Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity
Opinion
ACCEPTED 03-15-00262-CV 6432956 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/10/2015 4:45:15 PM JEFFREY D. KYLE CLERK
No. 3-15-00262-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS In the Court of Appeals 8/10/2015 4:45:15 PM Third District of Texas — Austin JEFFREY D. KYLE Clerk
TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Appellant, v.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY, Appellees.
On Appeal from 201st District Court, Travis County, Texas Cause No. D-1-GN-14-000355
BRIEF OF APPELLANT TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE
Craig T. Enoch Melissa A. Lorber Shelby O’Brien ENOCH KEVER PLLC 600 Congress Avenue, Suite 2800 Austin, Texas 78701 (512) 615-1200 / (512) 615-1198 fax Attorneys for Appellant
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Appellant (Plaintiff) Texas Association of Acupuncture Trial and Appellant counsel: and Oriental Medicine (“Association”) Craig T. Enoch Melissa A. Lorber Shelby O’Brien ENOCH KEVER PLLC 600 Congress Avenue, Suite 2800 Austin, Texas 78701
Appellees (Defendants) Texas Board of Chiropractic Trial and Appellate counsel: Examiners and Yvette Yarbrough, Joe H. Thrash Executive Director in her Official Assistant Attorney General Capacity Administrative Law Division (collectively “Chiropractic Board”) P.O. Box 12548 Austin, Texas 78711
i STATEMENT OF THE CASE
Nature of This is an Administrative Procedures Act challenge to the validity of the Case: Chiropractic Board rules that authorize chiropractors to engage in the unlicensed practice of acupuncture. The Association sought to invalidate these rules and alternatively sought a declaration under the Uniform Declaratory Judgment Act that the statutory scheme purportedly authorizing chiropractors to practice acupuncture is unconstitutional. 1 At issue is whether (1) the rules are invalid because acupuncture is outside the statutory scope of chiropractic, and (2) in the alternative, the statutory scheme purportedly authorizing chiropractors to practice acupuncture violates the constitutional prohibitions against the Legislature preferring one school of medicine and enacting legislation that contains more than one subject.
Trial Court: The 201st District Court of Travis County, Texas; Cause No. D-1- GN-14-000355.
Trial Court The trial court granted the Chiropractic Board’s motion for Disposition: summary judgment and denied the Association’s competing motion. 2
1 Clerk’s Record (“CR”) 3-19, 50-65, 716-32. 2 Appendix (“App.”) A.
ii STATEMENT REGARDING ORAL ARGUMENT This is an appeal of the trial court’s summary judgment in a suit in which the
Association challenged Chiropractic Board rules that authorize chiropractors to
engage in the unlicensed practice of acupuncture. This case requires the Court to
consider the validity of administrative rules, evaluate the constitutionality of
statutes, and determine the extent to which an agency can adopt rules authorizing
its licensees to engage in an occupational practice that is regulated by a different
regulatory board. The Association believes oral argument would be helpful in the
Court’s determination of these important issues of administrative law.
