Chiropractic Regulations & Complaints: A Conversation with the Texas Board of Chiropractic Examiners

Transcript

Speaker 1: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney. Welcome back to Know your Regulator, the podcast that inspires you to engage. I am your host, simone Murphy, and co-hosting with me today is MJ Hooper. Hey, mj, hey, ms Simone. In our last episode, we focused on licensing with the Texas Board of Chiropractic Examiners, or TBCE. We learned what it takes to obtain and renew your license, but what does it take to maintain your license? We have General Counsel Joseph McLaughlin with us today. Joseph, as General Counsel and former Director of Enforcement for TBCE, can you tell us some of the things that can trigger an investigation?

Speaker 2: 1:07

investigations report. Our three most common complaints are billing violations, standard of care violations and patient records violations. Now, each of these three broad categories includes multiple different types of violations. Billing violations can include insurance fraud, charging clearly excessive amounts, billing for services not rendered or just submitting a bill for treatment that the provider should reasonably know is improper or unreasonable or medically unnecessary. Standard of care violations really kind of run the gamut, but they ultimately boiled down to the same issue, and for our agency that would be that the chiropractor in question failed to meet the standard of care that is expected of a doctor of average skill and experience. So this is typically where you’re going to see allegations of injuries to a patient during treatment, failures to properly evaluate patients or just ineffective or non-therapeutic treatment. And then, finally, patient record violations are typically going to fall into one of two categories it’s either going to be that the doctor failed to properly document a doctor-patient encounter, or that they’re failing to provide records after a proper request from a patient or somebody else that has the authority to make that request.

Speaker 1: 2:28

Interesting and, joe, would you say, most of the complaints are filed by other patients or staff or other professionals.

Speaker 2: 2:38

Most of the complaints we receive are going to be filed by patients. We are what you’ll sometimes hear referred to as a complaint-driven agency. So what that means is that really we’re only going to be looking into a doctor or taking action against someone because we received a complaint. We’re not the type of agency that goes out there and is kind of hunting for stuff. We don’t do random inspections on chiropractic clinics or facilities. We can do inspections, but those have to be tied to some complaint that we’ve already received and the doctor has to have notice of that complaint.

Speaker 2: 3:22

So the one exception to that, where you are going to see complaints from somebody besides the patient, is typically going to be those patient records complaints. A lot of chiropractors treat auto accident injury victims and so a lot of times that patient’s attorney is going to be requesting the records on their behalf. Sometimes disputes will arise between the chiropractor and the attorney and so sometimes the attorney will be filing that complaint, and I guess actually one other exception I would say is we’ll get advertising complaints and sometimes those are actually filed by other chiropractors or just some person who sees the advertisement, especially if it’s like a scope of practice issue, which is kind of a big hot button topic for chiropractors in Texas kind of a big hot button topic for chiropractors in Texas. You’ll see, like I said, other chiropractors are just random people who saw the advertisement and see something that they think is outside of scope or something that’s wrong or misleading and they’ll file the complaint.

Speaker 1: 4:15

Interesting. Yeah, that is interesting and really, again, really good information to know, so that those chiropractors can have their heads, you know, on a swivel and kind of be very mindful about the way that they practice and especially keeping the records, keeping those dogs in a row and making sure that they’re organized. Can you walk us through a typical complaint process and tell us kind of what a license holder may expect if they do receive a complaint against their license?

