More Aggressive Approach to Regulation
TBCE has traditionally taken a reactive approach to regulation, simply responding to complaints received. As noted in Exhibit 1, TBCE took disciplinary action in about nine percent (86 out of 960) of the complaints received over the last four years. This figure appears relatively aggressive compared to other Texas licensing boards and chiropractic licensing boards in other states.
However, when the type of disciplinary action taken is examined, TBCE differs markedly from other boards in that more than four-fifths of TBCE's disciplinary actions were letters of warning, the mildest form of action available. Most other licensing boards do not even count warnings as disciplinary actions.
The Federation of Chiropractic Licensing Boards (FCLB), an organization serving as the professional association for state chiropractic licensing boards, tracks significant disciplinary actions such as fines, probations, suspensions, and revocations (Exhibit 4). FCLB does not collect information on warnings since warnings are not public information, and because warnings constitute a threat to impose a disciplinary action rather than the actual imposition of an action. Without warnings in the mix, Texas' use of disciplinary action looks fairly mild compared to that of other states-just 4.6 actions per 1,000 chiropractors over the 1993-96 period, compared to an average of 16.6 per 1,000 in the rest of the country. Once again, more than half of those actions were reprimands, compared to a higher percentage of more serious sanctions taken in other states.
EXHIBIT 4: Disciplinary Actions Per 1,000 Chiropractors* 1993-1996
Type of Action TBCE Other States Reprimands 2.4 (52%) 2.1 (13%) Fines 0.0 ( 0%) 3.0 (18%) Probation 0.8 (17%)** 3.7 (22%) Other Actions 0.8 (17%) 3.4 (20%) Suspensions 0.3 ( 7%) 2.8 (17%) Revocations 0.3 ( 7%) 1.6 (10%) Total 4.6 (100%) 16.6 (100%)
* These figures do not include warnings as the FCLB does not gather this information.
** TBCE's agreed orders are counted as "probation" since they contain elements of probationary status for the licensee.
SOURCE: Federation of Chiropractic Licensing Boards and Texas Board of Chiropractic Examiners.
TBCE told TPR that the board generally does not receive the types of complaints that warrant stronger sanctions. But, unlike many other states, Texas' system is based entirely on response to complaints received. TBCE does not initiate complaints on its own even when the board is made aware of a violation. The board is fully authorized by law to do so, but believes that it lacks the resources to handle the complaints it already receives. Recently, the board directed the staff to conduct a limited number of site visits of chiropractic offices. However, it is unclear how violations uncovered in this process will be pursued since the board has no procedure for initiating a complaint on its own.
Other than its complaint process, TBCE's primary means of ensuring compliance is a mandatory annual continuing education requirement. This two-hour requirement is in addition to the 14 hours of continuing education Texas chiropractors are required to obtain annually. TBCE offers the two-hour sessions five times a year in conjunction with other continuing education programs. At these sessions, TBCE presents information on changes in the law and rules, enforcement activities by the board and special items of interest to the profession. Several licensees told TPR, however, that these sessions often serve no clear purpose and that the information could be provided just as easily through a newsletter.
Other states' chiropractic boards and other Texas licensing boards use a much broader variety of methods to promote and monitor compliance among licensees. Such boards actively seek violations and take action to resolve them.
Some chiropractic licensing boards in other states, for instance, require chiropractors to report any criminal convictions, malpractice claims, or disciplinary actions received in other states on their annual license renewal form. Inaccurate reporting of this information can subject a licensee to serious disciplinary action. TBCE requires similar information when initially licensing a chiropractor, but not on renewal forms. Yet new practitioners constitute only a fraction of the total licensee population; such data should be requested routinely from current practitioners as well. This simple reporting requirement can help identify potentially problematic licensees.
The Federation of Chiropractic Licensing Boards maintains a Board Action Databank that compiles information on disciplinary actions taken nationwide by state licensing boards. It allows for individual inquiries and offers a current list of almost 3,000 actions by 49 state boards against 1,650 chiropractors. The database is a cost-effective way to determine whether license applicants have a history of disciplinary actions in other states. Texas only recently started reporting to and using FCLB data.
Another means of protecting the public involves requiring licensees to carry adequate malpractice insurance. The Washington State Department of Health, for example, requires such coverage for all health practitioners who work directly with patients and do not perform their services under the supervision of another health practitioner. Chiropractors certainly fall within this category. Texas has no similar requirement for chiropractors.
Many states also stipulate that malpractice awards and settlements be reported to their licensing boards, a requirement that helps them identify substandard practitioners. In Texas, physicians' insurers are required to report any claim letter or complaint to the Texas State Board of Medical Examiners, which reviews its information concerning any physician with three or more malpractice claims within five years. No such requirement exists for Texas chiropractors.
Increasing consumer awareness
TBCE publishes a consumer's guide brochure that explains how to file complaints with the board; the guide, however, generally is provided only after a complaint has been filed. The New York State Board for Chiropractic has a similar consumer guide that must be displayed in licensees' waiting rooms.
Newsletters reporting disciplinary actions
Many professional licensing boards publish a list of their disciplinary actions in newsletters circulated to licensees. Such information helps increase licensees' awareness of unacceptable practices or conduct that may result in sanctions; it also serves as a deterrent by demonstrating that the board actively enforces the law.
