Cynthia Tays is president and owner of Austin Chiropractic Associates P.A. She is a member of the American Chiropractic Association (ACA), ACA Sports Council and ACA Physical Therapy Council. She is also a member of the Texas Chiropractic Association and American College of Chiropractic Orthopedists, and is the chiropractic consultant for Ballet Austin and Tapestry Dance Company. Tays received a bachelor’s degree from St. Cloud State University and a doctorate of chiropractic degree from Texas Chiropractic College.

Karen Campion of Bryan is president and owner of Campion Chiropractic Clinic. She is a member of the American and Texas Chiropractic associations, American Board of Chiropractic Sports Physicians, Texas Chiropractic College Alumni Association, Texas Society of Radiologic Technologists, and Bryan/College Station Chamber of Commerce. She is also team chiropractor for Brazos Valley Club Volleyball and A&M Consolidated High School Athletics, and a past team chiropractor for the Texas A&M University Athletic Department. Campion received a doctorate of chiropractic degree from Texas Chiropractic College, is a certified chiropractic sports physician, and a fellow of the International Academy of Medical Acupuncture.

Tim McCullough of Friendswood is director of Biotech Chiropractic Clinic Inc. He is a member of the American and Texas Chiropractic associations, past chair of the American Academy of Chiropractic Physicians, past president of the American Chiropractic Association Council on Diagnosis and Internal Disorders, and past director of the Texas Chiropractic Association District 11. McCullough served in the U.S. Army. He received a bachelor’s degree from Louisiana State University, a master’s degree in education from the University of Louisiana at Lafayette, and a doctorate of chiropractic degree from Texas Chiropractic College, and is a board certified chiropractic internist and clinical nutritionist.

Kenya S. Woodruff of Dallas is deputy general counsel for the Dallas County Hospital District. She is past chair of the Dallas Bar Association Health Law Section, and a member of the State Bar of Texas, American Health Lawyers Association, and J.L. Turner Legal Association. She is also co-chair of the Aids Arms Inc. Community Advisory Committee and a volunteer teacher for Eirene Christian Fellowship Children’s Ministry. Woodruff received a bachelor’s degree from Emory University and a law degree from the Duke University School of Law. She is being reappointed.

WHAT NOT TO DO:  answer the Board without having an attorney review your response.  It is so sad when a health care professional receives a disciplinary order due to an incorrect answer to a renewal question; so often, these violations are easy to avoid.  Sometimes a health care professional answers a renewal question in a manner which causes Board action on the answer but not on the original criminal issue.  In addition, you need someone on your side advising you regarding what actions to expect from the Board and making sure you do not agree to a disciplinary action which is not warranted.  DO NOT rely upon advice from your criminal attorney, your family, your co-workers, your boss etc.  This is not a time to risk talking to inexperienced people.  Some Board do not take action on minor criminal incidents as long as you do not try to hide the criminal incident from the Board.  For example, the Texas Board of Nursing will typically not take action on a one time shoplifting case, but if you do not disclose the criminal incident to the Board you will be deemed as being deceptive and the Board is more likely to require some type of remediation (once again there are various Board responses and which is used depends on the information provided to the Board).

WHAT TO DO:  Obtain the criminal court records and contact an administrative lawyer with experience before that particular Board.  When you call the lawyer, is the lawyer able to answer your questions or do they say they have to do research?  If an attorney practices frequently before a Board, the lawyer will know the types of questions asked by the Board and what is required to be disclosed.  This type of legal advice is not usually expensive as long as the case does not progress to an investigation before the Board and an attorney can give you estimated costs when you speak to the lawyer.

I know this response looks like an advertisement for hiring lawyers, but seeking appropriate legal advice is the best action to take to protect your license and the risk of possible disciplinary action is too great not to at least speak to a lawyer.

When I read the article and the editorial I knew that many people will cheer the limiting of licenses to those with criminal histories, but I think they tend to focus on horrific crimes and don’t realize the impact made on people who commit crimes due to a lack of knowledge or because they are young or with the best of intentions.  If you do not speak to such people daily, then you cannot know the heartache and problems for the licensee or the ultimate ramifications for the public.  What about a licensee who is wrongly accused (it happens more than you think:  bad investigations, witness lies, evidence corrupted) and then convicted (Oh, and it does not matter the licensee received deferred adjudication since some regulatory boards consider deferred adjudications as convictions.).  A situation I have seen over and over is during a divorce or custody hearing, one of the spouses accuses the other of some crime and then lie or plant evidence; the other spouse is sure the law will find on their side since they are obviously innocent, but the legal system does not always work that way, so the innocent ex-spouse is now facing an investigation by the regulatory board.  The criminal incident has nothing to do with the licensee’s profession, but the licensee is investigated then disciplined and  loses their job and is now on public assistance because no one wants to hire them.  It happens again and again, professionals attempting to find work outside of their profession will not be hired because the potential employers think they will leave too soon, are too over-qualified, will challenge them for their position etc and a highly educated professional remains unemployed.