Speaker 2: 4:47

Sure. So our doctors will always be notified of a complaint by a letter that they’re going to receive in the mail. That kind of shows the importance right there of keeping your contact information up to date with us, because if we have an old, out-of-date mailing address on file, you’re not going to get the notice of complaint and then you’re not going to be able to respond, which means you can’t defend yourself and potentially get the complaint dismissed. So that’s critical. We always mail two copies of the notice of complaint. We send one by regular mail and one by certified mail. We do not provide the doctor a copy of the complaint or directly identify the person who filed the complaint, but we do summarize the allegations and list the specific statutes or rules that we think might have been violated. So the first step for us when we receive a complaint is the investigator is going to analyze it, maybe ask some follow up questions of the person who filed the complaint, and then they’re going to draft that notice of complaint letter. In the notice of complaint we will request a written response to the allegations, as well as any relevant patient records or other documents that we need. If we’re talking about an advertising issue, we might ask for a copy of the advertisement or something along those lines. If you have malpractice insurance for all the practitioners that are out there listening, this is where you would contact your carrier so they can assign you an attorney to help defend you At this point. This is where the investigator might need to, you know, interview the chiropractor or any other witnesses, and they also might need to request a standard of care review report. So you know, earlier I mentioned that standard of care complaints are, you know, a big part of our complaint load, and so we have actually an in-house dedicated expert reviewer who’s been licensed as a chiropractor with an impeccable record for a long time. That is who would prepare that report, you know, after reviewing records, making sure that the chiropractor actually met the standard of care, and then, once the investigation is completed, the investigator’s report is going to be reviewed by the TBCE’s Enforcement Committee. So that’s, you know, our board of examiners is nine members, and three of them are the enforcement committee, and the enforcement committee are the ones that make the initial determination of whether there’s been any violations that have occurred, and then they also recommend a penalty, and so at this stage, the enforcement committee might choose to dismiss the case. The case might have been dismissed at some point in the investigative process for various reasons, but if the enforcement committee does find a violation, then it will be assigned to legal for some sort of resolution, which in this case is me. So you know legal resolutions.

Speaker 2: 7:34

There’s a wide variety of potential outcomes. It might be as simple as a letter of warning or a letter of education. These would be, you know, privateands, essentially that would not go on a doctor’s record. We also utilize what we call non-reportable administrative citations. You can kind of think of these like a speeding ticket. You would have to pay us a fine. These can only be used for violations that don’t really involve patient care in any way, and so those don’t need to be reported to national databases. And so we basically just do a private fine for those cases.

Speaker 2: 8:10

But if you’re talking about something that does involve patient care and is going to go on the doctor’s permanent record, then that has to be resolved using some type of a formal board order. Disciplinary orders can be agreed to between the parties. So you might’ve heard of something called an agreed order or an agreed final board order. That’s what that is. It’s just basically a. That’s like a settlement agreement in a civil suit or maybe like a plea bargain in a criminal case.

Speaker 2: 8:38

But if the parties can’t reach an agreement, then you have to have an administrative hearing, and so in Texas that’s going to be with a government agency called the State Office of Administrative Hearings, and so an administrative law judge would be assigned to the case and then you would basically have a trial, very similar to what you would see in district court and civil district court in Texas Same rules of evidence, same rules of civil procedure, and then after that hearing, the judge is going to make written findings of facts and conclusions of law in a document that’s called the proposal for decision.

Speaker 2: 9:14

And then that proposal for decision is what will then determine whether the board can actually discipline the doctor. So in order for the board’s final formal disciplinary order to be able to, you know, for example, suspend the doctor’s license or put them on probation or, of course, in the worst case scenario, revoke their license, that proposal for decision from the administrative law judge has to have findings of fact and conclusions of law that support the disciplinary action the board is taking, and of course that is actually appealable. So that’s kind of the final step in the process is those orders can be appealed to district court in Travis County. At that point the cases are actually taken over by the attorney general’s office, and so that’s who you’d be dealing with.

Speaker 1: 10:02

You wouldn’t be really dealing with me anymore at that point, so yeah, and then I know I was about to say it’s a long process. It sounds like, and it sounds like there’s, you know, a good, good opportunity for the license holder to have their day in court and, you know, be able to state their case and and defend their license. Yeah, and I also wanted to point out that you know, with those standard of care issues, that it’s not just an executive who is reviewing this right and making those decisions. It’s someone who is a licensed chiropractor that is reviewing that and I think it’s really important that license holders know that that there is, you know, the person who’s reviewing the standard of care is someone who has been in you know your exact job role before. So that’s, you know, very important.

Speaker 2: 10:56

Yeah, and you know, if I could add to that, I would just say, you know that this concept of like due process, of what you’re talking about, about having your day in court, that say, you know that this concept of like due process, of what you’re talking about about having your day in court, that’s, you know, fundamental to the American justice system really is the easiest way to put it and that’s something that our agency takes very seriously. And you know, you wouldn’t just even have the standard of care reviewer reviewing your case. There’s also two members of the enforcement committee that are chiropractors. And again, these are, you know, experienced professionals that have been there before. They know what to look for when you’re dealing with an allegation of oh, my doctor hurt me. You know there’s a whole litany of steps and best practices and standards of care that the doctors are supposed to follow, and so that’s who you know when you’re, when you’re talking about reviewing a case, that’s who’s making those determinations.