iii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i STATEMENT OF THE CASE ................................................................................. ii STATEMENT REGARDING ORAL ARGUMENT ............................................. iii INDEX OF AUTHORITIES................................................................................... vii ISSUES PRESENTED........................................................................................... xiii INTRODUCTION ..................................................................................................... 1 STATEMENT OF FACTS ........................................................................................ 4 A. Acupuncture and chiropractic are distinct practices regulated by separate regulatory boards. .................................................................... 4 B. Despite the Chiropractic Chapter’s prohibition on needle use, the Chiropractic Board has repeatedly asserted that chiropractors may practice acupuncture and other procedures requiring needle use............................................................................... 6 C. The Legislature amended the Acupuncture Chapter to define acupuncture as the “nonincisive, nonsurgical” insertion of an acupuncture needle. ............................................................................... 9 D. The Chiropractic Board adopted rules expressly authorizing chiropractors to practice acupuncture without a license from the Acupuncture Board.............................................................................. 12 E. This Court invalidated several Chiropractic Board rules, including a rule authorizing chiropractors to use needles, but the Chiropractic Board has refused to repeal its rules authorizing needle use and the practice of acupuncture. .................... 13 SUMMARY OF ARGUMENT ............................................................................... 16 ARGUMENT ........................................................................................................... 18 I. Because acupuncture is outside the statutory scope of chiropractic, the Chiropractic Board’s rules authorizing chiropractors to practice acupuncture without a license from the Acupuncture Board are invalid. ........................................................................................................... 18
iv A. The Chiropractic Board only has authority to adopt rules consistent with its statutory grant from the Legislature. ..................... 18 B. The Chiropractic Chapter unambiguously prohibits chiropractors from performing procedures involving needles, including acupuncture, because there is only one exception for needles—those used for diagnostic blood draws. ............................... 20 1. The Chiropractic Chapter broadly instructs that ‘incisive” encompasses incisions made by needles into the skin. ............. 20 2. Statutory construction principles confirm that the Chiropractic Chapter prohibits all needle use except for needles used for diagnostic blood draws. ................................. 21 3. Chiropractic is limited to specific techniques on discrete parts of the body while acupuncture is a separate medical profession in which practitioners treat the whole body. ........... 26 C. The Chiropractic Board’s interpretation of the Acupuncture Chapter as indirectly expanding the scope of chiropractic is entitled to no deference because it is unreasonable. ........................... 28 1. The Chiropractic Board’s interpretation contravenes the regulatory purpose of occupational statutes and creates a public health risk. ...................................................................... 28 2. It is unreasonable for the Chiropractic Board to rely on another profession’s scope of practice statute to allow its practitioners to practice a procedure that is prohibited under the Chiropractic Chapter. ................................................ 34 a. The Chiropractic Board has impermissibly latched onto one word (“nonincisive”) in the Acupuncture Chapter to redefine its own scope of practice. ............... 34 b. Legislative history supports that the amendment to the definition of acupuncture in the Acupuncture Chapter did not grant the Chiropractic Board the authority to regulate acupuncture. .................................. 37
v c.
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ACCEPTED 03-15-00262-CV 6432956 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/10/2015 4:45:15 PM JEFFREY D. KYLE CLERK
No. 3-15-00262-CV FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS In the Court of Appeals 8/10/2015 4:45:15 PM Third District of Texas — Austin JEFFREY D. KYLE Clerk
TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Appellant, v.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY, Appellees.
On Appeal from 201st District Court, Travis County, Texas Cause No. D-1-GN-14-000355
BRIEF OF APPELLANT TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE
Craig T. Enoch Melissa A. Lorber Shelby O’Brien ENOCH KEVER PLLC 600 Congress Avenue, Suite 2800 Austin, Texas 78701 (512) 615-1200 / (512) 615-1198 fax Attorneys for Appellant
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Appellant (Plaintiff) Texas Association of Acupuncture Trial and Appellant counsel: and Oriental Medicine (“Association”) Craig T. Enoch Melissa A. Lorber Shelby O’Brien ENOCH KEVER PLLC 600 Congress Avenue, Suite 2800 Austin, Texas 78701
Appellees (Defendants) Texas Board of Chiropractic Trial and Appellate counsel: Examiners and Yvette Yarbrough, Joe H. Thrash Executive Director in her Official Assistant Attorney General Capacity Administrative Law Division (collectively “Chiropractic Board”) P.O. Box 12548 Austin, Texas 78711
i STATEMENT OF THE CASE
Nature of This is an Administrative Procedures Act challenge to the validity of the Case: Chiropractic Board rules that authorize chiropractors to engage in the unlicensed practice of acupuncture. The Association sought to invalidate these rules and alternatively sought a declaration under the Uniform Declaratory Judgment Act that the statutory scheme purportedly authorizing chiropractors to practice acupuncture is unconstitutional. 1 At issue is whether (1) the rules are invalid because acupuncture is outside the statutory scope of chiropractic, and (2) in the alternative, the statutory scheme purportedly authorizing chiropractors to practice acupuncture violates the constitutional prohibitions against the Legislature preferring one school of medicine and enacting legislation that contains more than one subject.