Mr. Dexheimer discusses so many cases where the state’s result does not appear to be justified; that there is no nexus between the criminal charge and the practice of that particular profession.   One of the examples involves pharmacist Emmanuel Kanu who lost his pharmacist license, not because of patient care issues or as a result of actions which could harm the people of Texas (potential patients/clients), but because he did not complete the proper documentation when he sent donated medications to a clinic in a third world county.  Mr. Kanu, a pharmacist with no patient care issues for 17 years, is now removed from being able to care for the Texas public for 10 years; how is this outcome reasonable or just? Would one consider Mr. Kanu to be a criminal?  Is his failure to submit the proper documentation in order to send these medications so heinous that we need to waste tax payer funds to convict him and then remove him from the professional workforce?

I also fear the public will ignore the message of this article (and the subsequent editorial) because it deals with “ex-cons” or those with criminal incidents when the message is so much more–the regulatory agencies are vested with great power and there can be an unfair and unjust tendency to abuse and overuse that power; once again, it depends on the individuals within the agency–there are some excellent staff members who warrant great respect, but there are also some who are not protecting the public, they are just punishing.

The problem our attorneys face is most licensees cannot afford to fight the regulatory boards and they are faced with accepting discipline which is not warranted or in some cases, even legal.  But, it is not clear sailing for those licensees that do choose to fight because as seen in Mr. Dexheimer’s article,  like Mr. Kanu, the licensee pays the money to fight the regulatory board, the licensee wins at the State Office of Administrative Hearings (SOAH) only to have the case overturned by the regulatory board.  This is such a wide spread problem that our attorneys testified during the last Legislative session urging Texas lawmakers to support a bill which would make SOAH decisions final and if either party wanted to appeal at district court, they could do so.  Making SOAH decisions final avoids the “second chance at the licensee” actions which occur now when boards overturn SOAH Judge recommendations.  Making SOAH decisions final levels the process and makes it fair for all involved.

These are problems which should be addressed and the regulatory system, if it is going to be vested with so much independent power, should be fair and just and able to stand up to scrutiny.  Ask yourself, who is on the side of the licensee?  Who is making sure there are enough professionals to provide care to the people of Texas?  Is the system driving good professionals out of practice or turning them into cynics who no longer see the benefit in caring?  The public, the boards, and licensees need to be aware of all sides of a situation; not jump to conclusions; and consider the ultimate impact on all.

 For FY 2012 and 2013, the Governor, the Lt. Governor, and the Speaker of House told agencies to offer budget 10% less than their FY 2011 budgets.  This will mean lost of more staff, slower time to process new licenses and slower time to investigate cases.  The Texas Medical Board reports it believes it will generate less income for the state for due to its budget cuts.  The Board did not explain how this would occur. 

 It is possible, the further cuts will occur.  It is even more likely professional renewal fees will increase as will new licensure application fees.  The reason these things will occur is the projected budget deficit is 23 billion dollars.  Even if the legislature ends all state programs other than education, prisons, roads, law enforcement, and Medicaid, there will still be deficit; therefore, it seems logical to assume more cuts and larges fees are a matter of when, and not if.

NEW §80.13, relating to prepaid treatment plans, to establish guidelines for licensees offering patients prepaid treatment plans. The proposed new rule will protect the public by ensuring patients are fully aware of what is involved in the prepaid treatment plan and by allowing patients to cancel the plan with no risk of penalty, overcharging, or charging for services not rendered.  The plan must be cancellable by either party at any time for any reason without penalty of any kind to the patient.  There must be  a defined number of visits in the patient record.

Proposed Rules of Practice – Schedule of Sanctions

Amendment to §75.11, relating to the schedule of sanctions. The Board has

Proposed  new rule, §80.13, which outlines requirements for the use of prepaid treatment plans by licensees. This proposed amendment to §75.11 designates a violation of new §80.13 as a Category I offense and sets the maximum sanction in accordance with that designation.

CATEGORY I. 1^st Offense: $1000* 2^nd Offense: $1000* 3^rd Offense: $1000* *and/or revocation

 Proposed Rules of Practice – Scope of Practice

Amendment to §75.17, relating to scope of practice

1)Recent litigation brought by the Texas Medical Association, a district court judge identified concerns regarding subsections (d)(1)(A) and (B), relating to analysis, diagnosis, and other opinions.

2) the Board has recognized the need to define additional terms in order to improve the clarity of the rule.

3) the Board is clarifying that cosmetic treatments are not within the scope of practice.

4) the Board is replacing some terms of art with plain language descriptions and making other minor editorial corrections to the rule.

Adding definitions for biomechanics, cosmetic treatment, and subluxation in subsection (b). Additionally, the Board has proposed changing the definition for subluxation complex in subsection (b) to simplify the language and make the definition more understandable. However, the Board considered an alternative definition for subluxation complex, different from that in the proposed amendment published here. The Board would like comments on this alternative definition for subluxation complex: “a subluxation which incorporates the interaction of functional and/or pathological changes in nerve, muscle, ligamentous, osseous, vascular, and connective tissue.” Additionally, the Board has proposed changes and additions to subsection (d) to provide clarity on what analysis, diagnosis, and other opinion may be rendered by a chiropractic licensee, in response to a district court judge’s ruling in recent litigation involving the Board.