In Texas, the Texas State Board of Pharmacy and Texas State Board of Medical Examiners both publish newsletters containing disciplinary actions. Numerous licensing boards in other states also employ this form of public sanction. TBCE recently issued a newsletter, the first one ever by the board. However, the newsletter did not contain information on disciplinary actions taken by the board against its licensees.
Need for training
TPR also found that enforcement committee members receive little training in their duties. Two of the three members, including the chair, have served on the board for about a year. While TPR found that the committee approaches its responsibility vigorously, the lack of training may hinder its effectiveness.
To its credit, the board has assembled a comprehensive manual for new member orientation that details a board member's general responsibilities and can serve as a useful reference throughout a member's tenure. However, the lack of any further formal training, especially for the specialized skills that may be needed in the enforcement committee, for example, can reduce a member's ability to contribute effectively to board activities.
The Council on Licensure, Enforcement and Regulation (CLEAR) provides training in enforcement and investigative techniques for the members of occupational licensing boards; this could be extremely useful in helping enforcement committee members perform their duties and in evaluating the performance of board staff in this area.
A. TBCE should develop a procedure for initiating its own complaints against a chiropractor.
The board should never be in the position of possessing information about a violation without acting to address it. Board-initiated complaints would signal a shift from a strictly reactive approach to a more aggressive and effective enforcement process. It also should complement the board's recent commitment to site visits by providing a process to handle any problems these visits uncover.
B. TBCE should implement a process to check the federal registry of disciplinary actions regularly to help ensure that incompetent practitioners are not licensed in Texas.
The board should take full advantage of FCLB's database by checking license applicants for problems in other states. TBCE also should consider checking records for all its licensees since many practitioners are licensed in several states and may be practicing in Texas and other states at the same time. The board's recent computerization of its offices should facilitate easy access to this database.
C. TBCE should require licensees to report enforcement information on annual license renewal forms.
Models for capturing this information on reporting forms exist both in TBCE's initial license application and in forms used by other Texas health licensing agencies. TBCE should modify its renewal forms to include appropriate questions related to enforcement issues. While the revised renewal forms may require some additional review time, the board recently moved to adopt a staggered system for license renewal. This should help spread the process out over the entire year. Whenever TBCE receives information regarding a potential violation, it should ensure that this information is entered into its system for initiating a complaint. For example, applications that contain false statements, indicate a default on a student loan, or are incomplete should be flagged and sent to the enforcement coordinator for review.
D. TBCE should require chiropractors to report on their malpractice liability insurance.
This information would provide the board with baseline information for determining whether uninsured chiropractors represent any serious potential harm to the Texas public. TPR is not recommending legislation requiring malpractice liability insurance for chiropractors, as such action is beyond the scope of this report.
E. State law should require insurers to report information on malpractice claims against licensed chiropractors to TBCE. TBCE should be required to initiate a complaint to review information on any chiropractor with three or more claims within five years.
These changes should be made consistent with similar requirements in place for Texas physicians under the Medical Practice Act. Insurers should not find this overly burdensome on insurers, given a total Texas population of about 3,500 chiropractors, since they already report this information on more than 44,000 physicians in Texas.
F. TBCE should require licensees to display the board's "Consumer Guide" in their office waiting rooms.
This pamphlet provides an excellent description of the complaint process and should be made available on a wider basis. The board also should use its site visits to ensure that the required consumer information sign, with TBCE's toll-free number, is posted in each chiropractor's office.
G. TBCE should use its newsletter to report enforcement actions.
Numerous models for such complaint reports exist in the newsletters of other Texas licensing boards and other states' chiropractic boards. This newsletter could be prepared at minimal expense and could easily be sent with renewal notices. In addition, the board should consider making this information available over the Internet.
Although the TBCE newsletter's main audience would be chiropractors, publishing enforcement actions would still serve as a public sanction, especially among the chiropractic community. To the extent that the general public may review these actions in the publication or via other sources such as the Internet, this practice could be helpful to members of the public, too.
H. TBCE should make attendance at its board-sponsored continuing education sessions voluntary rather than mandatory. Licensees still would be responsible for completing 16 hours of continuing education each year.
With the development of a regular newsletter, the need for mandatory attendance at two hours of board-sponsored continuing education each year will be less compelling. Several licensees complain that the requirement is overly burdensome and takes time away from other, more useful continuing education courses. Making attendance at board-sponsored continuing education voluntary would allow chiropractors the choice of attending other courses to fulfill the 16-hour requirement.
I. TBCE should provide training opportunities
for board members, particularly enforcement committee members, in complaint handling and adjudication.
This training should engender a broader understanding of the board member's role in the enforcement process. This training would be particularly useful since the enforcement committee members have only served together for about a year.
Training should become an ongoing activity for TBCE staff and board members. TBCE could identify training needs by consulting the Attorney General's Office. TBCE could also seek assistance from the Health Professions Council, a group created by the 1993 legislature to coordinate the activities of health licensing boards. Possible areas of training could include open meetings/ documentation, confidentiality, conflicts of interest, and alternative dispute resolution.
Some of these changes may require a shifting of board resources and staff but this could be accomplished within existing resources. Prioritization of complaints, addressed in a later recommendation, would help the board better allocate its resources to the areas of greatest public risk.
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