Part III. Texas Board of Chiropractic Examiners

Chapter 75. Rules of Practice

22 TAC §75.1

The Texas Board of Chiropractic Examiners adopts amendments to §75.1, relating to grossly unprofessional conduct, without changes to the proposed text as published in the June 4, 1999, issue of the Texas Register (24 TexReg 4140). The text of the proposed amendments will not be republished. Section 75.1 currently defines grossly unprofessional conduct to include sexual misconduct. Amendments to §75.1 are made for the purpose of defining this term and providing specific examples of 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 defined as sexual misconduct under §75.1. The lists of prohibited conduct enumerated in the amendments are not exclusive. 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 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 amendments expressly exclude consent, conduct off-premises or outside of treatment sessions as defenses. It is the board's opinion while such circumstances may serve as mitigation in deciding the appropriate sanction for such conduct in certain situations, they do not excuse sexual misconduct with a patient. Research in the area of sexual misconduct by healthcare providers have viewed the doctor patient relationship as a fiduciary relationship. The doctor holds a superior-power position. As a result, it is the responsibility of the doctor, included a chiropractor, to maintain a professional relationship with a patient and to avoid any conduct that could harm a patient or undermine the trust a patient bestows on a professional doctor of chiropractic. See generally, "Sexual Conduct within the Physician-Patient Relationship: A Statutory Framework for Disciplining This Breach of Fiduciary Duty," by Catherine S. Leffler, Widener Law Symposium Journal, Spring, 1996, 1-SPG Widner L. Symp. J. 501 (given the physician's position of power in the relationship, the physician bears complete responsibility for enforcing appropriate boundaries and for preventing the potentially devastating impact of physician-patient sexual contact, at 510); "Sexual Misconduct: Ethical, Clinical and Legal Ramifications and the Chiropractic Profession," by Michael F. Stahl, D.C. and Stephen M. Foreman, D.C., published by NCMIC Insurance Co., Des Moines, Iowa (1997)(copies of these articles are on file at the offices of the TBCE); Tex. Penal Code, §22.011 (consent is no defense to a charge of sexual assault of a patient or former patient by a health care services provider, including a chiropractor). The accepted standard of practice requires that healthcare professionals, including chiropractors, avoid personal, intimate contact with their patients. The amendments are modeled after rules of other occupational licensing agencies, including the board of examiners of psychologists (22 TAC §465.33) and the board of examiners of professional counselors (22 TAC §681.33). The section as amended will provide 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. The definitions will also provide guidance to the board's enforcement committee, staff and the full board in carrying out its disciplinary responsibilities.

No comments were received concerning the proposed amendments.

The amendments are adopted 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, and §14a which the board interprets as authorizing it to discipline licensees for grossly unprofessional conduct, gross inefficient practice of chiropractic or lack of proper diligence.

The following are the statutes, articles, or codes affected by the amendments:

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 19, 1999.

TRD-9904333

Gary K. Cain, Ed. D.

Executive Director

Texas Board of Chiropractic Examiners

Effective date: August 8, 1999

Proposal publication date: June 4, 1999

For further information, please call: (512) 305-6709

22 TAC §75.7

The Texas Board of Chiropractic Examiners adopts an amendment to §75.7, relating to board fees, without changes to the proposed text as published in the June 4, 1999, issue of the Texas Register (24 TexReg 4141). The text of the proposed rule will not be republished. 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 this issue of the Texas Register and which adopted amendments to §78.1, changing registration and continuing education compliance to a biennial basis instead of yearly, beginning January 1, 2000. The annual cost of registration under the amendments remains the same. For the remainder of 1999, registration, renewal, related fees and continuing education reporting will continue on an annual basis. The amendments provide 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 CRTs 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.

No comments were received concerning the proposed amendment.

The amendment is adopted 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 amendment:

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 19, 1999.

TRD-9904334

Gary K. Cain, Ed. D.

Executive Director

Texas Board of Chiropractic Examiners

Effective date: August 8, 1999

Proposal publication date: June 4, 1999

For further information, please call: (512) 305-6709

22 TAC §78.1

The Texas Board of Chiropractic Examiners adopts amendments to §78.1, regarding Registration of Chiropractic Radiologic Technologists (CRTs), without changes to the proposed text as published in the May 28, 1999, issue of the Texas Register (24 TexReg 3975). The text of the proposed amendments will not be republished. At present, §78.1 requires CRTs to renew annually their registration with the board. As part of the renewal, a CRT must provide proof of six hours of continuing education. Beginning January 1, 2000, with these amendments the board is changing the renewal period from an annual basis to an every two year or biennial basis, with a continuing education requirement of 12 hours every two years. The annual cost of registration under the amendments remains the same. For the remainder of 1999, registration, renewal, related fees and continuing education reporting will continue on an annual basis. The amendments provide 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 CRTs 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.