Trial Court: The 201st District Court of Travis County, Texas; Cause No. D-1- GN-14-000355.
Trial Court The trial court granted the Chiropractic Board’s motion for Disposition: summary judgment and denied the Association’s competing motion. 2
1 Clerk’s Record (“CR”) 3-19, 50-65, 716-32. 2 Appendix (“App.”) A.
ii STATEMENT REGARDING ORAL ARGUMENT This is an appeal of the trial court’s summary judgment in a suit in which the
Association challenged Chiropractic Board rules that authorize chiropractors to
engage in the unlicensed practice of acupuncture. This case requires the Court to
consider the validity of administrative rules, evaluate the constitutionality of
statutes, and determine the extent to which an agency can adopt rules authorizing
its licensees to engage in an occupational practice that is regulated by a different
regulatory board. The Association believes oral argument would be helpful in the
Court’s determination of these important issues of administrative law.
iii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i STATEMENT OF THE CASE ................................................................................. ii STATEMENT REGARDING ORAL ARGUMENT ............................................. iii INDEX OF AUTHORITIES................................................................................... vii ISSUES PRESENTED........................................................................................... xiii INTRODUCTION ..................................................................................................... 1 STATEMENT OF FACTS ........................................................................................ 4 A. Acupuncture and chiropractic are distinct practices regulated by separate regulatory boards. .................................................................... 4 B. Despite the Chiropractic Chapter’s prohibition on needle use, the Chiropractic Board has repeatedly asserted that chiropractors may practice acupuncture and other procedures requiring needle use............................................................................... 6 C. The Legislature amended the Acupuncture Chapter to define acupuncture as the “nonincisive, nonsurgical” insertion of an acupuncture needle. ............................................................................... 9 D. The Chiropractic Board adopted rules expressly authorizing chiropractors to practice acupuncture without a license from the Acupuncture Board.............................................................................. 12 E. This Court invalidated several Chiropractic Board rules, including a rule authorizing chiropractors to use needles, but the Chiropractic Board has refused to repeal its rules authorizing needle use and the practice of acupuncture. .................... 13 SUMMARY OF ARGUMENT ............................................................................... 16 ARGUMENT ........................................................................................................... 18 I. Because acupuncture is outside the statutory scope of chiropractic, the Chiropractic Board’s rules authorizing chiropractors to practice acupuncture without a license from the Acupuncture Board are invalid. ........................................................................................................... 18
iv A. The Chiropractic Board only has authority to adopt rules consistent with its statutory grant from the Legislature. ..................... 18 B. The Chiropractic Chapter unambiguously prohibits chiropractors from performing procedures involving needles, including acupuncture, because there is only one exception for needles—those used for diagnostic blood draws. ............................... 20 1. The Chiropractic Chapter broadly instructs that ‘incisive” encompasses incisions made by needles into the skin. ............. 20 2. Statutory construction principles confirm that the Chiropractic Chapter prohibits all needle use except for needles used for diagnostic blood draws. ................................. 21 3. Chiropractic is limited to specific techniques on discrete parts of the body while acupuncture is a separate medical profession in which practitioners treat the whole body. ........... 26 C. The Chiropractic Board’s interpretation of the Acupuncture Chapter as indirectly expanding the scope of chiropractic is entitled to no deference because it is unreasonable. ........................... 28 1. The Chiropractic Board’s interpretation contravenes the regulatory purpose of occupational statutes and creates a public health risk. ...................................................................... 28 2. It is unreasonable for the Chiropractic Board to rely on another profession’s scope of practice statute to allow its practitioners to practice a procedure that is prohibited under the Chiropractic Chapter. ................................................ 34 a. The Chiropractic Board has impermissibly latched onto one word (“nonincisive”) in the Acupuncture Chapter to redefine its own scope of practice. ............... 34 b. Legislative history supports that the amendment to the definition of acupuncture in the Acupuncture Chapter did not grant the Chiropractic Board the authority to regulate acupuncture. .................................. 37
