22 TAC §75.1
The Texas Board of Chiropractic Examiners proposes an amendment
to §75.1, relating to grossly unprofessional conduct. Section 75.1 currently
defines grossly unprofessional conduct to include sexual misconduct. Amendments
to §75.1 are made for the purpose of clarifying the types of conduct
which the board considers sexual misconduct. The amendments provide specific
descriptions of conduct which are considered to be "sexual improprieties"
or "sexual intimacies," both of which are sexual misconduct. The prohibited
conduct enumerated in the proposed amendments are not exclusive lists. Other
types of conduct, based on the totality of circumstances, could also be considered
sexual misconduct in violation of this rule and the Chiropractic Act, Texas
Civil Statutes, Article 4512b §14a.5. The proposed amendments also provide
a defense to the offense of sexual misconduct if the conduct occurred after
the patient client relationship and the emotional dependency of the patient
ended. The proposed amendments expressly exclude consent, conduct off-premises
or outside of treatment sessions as defenses. The proposed amendments are
modeled after rules of other occupational licensing agencies, including the
board of examiners of psychologists (22 TAC §465.33 (relating to Sexual
Intimacies and Sexual Harassment)) and the board of examiners of professional
counselors (22 TAC §681.33 (relating to Sexual Misconduct)).
Cindy Palmer, Financial Officer, Texas Board of Chiropractic Examiners,
has determined that for the first five-year period the section as amended
is in effect, there will be no fiscal implications for state or local government
as a result of enforcing or administering the section as amended.
Dr. Carolyn Davis-Williams, D.C., Chair, Enforcement Committee, has determined
that for each year of the first five years, the section as amended is in effect,
the public benefit anticipated as a result of enforcing and administering
the section as amended will be better notice to the public and licensees of
the types of conduct which may subject a licensee to disciplinary action.
A licensee is, therefore, forewarned that certain types of conduct are prohibited
and should be guided in his or her relationships with patients accordingly.
Likewise, the public has a standard of conduct by which to gauge a licensee's
actions. It is also anticipated that the proposed definitions will provide
better guidance to the enforcement committee in carrying out its disciplinary
responsibilities. There are no probable economic costs to persons required
to comply with the rule as proposed.
Comments may be submitted to Joyce Kershner, Rules Committee, Texas Board
of Chiropractic Examiners, 333 Guadalupe, Tower III, Suite 825, Austin, Texas
78701.
The amendment is proposed under Texas Civil Statutes, Article
4512b, §§4(c), 4a, which the board interprets as authorizing it
to adopt rules necessary for performance of its duties, the regulation of
the practice of chiropractic, and the enforcement of the act, and §8b(d),
which the board interprets as requiring the board to identify the key factors
for the competent performance by a licensee of the licensee's professional
duties.
The following are the statutes, articles, or codes affected by the proposed
amendment:
§75.1 -- Texas Civil Statutes, Articles 4512b, §§4(c), 4a,
8b(d), 14a
§75.1. Grossly Unprofessional Conduct.
(a)
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 "chiropractor," "Doctor, D.C.,"
or "Doctor of Chiropractic, D.C." in all advertising medium, including signs
and letterheads;
(3)
engaging in sexual misconduct with a patient within
the chiropractic/patient relationship;
(4)
exploiting patients through the fraudulent use of
chiropractic services which 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, or expressions which
may reasonably be interpreted as in inappropriately seductive or sexually
demeaning;
(B)
inappropriate sexual comments about and to a
patient or former patient including sexual comments about an individual's
body;
(C)
requesting unnecessary details of sexual history
or sexual likes and dislikes;
(D)
making a request to date;
(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 that is sexual or may be reasonably interpreted as
sexual, 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 or genitals;
(H)
encouraging another to masturbate in the presence
of the licensee;
(I)
masturbation by the licensee when another is
present; or
(J)
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.
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 May
24, 1999.
TRD-9903034
Gary K. Cain, Ed.D.
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: July 4, 1999
For further information, please call: (512) 305-6709
22 TAC §75.7
The Texas Board of Chiropractic Examiners proposes an amendment
to §75.7(a), relating to board fees. The current fee schedule in §75.7(a)
is amended to change the application fee for registering chiropractic radiologic
technologists from a $35 yearly fee to $70 every two years. This change is
being made in connection with a separate rulemaking published in the May 28,
1999, issue of the
Texas Register
and which
proposes amendments to §78.1 and §78.2, changing registration and
continuing education compliance to a biennial basis instead of yearly, beginning
January 1, 2000. For the remainder of 1999, registration, renewal, related
fees and continuing education reporting will remain on an annual basis.
Cindy Palmer, Financial Officer, Texas Board of Chiropractic Examiners,
has determined that for the first five-year period the section as amended
is in effect, there will be no fiscal implications for state or local government
as a result of enforcing or administering the section as amended.
Dr. Cynthia Vaughn, D.C., Chair, Technical Standards Committee, has determined
that for each year of the first five years, the section, as amended in connection
with the proposed changes to §78.1 and §78.2, is in effect, the
public benefit anticipated as a result of enforcing and administering the
section as amended will be greater uniformity and consistency with the Texas
Department of Health's (TDH) registration and continuing education program
for radiological technicians. With the same deadlines and reporting periods
as TDH, it is anticipated that CRT's will be provided a greater choice of
seminars, in number and subject matter, which in turn will provide better
training opportunities which will inure to the benefit of the public. There
are no probable economic costs to persons required to comply with the rule
as proposed. The annual cost of registration will remain the same even though
it will be collected on a biennial basis.
Comments may be submitted to Joyce Kershner, Rules Committee, Texas Board
of Chiropractic Examiners, 333 Guadalupe, Tower III, Suite 825, Austin, Texas
78701.
The amendment is proposed under Texas Civil Statutes, Article
4512b, §§4(c), 4a, which the board interprets as authorizing it
to adopt rules necessary for performance of its duties, the regulation of
the practice of chiropractic, and the enforcement of the act, Texas Civil
Statutes, Article 4512m §2.08(c), which the board interprets as authorizing
it to adopt rules to establish reasonable and necessary fees to produce sufficient
revenue to cover the cost of administering this CRT program, and Article 4512b
§11, which the board interprets as authorizing it to adopt rules to establish
reasonable and necessary fees to produce sufficient revenue to cover the cost
of administering the Chiropractic Act, including this program.
The following are the statutes, articles, or codes affected by the proposed
amendment:
§75.7--Texas Civil Statutes, Articles 4512b, §§4(c), 4a,
8b, 11; 4512m §2.08(c)
§75.7.Fees and Charges for Public Information.
(a)
Current fees required by the board are listed in the following
fee schedule table:
Figure: 22 TAC §75.7(a)
(b)-(c)
(No change.)
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 May
24, 1999.
TRD-9903035
Gary K. Cain, Ed.D.
Executive Director
Texas Board of Chiropractic Examiners
Earliest possible date of adoption: July 4, 1999
For further information, please call: (512) 305-6709