In subsection (e)(3) the Board has added cosmetic treatments to treatment procedures and services that are outside the scope of practice for chiropractors in Texas. This addition is in response to the Board’s Enforcement Committee noticing an increase in the number of complaints involving licensees advertising and/or performing cosmetic treatments.

 Rule 75.25  Impaired licensees and applicants—Broadens the range of records and criminal offenses the Board can use in order to determine if  probable cause exists for requiring a possibly impaired licensee or applicant to undergo a mental and/or physical examination.

 Rule 80.3  Amendment to  clarify fees that may be charged by a licensee for certifying records that are released to patients or to third parties.

 Rule §71.19, concerning Criminal History Evaluation Letters, without changes to the proposed text as published in the July 9, 2010, issue of the Texas Register (35 TexReg 6014) and will not be republished. The new rule is adopted to comply with the requirements of House Bill 963, allowing persons who are enrolled in chiropractic school or who are considering enrolling in a chiropractic school to request a letter from the Board concerning the possible effect of the person’s criminal history on the person’s ability to obtain a license after graduation.

 Rule 75.7 The amendment sets a fee of $150 for the request of a criminal history evaluation letter, as authorized by House Bill 963.

Proposed Rules of Practice – Scope of Practice The Texas Board of Chiropractic Examiners (Board) proposes an amendment to §75.17(c)(3), to add a new subparagraph (C) this amendment with an increased requirement that, in order to administer this test, a licensee must have received a diplomate in chiropractic neurology and successfully completed an additional 150-hour post-graduate specialty course in vestibular rehabilitation.

Adopted Rules Applications and Applicants – Approved Chiropractic Schools and Colleges The Texas Board of Chiropractic Examiners (Board) adopts an amendment to §71.5,

The adopted amendment clarifies that bona fide reputable chiropractic schools are those accredited not only by the Council on Chiropractic Education (CCE), but also by other chiropractic educational accrediting bodies that are members in good standing with the Councils on Chiropractic Education International (CCEI). CCE is the American component of CCEI, so American schools currently considered to be “bona fide reputable chiropractic schools” will not be affected by this amendment. The Board has determined applicants from foreign chiropractic schools accredited by CCEI member accrediting bodies should be allowed to be licensed if the applicants meet all other licensing criteria in the state of Texas. Section 201.302 states that an applicant must be either a graduate or a final semester student of a bona fide reputable doctor of chiropractic degree program. Section 201.303 sets forth parameters for determining what qualifies as a bona fide reputable doctor of chiropractic degree program 35 TexReg 5557-58

 Adopted Rules Licenses and Renewals – Renewal of License The Texas Board of Chiropractic Examiners (Board) adopts an amendment to §73.2,

§73.2 The adopted amendment adds subsection (j), which deals with information required to be furnished by licensees to the Board pursuant to license renewal applications. language MOVED FROM 80.3(G)

 Adopted Rules of Practice – Spinal Screening The Texas Board of Chiropractic Examiners (Board) adopts new §75.23, concerning spinal screening, to set forth the minimal standards for conducting out-of-facility spinal screenings, such as at a health fair or other community event. The new rule provides standards for the training required of persons conducting out-of-facility spinal screenings and for the information that must be provided to the public at such screenings. School spinal screenings would still need to be conducted in compliance with DSHS rules and guidelines.

 Adopted Rules of Practice – Impaired Licensees and Applicants Texas Board of Chiropractic Examiners (Board) adopt new §75.25, establishes criteria for when the Board can require an impaired licensee or applicant to undergo mental and/or physical examination. Previously, this information was contained in §80.3, which deals with requests for information and records from licensees. The Board determined that information regarding impaired licensees and applicants would be more appropriate in new §75.25.

 Adopted Rules Formal SOAH Proceedings –amendment to §76.3, concerning Commencement of Enforcement Proceedings corrects an incorrect citation to the Administrative Procedure Act (APA). Previously, subsection (b) cited §2001.052 of the APA in declaring that a respondent is entitled to reasonable notice of a hearing of not less than then days prior to the hearing. However, the correct reference to the APA should be §2001.051, as reflected in this adopted amendment.

  Adopted Rules Formal SOAH Proceedings – Default Judgments amendment to §76.11, concerning Default Judgments, changes the font size of the required default judgment disclosure in notices of hearing. Previously, subsection (b) read that the default judgment disclosure in a notice of hearing was required to be 10-point font Therefore, the adopted amendment changes the required font size for a default judgment disclosure in a notice of hearing to 12-point font.

 Adopted Rules Professional Conduct – Request for Information and Records from Licensees amendment to §80.3, the adopted amendment removes subsections (g) and (h). Previously, §80.3(g) dealt with licensees providing information to the Board about answers to questions on an application for license renewal. The Board determined that §73.2(j) is a more appropriate place for this information. Additionally, §80.3(h) dealt with impaired licensees.