v c. The Court should decline to read the Acupuncture Chapter and Chiropractic Chapter in pari materia to create an exemption for acupuncture in the Chiropractic Chapter....................................................... 42 D. The Chiropractic Board’s interpretation of the Acupuncture Chapter is entitled to no deference because the Chiropractic Board’s expertise is chiropractic, not acupuncture. ............................ 45 E. The Chiropractic Board’s rules are invalid because they impermissibly allow chiropractors to practice acupuncture in violation of the Acupuncture Chapter. ................................................ 46 F. The rules are invalid because they authorize chiropractors to engage in the unauthorized practice of medicine. ............................... 47 II. Alternatively, the statutory scheme purportedly authorizing chiropractors to practice acupuncture violates the Texas Constitution because the Legislature may not favor one school of medicine over another nor enact legislation containing more than one subject. .................. 49 A. The statutory scheme purportedly authorizing chiropractors to practice acupuncture with significantly less education and training in acupuncture than licensed acupuncturists violates Texas Constitution, Article XVI, Section 31. ..................................... 50 B. The legislation that purportedly authorized chiropractors to practice acupuncture violates the one-subject rule in Texas Constitution, Article III, Section 35(a). .............................................. 52 III. The Chiropractic Board’s statute of limitations defense fails as a matter of law. ................................................................................................. 54 PRAYER ..................................................................................................................59 CERTIFICATE OF COMPLIANCE ....................................................................... 61 CERTIFICATE OF SERVICE ................................................................................ 61 APPENDIX ..............................................................................................................62
vi INDEX OF AUTHORITIES CASES Andrews v. Ballard 498 F. Supp. 1038 (S.D. Tex. 1980) .......................................................33, 47, 52 AT&T Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co. 186 S.W.3d 528 (Tex. 2006) .............................................................................. 37 Bd. of Water Eng’gs v. City of San Antonio 283 S.W.2d 722 (Tex. 1955) .............................................................................. 53 Beeman v. Livingston __ S.W.3d __, 2015 WL 4072404 (Tex. June 26, 2015) .............................. 23-24 Brooks v. Texas Medical Board No. 03-14-00239-CV, 2015 WL 3827327 (Tex. App.—Austin June 18, 2015, no pet. h.) ........................................................................ 36, 48-49 C. Hayman Constr. Co. v. Am. Indem. Co. 471 S.W.2d 564 (Tex. 1971) .............................................................................. 52 CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. of Cities 263 S.W.3d 448 (Tex. App.—Austin 2008), aff’d 324 S.W.3d 95 (Tex. 2010) ..........................................................................................................23 City of Houston v. Clark 197 S.W.3d 314 (Tex. 2006) .............................................................................. 33 City of Rockwall v. Hughes 246 S.W.3d 621 (Tex. 2008) .............................................................................. 25 City of Round Rock v. Rodriguez 399 S.W.3d 130 (Tex. 2013) .............................................................................. 38 Commonwealth v. Schatzberg 371 A.2d 544 (Pa. Cmwlth. 1977) ................................................................33, 47 DLB Architects, P.C. v. Weaver 305 S.W.3d 407 (Tex. App.—Dallas 2010, pet. denied).................................... 43 Dvorken v. Lone Star Indus., Inc. 740 S.W.2d 565 (Tex. App.—Fort Worth 1987, no writ) .................................. 58
