,
the regulation of the practice of chiropractic, and the enforcement of the
act, including §§14, 14a, 19e, which authorizes the board to sanction
licensees and others for violations of the Act and its rules and orders, and
§14(d) which the board interprets as requiring the board to adopt rules
relating to the imposition of sanctions for violations of the Act.
The following are the statutes, articles, or codes affected by the proposed
repeal:
§75.10, §75.11 - Texas Civil Statutes, Article 4512b, §§4(c),
4a, 14, 14a, 14e, 19a.
§75.10.Administrative Fines and Penalties.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of the Secretary of State, on
January 15, 1999.
TRD-9900249
Gary K. Cain, Ed.D.
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: February 28, 1999
For further information, please call: (512) 305-6709
22 TAC §75.10, §75.11
The Texas Board of Chiropractic Examiners proposes new §75.10
and §75.11, relating to its disciplinary process for violations of board
rules and orders, and state law, including the Chiropractic Act, Texas Civil
Statutes, Article 4512b. By separate rulemaking, the board proposes to repeal
§75.10 relating to administrative fines and penalties. In this rulemaking,
the subject matter of §75.10 is addressed in the newly proposed §75.11.
Newly proposed §75.10 sets out guidelines and procedures for disciplinary
actions, including the purpose for the section as proposed, the types of sanctions
that the board may impose, and the factors to be considered in the imposition
of sanctions. Section 14(d) of the Act requires the board to adopt a schedule
of maximum sanctions that the board may impose for violations of the Act.
Proposed §75.11 revises the current schedule in §75.10 by specifying
in more detail the violations for which sanctions may be imposed and the possible
maximum sanction for each violation.
Joyce Kershner, Director of Licensure, has determined that for the first
five-year period the proposed new rules are in effect, there will be no fiscal
implications for state or local government as a result of enforcing or administering
the proposed rules.
Ms. Kershner also has determined that for each year of the first five years,
the proposed rules are in effect, the public benefit anticipated as a result
of enforcing the rules will be greater notice to licensees and the public
of the board's policy and procedure for disciplining licensees who have violated
the Act or board rules. The proposed schedule of sanctions will serve to promote
consistency in disciplinary matters and provide advance notice to licensees
of the possible penalty for non-compliance with state law and regulations.
There will be no anticipated effect on small businesses or anticipated economic
cost to persons who are required to comply with the proposed rules, except
to the extent a licensee is assessed an administrative penalty for non-compliance.
The amount of the penalty will be determined by the board based on the proposed
sanction schedule and other specified factors.
Comments may be submitted no later than 30 days from the date of this publication,
to Joyce Kershner, Rules Committee, Texas Board of Chiropractic Examiners,
333 Guadalupe, Tower III, Suite 825, Austin, Texas 78701.
The new rules are proposed under the Chiropractic Act, Texas
Civil Statutes, Article 4512b, §§4(c), 4a, which the board interprets
as authorizing it to adopt rules necessary for the performance of its duties,
the regulation of the practice of chiropractic, and the enforcement of the
Act, including §§14, 14a, 14e and 19a, which authorizes the board
to sanction licensees and others for violations of the Act and its rules and
orders, and §14(d) which the board interprets as requiring the board
to adopt rules relating to the imposition of sanctions for violations of the
Act.
The following are the statutes, articles, or codes affected by the proposed
rules:
§75.10, §75.11 - Texas Civil Statutes, Article 4512b, §§4(c),
4a, 14, 14a, 14e, 19a.
§75.10.Disciplinary Guidelines.
(a)
Purpose. The purpose of these guidelines is to:
(1)
provide guidance and a framework of analysis for board
staff, the enforcement committee and the administrative law judges to promote
consistency in the making of recommendations on sanctions to the board in
disciplinary cases;
(2)
promote consistency in the exercise of sound discretion
by the board in the imposition of sanctions in disciplinary cases; and
(3)
provide guidance for the enforcement committee and
other members of the board for the informal resolution of potentially contested
matters.
(b)
Limitations. This section shall be construed and applied
so as to preserve the board's discretion in the imposition of sanctions and
remedial measures pursuant to the Chiropractic Act, §§14, 14a, 14e,
19a. This section shall be further construed and applied so as to be consistent
with the Act, and shall be limited to the extent as otherwise proscribed by
statute and board rule.
(c)
Board action. The board may take disciplinary action against
a licensee who is found in violation of the Chiropractic Act, another state
law for which disciplinary action may be taken or a rule or order of the board.
A disciplinary action may be composed of any one or a combination of the following
sanctions:
(1)
revocation of license;
(2)
suspension of license for a definite period of time;
(3)
suspension with probation for a definite period of
time;
(4)
formal reprimand;
(5)
administrative penalty
(6)
additional continuing education.
(d)
Practicing without a license. A person, not a licensee,
who is found to be practicing without a license in violation of the Chiropractic
Act, §5a, shall be assessed an administrative penalty as provided by
§75.11 of this title (relating to Schedule of Sanctions).