Speaker 2: 11:56

And then again, if it does have to go to administrative hearing, all of that has to be put on as expert evidence, right, that has to all be explained to the administrative law judge. So they’re making not only an independent decision, that’s, you know, free of any influence from the board or anything like that, but also an informed decision on the case, that they actually know what these standards of care are and that they actually know what the laws say and require of the doctors. So, you know, I might be a little biased, but I think that our process is extremely fair and gives doctors every opportunity to to get their case heard and to get it resolved in a way that’s fair to them. And and you know you mentioned a few minutes ago that it’s a, it’s a and it can be. Certainly, if you go all the way to an administrative hearing, I mean that could potentially take years, months, yeah, months, just to get docketed.

Speaker 2: 13:00

But there’s so many steps before that where the case can be dismissed, you know, I mean, we’ve literally intaked cases and then immediately dismissed them because it was clear from from the surface of the complaint that it was a meritless complaint or there just wasn’t anything about it that was under our jurisdiction. But even in cases where we do investigate, our investigators move very fast.

Speaker 1: 13:19

We take that very seriously and they get cases closed fast if they find that the doctor didn’t do anything wrong, well, good, yeah, and it does sound like that from what you’ve described in your processes that it’s a very fair process that y’all’s agency takes really serious. This is a great segue into my next question, which is how are these cases most commonly resolved? Do you guys see a lot of dismissals? It sounds like not a lot of state office of administrative hearings. You know happen too often.

Speaker 2: 13:55

Yeah, you know, like I said, that’s really kind of the weapon of last resort, if you will.

Speaker 2: 14:02

The majority of cases of complaints that we receive don’t result in any disciplinary action at all, right Like a majority of them are dismissed or closed by the enforcement committee with a finding of no violation, and I would say that that’s well over 50 percent of cases. And then even then, if any disciplinary action is actually taken, it’s most likely going to be a letter of warning or a letter of education or an administrative citation. You know, I would certainly say I don’t have a hard number for you off the top of my head, but I would certainly say a minority of cases are closed with any sort of actual permanent disciplinary action. That goes on a doctor’s record, and that’s what the doctors are most concerned about. A lot of times it’s not even really about the fine or maybe being suspended for a few weeks or something. It’s the fact that this goes on their record and then that causes all kinds of problems down the road.

Speaker 2: 14:56

When you’re trying to get credentialed in an insurance network, when you’re trying to get on with a new and up and coming practice, you know disciplinary actions can come up. They can come up if you’re trying to get licensed in another state or even if you’re trying to get an entirely different type of license. You might decide you want to go become a real estate agent, that you’re tired of being a doctor. Background check for the Texas Real Estate Commission is going to pull up that you had a disciplinary action with us. So it’s important to remember that all the different state agencies communicate with one another, and so there’s a lot of information sharing. That goes on.

Speaker 1: 15:33

Yeah, I’m glad you, I’m glad you’ve said that, because it is it’s very important for license holders to know that, yes, if you, you know, violate the standards of care and you get your license revoked, you can’t just pick up and go to a different state agency and, you know, immediately obtain a license in a different industry. They, they also are protecting the public and they would, you know, immediately obtain a license in a different industry. They also are protecting the public and they, would you know, want to make sure that they’re not going to hand a bad apple a license.

Speaker 2: 16:01

Or often just move to another part of the country, right, exactly that’s something we see a lot of.

Speaker 1: 16:06

Yeah, but what you know, from what it sounds like though it sounds like chiropractors in Texas generally pretty well-behaved group of people it sounds like there common issues that you see come up, and what recommendations do you have to avoid those issues?

Speaker 2: 16:38

So not keeping proper patient records is a major problem. So anytime we have to review a patient’s records which is really, you know, typically a majority of the complaints we receive we’re going to check them for compliance with our record keeping rule, regardless of whether or not that’s what the patient’s alleging is an issue. And so if we’re reviewing records and we see there’s notes that are just not being included entirely or it’s obvious that you’re dealing with like cookie cutter type notes for the patient records, that’s going to be a violation of our patient record keeping rule and even if the chiropractor otherwise did nothing wrong, we’re going to have to, you know, potentially take disciplinary action on that. Another issue that we commonly see, you know I kind of touched on this a little bit earlier is the issue with advertising for services that are outside the scope for chiropractors. You know this is mainly going to consist of offers to treat conditions that aren’t related to the musculoskeletal system at all.

Speaker 1: 17:45

In.

