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Texas Performance Review
Realigning Chiropractic Oversight


A System for Prioritizing Complaints


Background

During the past three years, the board has received from 200 to 250 complaints a year, or roughly 20 complaints a month. TBCE tracks these complaints in the order of their receipt, without reference to their relative seriousness or potential for continuing hazards to the public.[45]

Within 48 hours of receipt, the agency sends an acknowledgment letter to the complainant and a notification to the licensee involved. The board's practice is to send the chiropractor two notifications, one by certified letter and another via regular mail to ensure receipt.[46] The enforcement committee receives copies of each complaint as well as the chiropractor's response in advance of its meetings, which are held at least every two months.

Until recently, all cases were considered by the entire committee, regardless of their merit. The board has attempted to speed up the complaint resolution process by allowing the enforcement chair to recommend closure on cases deemed "no violation" or "no jurisdiction."[47] Although the enforcement committee has not compiled any hard statistics on how turnaround time has been reduced because of this new practice, the committee believes that this practice will allow the committee to devote more time to more serious complaints.[48]

Need for prioritization

TBCE recognizes that some complaints represent greater potential threats to the public than others. For example, while most complaints are sent to the enforcement committee chair, who then decides whether the case should be brought before the other committee members for discussion, allegations of sexual misconduct are automatically sent to all enforcement committee members.[49]

TBCE's current efforts to improve its handling of complaints focus more on turnaround time than public protection.[50] Yet prioritizing complaints based on severity is desirable simply because the more serious complaints tend to be harder to investigate and substantiate. Allegations of gross unprofessional conduct, for instance, may involve a single instance of inappropriate action witnessed only by the complainant. Complaints related to advertising violations, by contrast, are easy to substantiate but do not place the public at great risk and usually can be resolved quickly through letters of warning, the mildest sanction that the board can impose.

TBCE staff members said they devote as much as half of their time to minor advertising complaints that might be addressed more efficiently. Often, they said, chiropractors or their clients excerpt chiropractic advertisements from telephone books and anonymously mail them to the board, with the expectation that misstatements or overstatements in the advertisements will be addressed by TBCE. The routine result is a letter to the offending chiropractor and hours of paperwork taking away time and resources from potentially more valuable investigations.

In one instance, a staff member said, two chiropractors seem to take turns filing complaints about each other's advertising. In most cases, the complaints are not substantive, or even legitimate.

Finally, TPR found that the board's complaint system yields numerous complaints that can be dealt with quickly. As Appendix 2 indicates, 75 percent of the board's complaints over the last four years have been concluded with a finding of "no jurisdiction" or "no violation." Many of these complaints could be flagged upon receipt by the enforcement coordinator as not requiring extensive investigation.

Complaint prioritization in other states

Other occupational licensing boards have priority systems that give more attention to complaints putting the public at greater risk. For example, Virginia's Department of Professional and Occupational Regulation has a five-level priority system that categorizes complaints by severity, as carefully detailed in the agency's procedures.[51] In Texas, the State Board of Pharmacy also uses a priority system for complaints.[52]

The Federation of Chiropractic Licensing Boards (FCLB), a national organization of licensing bodies, has
published a useful hierarchy for violations corresponding to the harm posed to the public:

  • Advertising violations pose a lesser threat to the public welfare and may enjoy limited First Amendment free speech protection;
  • The threat posed by commercial misconduct (fraud, deception, or misrepresentation) is more severe and enjoys no constitutional protection;
  • Negligence or incompetence in the practice of chiropractic poses a direct threat to the public welfare and indicates a disregard for the safety and well-being of patients under the doctor's care; and,
  • Professional misconduct poses the greatest threat and should be treated with the firmest sanctions possible.[53]


Recommendations

A. TBCE should establish a priority system allowing the agency to move quickly on complaints representing a significant potential risk to the public.

The board should review its categories of offenses and establish a hierarchy for complaint handling. Examples of high-priority cases should include allegations of sexual misconduct, malpractice, and incompetence. This system would help board staff determine which complaints require special handling and may warrant field investigation.

TBCE could model its priority system on examples used at other occupational licensing agencies or chiropractic boards in other states. TBCE should tailor its system to suit its special needs, based on its historical data concerning the frequency and gravity of different types of complaints. Since the priority system could be installed by merely amending internal policies and procedures, it should be installed relatively quickly.

Complaint turnaround time would remain an important part of agency performance, and TBCE should keep statistics of turnaround time by priority. Higher-priority cases on average are likely to need more time to resolve, but a breakdown of turnaround time by priority should provide a more useful qualitative measure of the agency's enforcement activities.

B. To expedite the disposition of cases that clearly are not violations of the chiropractic act or within the jurisdiction of the board, TBCE should authorize its enforcement coordinator to summarize such complaints and recommend their closure to the enforcement committee.

TBCE staff members have expressed some hesitation about assuming decision-making responsibilities, even though the staffs of many other health licensing boards enjoy this authority. The enforcement coordinator should receive any additional training needed to assume this duty. This change would give the enforcement committee more time to tackle difficult cases.

TBCE should develop a board policy granting the enforcement coordinator greater flexibility in screening complaints, as do several other Texas health boards. For example, the Texas Board of Pharmacy and the Texas Board of Medical Examiners both allow staff members to decide which complaints need further investigation, which can be resolved by the board and which to recommend for immediate closure.

The chiropractic statute specifically requires the board to give every complaint "appropriate consideration." [54] This does not, however, prevent the board from delegating some responsibility for prioritizing complaints to TBCE staff. As a safeguard, enforcement committee members still would have access to all complaint files if they have questions or concerns about staff findings and recommendations.


Fiscal Impact

This recommendation would have no fiscal impact.


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