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Texas Performance Review
Realigning Chiropractic Oversight


Use of Field Investigations


Background

In 1993, the State Auditor's Office (SAO) examined TBCE enforcement practices as part of a multi-agency audit of health-related licensing agencies. SAO concluded that TBCE lacked appropriate criteria to determine when investigations are warranted, and recommended that such criteria be adopted as soon as possible.[55] SAO's report also noted that TBCE's investigations were limited to mail and telephone contacts, methods deemed inadequate for sensitive cases.[56]

TBCE has since adopted rules providing investigation criteria.[57] These rules establish the agency's ability to initiate investigations, list the licensee's obligations in providing records, and place restrictions on undercover investigations. The rules, however, were prepared in response to a court order intended to ensure that the board does not misuse its investigative authority or unnecessarily harass licensees. In 1993, the board lost a legal battle in a case filed by a chiropractor five years earlier. In 1988, the chiropractor claimed that he was illegally harassed by TBCE because the board did not have specific statutory authority or rules to conduct secret or undercover investigations.[58]

While the board's rules set conditions and limitations for conducting investigations, they do not provide adequate guidance on how and when to use investigations. Other licensing agencies have manuals to help them make these determinations. The Texas State Board of Pharmacy, for example, has a manual that has been praised by the national Council on Licensure, Enforcement and Regulation (CLEAR), a body that tracks successful occupational licensing activities in the states.[59]

Spot Checks of chiropractic offices

TPR was told several times during its review of the Texas Board of Chiropractic Examiners that staff would begin spot-checking chiropractors' offices to make sure chiropractors were in compliance with state laws and rules. The stated intent was to initiate complaints rather than continue to act solely on complaints submitted in writing by chiropractors or their clients. To date, board staff have conducted a few site visits but have postponed future visits until the board can determine an effective method to obtain enforcement information from these visits.[60]

Minimal use of field investigations

TPR found that TBCE makes little use of investigations in its enforcement efforts, and, as SAO noted, most "investigations" still consist of little more than mail and telephone inquiries. TBCE staff members told TPR that their caseload made field investigations impractical. With an average of about 240 cases a year and a policy of processing every complaint similarly, the basic task of reviewing each case before the enforcement committee had been a major stumbling block in closing cases and determining which ones needed further investigation.

The enforcement committee's work is made more difficult by TBCE's reluctance to conduct field investigations. Written complaints TBCE receives often lack the level of detail needed to determine whether a violation of the chiropractic statute has occurred. For example, without following up the allegations in complaints involving the conduct of a practitioner, it is not possible to determine which cases have merit. Several cases examined by TPR were closed due to a lack of evidence that field work might have provided. For instance, one complaint a TPR analyst reviewed alleged sexual misconduct by a chiropractor, but the complainant failed to agree to appear in Austin before the board to discuss the matter. The board offered the complainant the option of providing an affidavit, but the complainant declined. As a result, no further action was taken. If the board staff had been able to obtain further information possibly from a field visit where the complainant may have felt more comfortable discussing the details of the case one-on-one with TBCE staff, the case might have resulted in a disciplinary action against the chiropractor.

Thorough investigations are also extremely critical because the enforcement committee's only other means of getting firsthand information from complainants and chiropractors is through requesting an affidavit or conducting an informal hearing, which requires the chiropractor and complainant to travel to Austin. This latter requirement could be a hardship under certain circumstances.

While they involve travel expenses, field investigations might even save money in the long run. The field investigation might identify insupportable cases or erroneous charges early on, avoiding the possibility that the enforcement committee would have to consider cases in informal hearings. Properly executed, field investigations would ensure that the enforcement committee has the best and most accurate information available at the outset of more serious complaints, those that might affect a practitioner's livelihood.


Recommendations

A. TBCE should strengthen its enforcement program by developing clearer, written guidelines on the use of field investigations by May 1, 1997.

The board should specify the conditions or circumstances under which investigations should be conducted. These guidelines could be assembled into an investigative manual.

The written guidelines would be valuable in setting standards for investigative proceedings and establishing consistency in the long run. As a reference, the written guidelines would be of value to new agency staff or new board members, assuring that over time, the board would use consistent practices in investigating complaints. Written guidelines would also reassure chiropractors that a set of standards are being applied in investigative proceedings, and chiropractors could even review these procedures before or after an investigation is initiated.

To save TBCE's time and effort, TPR further recommends that TBCE consult with other licensing boards to borrow as much as possible from the investigative procedures of other licensing boards. One of the benefits of belonging to the Health Professions Council is the opportunity to consult with larger boards and glean any useful procedures or practices from them. National licensing boards would be another source of useful information in this endeavor.

B. TBCE should develop an investigative report format by May 1, 1997 to capture consistent and relevant information in each investigation.

Several national licensing authorities note that aids such as investigative reports help licensing boards better track the progress of investigations and help enforcement committee members understand the facts in a case.[61] A uniform investigative report could summarize the allegation, the nature of the violation, document investigations conducted and evidence produced, and provide a provisional recommendation to the enforcement committee on possible disciplinary actions. The investigative report would help the board make consistent decisions on disciplinary actions and provide a clear record if the case later goes to hearing.

The investigative report would not duplicate or overlap with the board's file tracking form, which is essentially an administrative tool used to follow the progress of each complaint through resolution. The investigative report would focus solely on any investigative aspect of a complaint-who was contacted, what evidence was identified-and other information useful in determining the validity of a complaint. Again, TPR recommends that TBCE borrow from existing investigative reports in designing one for its use.

C. TBCE's enforcement coordinator should be trained in investigative procedures and practices.

A wide range of training would be useful for this position, including case management, evidence handling, and interviewing techniques.

Formal investigative training can be obtained from bodies including CLEAR and the Law Enforcement Training Institute of the University of Missouri at Columbia.[62] In addition to formal training, TBCE employees could gain experience in investigative techniques by accompanying investigators from other health licensing boards on field work.


Fiscal Impact

Costs associated with the recommended training should be paid from TBCE's existing budget, without additional appropriation.


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