Speaker 2: 17:45

Texas, the. You know, the scope of practice for chiropractors is restricted to the musculoskeletal system of the human body, and that’s actually kind of another important point. I don’t know if you all know this at all, but animal chiropractic is a real thing and it’s.

Speaker 1: 18:01

I have not heard of that. That’s crazy.

Speaker 2: 18:04

It’s important in Texas too. I’m not just talking about dogs and cats, I’m talking about livestock, you know, large animals.

Speaker 1: 18:10

Okay about dogs and cats.

Speaker 2: 18:11

I’m talking about livestock, you know, large animals, and so in Texas, any type of care provided to an animal is strictly the jurisdiction of the veterinarians.

Speaker 2: 18:22

And so in order for a chiropractor to provide animal chiropractic in Texas, that they have to basically receive a referral from a veterinarian.

Speaker 2: 18:30

But as far as humans go, it’s strictly going to be the musculoskeletal system and then the nerves that are related to the musculoskeletal system, and so you know we’ll see advertisements for chiropractors who say that, you know, regular adjustments can help with ADHD, or they can help with GI issues or ear infections, all these kinds of things, and those that’s those are advertising services that are outside the scope. It’s it’s not the actual adjustments that are outside the scope, but it’s what you’re saying, that the services that you can provide can do. You know how they can help and treat a person, and just kind of the way that the statute that establishes the scope in Texas is written, that’s going to be considered advertising outside scope. So that’s something that’s very important for our licensees to be to keep in mind, particularly when you know they’re wanting to advertise for their clinic. You know social media advertising is all the rage these days, and so make sure that what you’re putting out there on your practices socials is going to be within scope and it’s going to be above board for the TBCE.

Speaker 1: 19:40

Yeah, that’s a good one, and thanks for providing those examples so that you know our listeners can go. Oh, I’m going to pull down my advertisement that says this adjustment can help with, you know, like you said, gut issues or something like that. Do you have any other final advice that may be beneficial to our viewers, Any special or unique tips that they may be able to utilize?

Speaker 2: 20:06

Yeah, absolutely. You know, one of the big things and I think I maybe touched on this a little bit at the very beginning is making sure that you have up-to-date contact info with us, because, again, if we get a complaint and we can’t actually notify you of the complaint, that’s going to be a default, which most of the time, actually results in a license revocation, results in a license revocation, and, unfortunately, I have actually revoked someone’s license before having nothing to do with the complaint, just the fact that they weren’t able to respond to the complaint at all, and that’s all we can really do in a situation like that, right? Something else that I think is important to stress is, in Texas, ownership of chiropractic clinics is not restricted to chiropractors, and so we’ve had kind of an increasing issue with folks that have an ownership interest in a clinic, or own it entirely, who are basically instructing their doctors and staff to do things that are illegal, whether you’re talking about billing fraud or advertising services that are outside the scope. They’re basically trying to argue that they’re outside of our jurisdiction, and so the people that end up having to take the blame for any violations are the doctors. Those are the only people that actually have a license with us that we can really enforce.

Speaker 2: 21:32

So it’s important to be mindful of what your ownership or your management is saying and telling you, and if they’re telling you to do something illegal even if it’s, you know might potentially cost you your job you have to get out of there because otherwise you’re talking about your license. You know that’s your professional reputation that’s on the line. That’s something to be very mindful of. And then the last thing I want to just tell anybody who’s listening is if you ever have any questions, please contact us.

Speaker 2: 22:02

You can ask us anything, and we would always rather be able to answer a question and tell you no, that’s not really legal, then to find out after the fact in a complaint that we’re having to investigate. You can always pick up the phone and call us. We are a small agency. We don’t have a very big staff, but we actually really try and prioritize customer service, and so if the person that you talk to isn’t able to answer your question, they’ll get a hold of somebody who can, or they’ll transfer you, and we’re always going to follow up on a voicemail or an email too. So just don’t be afraid to ask. That’s really probably the single most important piece of advice I can give anyone listening.

Speaker 1: 22:46

Yes, and we support that. We want you to reach out to your regulatory agency and ask them the questions. We want you to reach out to your regulatory agency and ask them the questions you know. We want you to get engaged and stay informed. Well, thank you again, joe, so much for joining us this afternoon and taking the time to share your knowledge with us Again. For more information on this topic, you can visit the TBCE website linked in the description below. And until next time, stay informed and continue engaging with your regulatory agency. Know your Regulator the podcast that inspires you to engage.