vii Entergy Gulf States, Inc. v. Summers 282 S.W.3d 433 (Tex. 2009) .............................................................................. 37 Ex parte Halsted 182 S.W.2d 479 (Tex. Crim. App. 1944) .....................................................47, 51 Fazio v. Cypress/GR Houston I, L.P. 403 S.W.3d 390 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).................................................................................................................23 Grasso v. Cannon Ball Motor Freight Lines 81 S.W.2d 482 (Tex. Com. App. 1935) .............................................................. 39 Greater Houston P’ship v. Paxton __ S.W.3d __, 2015 WL 3978138 (Tex. June 26, 2015) ..............................24, 42 Heine v. Tex. Dept. of Pub. Safety 92 S.W.3d 642 (Tex. App.—Austin 2002, pet. denied) ............................... 55-56 Howlett v. Tarrant Cnty. 301 S.W.3d 840 (Tex. App.—Fort Worth 2009, pet. denied) ............................ 43 In re JMR 149 S.W.3d 239 (Tex. App.—Austin 2004, no pet.) .......................................... 43 In re Smith 333 S.W.3d 349 (Tex. 2011) .............................................................................. 19 Jessen Assocs., Inc. v. Bullock 531 S.W.2d 593 (Tex. 1976) .............................................................................. 52 Jose Carreras, M.D., P.A. v. Marroquin 339 S.W.3d 68 (Tex. 2011)................................................................................. 25 Kelley v. Raguckas 270 N.W.2d 665 (Mich. App. 1978) ................................................................... 47 Kuntz v. Khan No. 03–10–00160–CV, 2011 WL 182882 (Tex. App.—Austin 2011, no pet.) ......................................................................................................23 LeCroy v. Hanlon 713 S.W.2d 335 (Tex. 1986) .............................................................................. 52
viii Mid-Century Ins. Co. of Tex. v. Kidd 997 S.W.2d 265 (Tex. 1999) .............................................................................. 23 Nat’l Media Corp. v. City of Austin No. 03-12-00188-CV, 2014 WL 4364815 (Tex. App.—Austin Aug. 27, 2014, no pet.) ................................................................................. 43-44 Nw. Austin Municipal Util. Dist. No. 1 v. City of Austin 274 S.W.3d 820 (Tex. App.—Austin 2008, pet. denied) ............................. 58-59 People v. Roos 514 N.E.2d 993 (Ill. 1987) .................................................................................. 47 Physician Assistants Bus. Alliance of Tex., LLC v. Tex. Med. Bd. No. 03-12-00735-CV, 2015 WL 681010 (Tex. App.—Austin Feb. 13, 2015, no pet.) .................................................................................... 19-20, 23 Pruett v. Harris Cnty. Bail Bond Bd. 249 S.W.3d 447 (Tex. 2008) .............................................................................. 19 Pub. Util. Comm’n of Tex. v. City of Pub. Serv. Bd. of San Antonio 53 S.W.3d 310 (Tex. 2001)................................................................................. 18 R.R. Comm’n of Tex. v. Lone Star Gas Co. 844 S.W.2d 679 (Tex. 1992) .............................................................................. 18 R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future and Clean Water 336 S.W.3d 619 (Tex. 2011) .............................................................................. 19 Ritchie v. Rupe 443 S.W.3d 856 (Tex. 2014) .............................................................................. 24 Robinson v. Crown Cork & Seal Co., Inc. 335 S.W.3d 126 (Tex. 2010) .............................................................................. 37 Rodriguez v. Tex. Workforce Comm’n 986 S.W.2d 781 (Tex. App.—Corpus Christi 1999, pet. denied) ...................... 42 Rogers v. Tex. Bd. of Architectural Exam’rs 390 S.W.3d 377 (Tex. App.—Austin 2011, no pet.) ....................................20, 45 Schlichting v. Tex. State Bd. of Medical Exam. 310 S.W.2d 557 (Tex. 1958) .............................................................................. 50