(e)
Additional conditions. The Board may impose, as a condition
of probation or as a term of a sanction, additional conditions or restrictions
upon the licensee that the Board deems necessary to facilitate the rehabilitation
and education of the licensee and to protect the public, including but not
limited to:
(1)
completion of a specified number of continuing education
hours on specified topics approved in advance by the board in addition to
the minimum number required of all licensees as a condition of renewal;
(2)
taking and passing with the minimum required score
of an examination required by the board;
(3)
restrictions on the type of treatment, treatment procedures,
and/or class of patients to be treated;
(4)
restrictions on the licensee's supervision of others
in the practice of chiropractic;
(5)
undergoing a psychological and/or medical evaluation
by a qualified professional approved in advance by the board and undergoing
any treatment recommended pursuant to the evaluation;
(6)
regular reporting to the board as a means of monitoring
the licensee's compliance with a board order.
(f)
Down-time. A licensee whose license has been suspended
shall not during the period of suspension realize any remuneration from his
or her chiropractic practice; be in attendance in his or her office when it
is open to serve patients; or provide chiropractic services to any person
at any location. The licensee may arrange with another licensee to provide
care and treatment to patients during the period of down-time so long as the
suspended licensee does not receive any form of payment for chiropractic services
rendered, including fee sharing with the treating licensee.
(g)
Aggravation. The following may be considered as aggravating
factors so as to merit more severe or restrictive sanction by the board:
(1)
seriousness of the violation, including the nature, circumstances,
extent, or gravity of the prohibited conduct and the harm or potential harm
to a patient;
(2)
economic harm to any individual or entity, to property
or the environment;
(3)
hazard or potential hazard created to the health,
safety, or economic welfare of the public;
(4)
attempted concealment of misconduct;
(5)
premeditated conduct;
(6)
intentional misconduct;
(7)
disciplinary history, including prior violations of
a similar or related nature;
(8)
likelihood of future misconduct of a similar nature;
(9)
failure to implement remedial measures to correct
or alleviate harm arising from the misconduct;
(10)
lack of rehabilitative potential;
(11)
motive;
(12)
the type of sanction, including the amount of any
administrative penalty, necessary to deter future violations; and
(13)
any relevant circumstances or facts increasing the
seriousness of the misconduct.
(h)
Extenuation and mitigation. The absence of the circumstances
listed as subsection (g)(1)-(8) of this section, as well as the presence of
the following factors, may be considered as extenuating and mitigating factors
so as to merit less severe or less restrictive sanctions by the board:
(1)
self-reported and voluntary admissions of misconduct;
(2)
implementation of remedial measures to correct or
mitigate harm arising from the misconduct;
(3)
motive;
(4)
rehabilitative potential;
(5)
relevant facts and circumstances reducing the seriousness
of the misconduct;
(6)
relevant facts and circumstances lessening responsibility
for the misconduct.
(i)
The board shall consider the factors listed in subsections
(g) and (h) of this section in determining the amount of an administrative
penalty under §75.11 of this title (relating to Schedule of Sanctions).
(j)
All disciplinary actions issued by the board will take
the form of a board order. All disciplinary actions shall be recorded and
made available upon request as public information. All disciplinary actions
shall be published in the Journal of the Texas Chiropractic Association, may
be released in a press release , and shall be transmitted to the Chiropractic
Information Network-Board Action Data Bank (CIN-BAD) or other national data
bank as required by law.
§75.11.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)
Board - Texas Board of Chiropractic Examiners;
(2)
Chiropractic Act or CA- Texas Civil Statutes, Article
4512b;
(3)
HPC-Health Professions Council Act, Texas Civil Statutes,
Article 4512p;
(4)
Licensee - A person who is licensed by the board to
practice chiropractic in the State of Texas;
(5)
MRTCA-Medical Radiologic Technologist Certification
Act, Texas Civil Statutes, Article 4512m; and
(6)
TDH-Texas Department of Health.
(b)
Upon a finding that a violation of the Act, another state
law, or a rule or order of the board has occurred and that disciplinary action
is warranted, the enforcement committee shall determine and recommend the
type and amount of sanction.
(c)
The following table is a schedule of maximum sanctions
that may be assessed for each category of violation:
Figure: 22 TAC §75.11(c)
(d)
Depending on the circumstances of a case, including 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 if otherwise authorized
by law. For the fourth and subsequent offenses of any violation with three
levels of sanctions, the maximum sanction is revocation and/or $1,000 administrative
penalty.
(e)
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.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State, on
January 15, 1999.
TRD-9900250
Gary K. Cain, Ed.D.
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: February 28, 1999
For further information, please call: (512) 305-6709
Chapter 361.
Administration
Subchapter B. Petition for Adoption of Rules
Part XVII.
Texas State Board of Plumbing Examiners