No comments were received concerning the proposed amendments.

The amendments are adopted under 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, and §14b and Texas Civil Statutes, Article 4512m, §2.08(c), which the board interprets as authorizing it to adopt rules that establish a registration and continuing education program for CRTs in the use of x-ray in conformity with state law and TDH rules and to implement state law relating to radiologic training for employees of a chiropractor.

The effective date of the amendments is January 1, 2000. The amendments apply to the 2000 registration year for CRTs. The board will accept registration and renewal forms under the amendment for the year 2000, beginning 20 days after notice of this rule is filed in the offices of the secretary of state.

The following are the statutes, article, or codes affected by the amendments:

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 19, 1999.

TRD-9904335

Gary K. Cain, Ed. D.

Executive Director

Texas Board of Chiropractic Examiners

Effective date: August 8, 1999

Proposal publication date: May 28, 1999

For further information, please call: (512) 305-6709

Chapter 273. General Rules

22 TAC §273.9

The Texas Optometry Board adopts amendment to §273.9, without changes to the proposed text as published in the May 7, 1999, issue of the Texas Register (24 TexReg 3442).

The amendment to §273.9 is required in order to inform licensees that providing public interest information to patients, by displaying at every location where optometric services are provided information for the purposes of filing complaints, including the board's name, address and telephone number, is required under Texas Optometry Act, Texas Civil Statutes, Article 4552 §2.17.

No comments were received.

The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, §2.17 and §2.14. The Texas Optometry Board interprets §2.17 to require public interest information be provided to the general public. The Board interprets §2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed amendment.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 12, 1999.

TRD-9904203

Lois Ewald

Executive Director

Texas Optometry Board

Effective date: August 1, 1999

Proposal publication date: May 7, 1999

For further information, please call: (512) 305-8502

22 TAC §279.13

The Texas Optometry Board adopts an amendment to §279.13, with changes to the proposed text as published in the May 7, 1999, issue of the Texas Register (24 TexReg 3443). The change is required to remove the word "at" which was redundant in the second sentence of the rule. The change made is not substantive.

Rule 279.13 is required in order to inform licensees of the requirement of follow-up care to patients when examinations are performed in a nursing home or other abode to confined patients, at an industrial site, or at a school when requested by the school administration.

No comments were received.

The amended section is adopted under the provisions of Texas Civil Statutes, Article 4552, § 5.04 and § 2.14. The Texas Optometry Board interprets § 5.04 as authorizing the practice of optometry away from the principal office of the examining doctor in certain instances. The Board interprets § 2.14 as authorizing the Board to adopt substantive and procedural rules for the regulation of the profession of optometry. No other code, statute or article is affected by this proposed amendment.

§279.13.Board Interpretation Number Tirteen.

The Texas Optometry Act was enacted in part to safeguard the visual welfare of the public and the optometrist-patient relationship and to fix professional responsibility with respect to the patient. In order to comply with these objectives and to assure patients will have adequate follow-up care, licensed optometrists or therapeutic optometrists who practice optometry or therapeutic optometry, including the examination and prescribing or supplying of lenses to patients, at:

(1)

a nursing home or other abode to patients confined therein,

(2)

an industrial site, when requested to do so, or

(3)

a school site when requested to do so by the school administration, must have an office location or place of practice within 100 miles of such examination site, or, in the alternative must have made arrangements, confirmed in writing prior to offering or providing services, for continued care with a qualified eye health professional with an office location or place of practice within 100 miles of such examination site. Failure to comply with this rule shall be deemed as practicing from house-to-house and the improper solicitation of patients in violation of the Act, § 5.04(5). In addition, the optometrist must comply with the requirements of § 5.02 to maintain current information regarding practice locations with the board office.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 12, 1999.

TRD-9904202

Lois Ewald

Executive Director

Texas Optometry Board

Effective date: August 1, 1999

Proposal publication date: May 7, 1999

For further information, please call: (512) 305-8502