ix Sommermeyer v. State 713 S.W.2d 183 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d)................ 53 State v. $1,760.00 in U.S. Currency 406 S.W.3d 177 (Tex. 2013) .............................................................................. 24 State v. Rich 339 N.E.2d 630 (Ohio 1975) .............................................................................. 47 State v. Won 528 P.2d 594 (Ore. App. 1974)........................................................................... 47 State Agencies v. R.R. Comm’n of Tex. 421 S.W.3d 690 (Tex. App.—Austin 2014, no pet.) .......................................... 34 State Office of Pub. Util. Council v. Pub. Util. Comm’n of Tex. 131 S.W.3d 314 (Tex. App.—Austin 2004, pet. denied) .............................23, 57 Teem v. State 183 S.W. 1144 (Tex. Crim. App. 1916) ............................................................. 47 Tex. Ass’n of Psychological Assoc. v. Tex. State Bd. for Exam’rs of Psychologists 439 S.W.3d 597 (Tex. App.—Austin 2014, no pet.) ......................................... 55 Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n 375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied) ..........................................5-9, 13-14, 19, 21-22, 25, 28, 38, 44-45, 49, 54-55, 57 Tex. Dep’t of Transp. v. Sefzik 355 S.W.3d 618 (Tex. 2011) (per curiam) ......................................................... 50 Tex Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Exam’rs 254 S.W.3d 714 (Tex. App.—Austin 2008, pet. denied) .................19, 23, 48, 52 Tex. State Bd. of Barber Exam’rs v. Beaumont Barber College, Inc. 454 S.W.2d 729 (Tex. 1970) ........................................................................28, 56 Tex. State Bd. of Chiropractic Examiners v. Abbott 391 S.W.3d 343 (Tex. App.—Austin 2013, no pet.) .............................. 25, 42-44 Tex. State Bd. of Exam’rs of Marriage & Family Therapists v. Tex. Med. Ass’n 458 S.W.3d 552, 554 (Tex. App.—Austin 2014, pet. filed) .............................. 55
x Tex. State Bd. of Public Accountancy v. Fulcher 515 S.W.2d 950 (Tex. Civ. App.—Corpus Christi 1974, writ ref’d n.r.e.) .............................................................................................................36, 56 Tex. Water Comm’n v. Brushy Creek Mun. Util. Dist. 917 S.W.2d 19 (Tex. 1996)................................................................................. 40 TGN-NOPEC Geophysical Co. v. Combs 340 S.W.3d 432 (Tex. 2011) .............................................................................. 23 Thompson v. Tex. State Bd. of Med. Exam’rs 570 S.W.2d 123 (Tex. App.—Tyler 1978, writ refused n.r.e.) .......................... 46 Transp. Ins. Co. v. Maksyn 580 S.W.2d 334 (Tex. 1979) .............................................................................. 40 West Orange-Cove Consol. Indep. Sch. Dist. v. Alanis 107 S.W.3d 558 (Tex. 2003) ........................................................................41, 54 Wilson v. State Bd. of Naturopathic Examiners 298 S.W.2d 946 (Tex. Civ. App.—Austin 1957, writ ref’d n.r.e.) .................... 50
RULES, STATUTES & OTHER PROVISIONS 22 TEX. ADMIN. CODE § 75.17 ................................................................ 12-15, 57-59 22 TEX. ADMIN. CODE § 75.21 ................................................................ 13-15, 57-59 22 TEX. ADMIN. CODE § 78.13 .......................................................... 14-16, 22, 57-59 22 TEX. ADMIN. CODE § 78.14 .............................................. 14-16, 27, 30-32, 57-59 22 TEX. ADMIN. CODE § 78.15 ...........................................................................14, 58 22 TEX. ADMIN. CODE § 183.2 ........................................................................... 29-30 22 TEX. ADMIN. CODE § 183.4 ........................................................................... 29-30 22 TEX. ADMIN. CODE § 183.20 ............................................................................... 30 22 TEX. ADMIN. CODE § 184.4 ................................................................................. 29 TEX. CIV. PRAC. & REM. CODE § 16.051................................................17, 54, 56, 58 TEX. CIV. PRAC. & REM. CODE § 37.004.................................................................. 50 TEX. CIV. PRAC. & REM. CODE § 37.006.................................................................. 50 xi TEX. CONST. art. III, § 35(a) ...................................................................17, 40, 49, 52 TEX. CONST. art. XVI, § 31 ..........................................................................17, 49, 50 TEX GOV’T CODE § 311.026..................................................................................... 42 TEX. OCC. CODE § 151.002 ............................................................................6, 48, 51 TEX. OCC. CODE § 151.052 ................................................................. 6, 47-48, 51-52 TEX. OCC. CODE § 201.002 ............................................... 