1. (a) Complaints Reviewed. The Board may require expert review or investigation of the chiropractic care provided by a licensee involving:

   1. (1) standard of care violation; or
   2. (2) other violation(s) as determined by the Board.

2. (b) Qualifications. To qualify of as an expert to review a complaint set out in this section, a licensee shall, at the time of assignment:

   1. (1) maintain an active license;
   2. (2) have no prior violations of Board Rules or pending complaints;
   3. (3) have no prior convictions of a felony or a misdemeanor involving a criminal act;
   4. (4) demonstrate training or experience to offer an expert opinion regarding accepted standards of care;
   5. (5) demonstrate knowledge of accepted standards of care for the diagnosis, care and treatment related to the alleged violation; and
   6. (6) have an acceptable malpractice complaint history.

3. (c) Conflicts of Interest. An expert cannot accept a complaint for review, or must be recused, if the expert has:

   1. (1) a direct financial interest or relationship with any matter, party, or witness exists that would give the appearance of a conflict of interest;
   2. (2) a familial relationship within the third degree of affinity with any party or witness; or
   3. (3) knowledge of information about the licensee or related complaint that the expert cannot set aside to fairly and impartially consider the matter based solely on the information provided by the Board.
4. (d) List of Experts. The Board shall maintain a list of experts that meet the qualifications set forth in subsection (b) of this section. The Board will periodically audit the list to confirm the continued qualification of the experts listed.

5. (e) Assignment. In assigning experts to review complaints, an expert shall be selected:

   1. (1) when an investigator identifies a standard of care or related issue in the complaint;
   2. (2) on a random selection basis from the list, pending on availability of the expert; and
   3. (3) based on the expert's qualifications to review the type of injury or care involved.

6. (f) Removal. On order of the Executive Director, an expert reviewer may be removed from an investigation and from the list set forth in subsection (d) of this section, for the following grounds:

   1. (1) failure to maintain the required qualifications set forth in subsection (b) of this section;
   2. (2) repeated failure to timely complete reports in the prescribed format;
   3. (3) failure to inform the board of potential or apparent conflicts of interest; or
   4. (4) failure to maintain confidentiality of the matter under review.

7. (g) Documents. The Board shall provide to the expert assigned to review a complaint the following documents to perform an expert review:

   1. (1) The Complaint;
   2. (2) the investigator's report and supporting exhibits;
   3. (3) an expert report form to be completed by the expert; and
   4. (4) a contract for services.
8. (h) The expert shall review all relevant information and records collected by the agency and determine whether the Respondent has violated the standard of care applicable and issue a written report of that determination. The expert reviewer shall communicate with the board promptly, within at least seven (7) business days, if additional documentation is required to complete the review.

9. (i) Expert Report. A report prepared by the Expert shall include the following:

   1. (1) the general qualifications of the Expert;
   2. (2) relevant facts concerning the medical care rendered;
   3. (3) applicable standard of care;
   4. (4) application of the standard of care to the relevant facts;
   5. (5) a determination of whether the standard of care has been violated; and
   6. (6) the clinical basis for the determinations, including any reliance on peer-reviewed journals, studies, or reports.
10. (j) Time to Complete. The expert assigned to review a complaint shall complete the review within thirty (30) days, unless circumstances or complexities of the matter under review prevent completion within this time frame. The expert reviewer shall communicate promptly in writing to the Board any reason for the delay and the alternative expected date of completion.
11. (k) Respondent rebuttal. The Board shall provide the Expert findings to the Respondent to allow for a response. Any reply or rebuttal offered by Respondent shall be made in writing and provided to the Board within thirty (30) days of the date the report is provided to Respondent.
12. (l) Review by Enforcement Committee. The Enforcement Committee shall review the Expert Report and any response by Respondent to determine if a violation occurred. The matter may be referred for review by another expert, if necessary, upon determination by the Enforcement Committee.

Source Note:The provisions of this §80.5 adopted to be effective March 29, 2018, 43 TexReg 1861; transferred effective November 1, 2018, as published in the Texas Register October 19, 2018, 43 TexReg 6963.