5, 15, 20-21, 24, 26-27, 46 TEX. OCC. CODE § 201.152 ........................................................................................ 5 TEX. OCC. CODE § 201.1525 ................................................................................8, 12 TEX. OCC. CODE § 201.1526..................................................................................... 12 TEX. OCC. CODE § 205.001 ......................................................................9, 26, 46, 52 TEX. OCC. CODE § 205.101 ...................................................................................... 47 TEX. OCC. CODE § 205.201 ...................................................................................... 46 TEX. OCC. CODE § 205.203 ..........................................................................29, 33, 52 TEX. OCC. CODE § 205.206 ..........................................................................29, 33, 52 TEX. OCC. CODE § 205.255 ................................................................................30, 52
OTHER AUTHORITIES Act of May 29, 1997, 75th Leg., R.S., ch. 1170, § 1 ...........................................9, 39 Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8 ...........................................8, 12 Tex. Att’y Gen. Op. DM-471 (1998) ................................................................. 11-12 Tex. Att’y Gen. Op. DM-472 (1998) ...................................................................8, 12 Tex. Att’y Gen. Op. DM-415 (1996) ......................................................................... 7 Tex. S.B. 1601, 82nd Leg., R.S. (2011).............................................................11, 39
xii ISSUES PRESENTED ISSUE 1: Because acupuncture is outside the statutory scope of chiropractic, the Chiropractic Board’s rules authorizing chiropractors to practice acupuncture without a license from the Acupuncture Board are invalid.
ISSUE 2: Alternatively, the statutory scheme purportedly authorizing chiropractors to practice acupuncture violates the Texas Constitution because the Legislature may not favor one school of medicine over another nor enact legislation containing more than one subject.
ISSUE 3: The Chiropractic Board’s statute of limitations defense fails as a matter of law.
xiii INTRODUCTION Acupuncture and chiropractic are governed by distinct chapters of the
Occupations Code and are subject to regulation by separate administrative boards.
In these two chapters, the Legislature has set forth the unique training and
education requirements for each healthcare profession. And the Legislature has
granted each governing board the authority to regulate the healthcare profession
within its expertise—the Chiropractic Board regulates the practice of chiropractic
and the Texas State Board of Acupuncture Examiners (“Acupuncture Board”)
regulates the practice of acupuncture. Statutes governing healthcare professions
like chiropractic and acupuncture serve a critical function: they protect the public
by ensuring baseline standards that the public can assume have been met when
seeking a particular healthcare treatment.
In this case, the Association challenged Chiropractic Board rules that
authorize chiropractors to practice acupuncture without a license from or oversight
by the Acupuncture Board. The Chiropractic Board adopted these rules even
though the Chiropractic Chapter limits chiropractic to treatment of the
musculoskeletal system and expressly prohibits chiropractors from performing
incisive procedures, with only one narrow exception for the use of needles for
diagnostic blood draws.
1 The Chiropractic Board performs no regulatory oversight over the practice
of acupuncture by its licensees, has no expertise in acupuncture, and does not
require its licensees to complete the education and training the Legislature has
statutorily determined is necessary for the safe practice of acupuncture. Licensed
acupuncturists must complete at least 2,625 hours in acupuncture training in a four-
year degree program. But the Chiropractic Board requires chiropractors to
complete only a paltry 100 hours of acupuncture instruction, with no requirement
of actual clinical training. The Chiropractic Board does not know how many or
which chiropractors practice acupuncture in Texas or if those chiropractors have
met even these minimal “standards” for the practice of acupuncture. This is simply
one strand in a larger pattern for the Chiropractic Board—authorizing healthcare
practices that far exceed what is “chiropractic,” even after censure by the
Legislature, the courts, and state officials.
Recognizing nothing in Texas Occupations Code, Chapter 201
(“Chiropractic Chapter”) 3 authorized the practice of acupuncture by its licensees,
the Chiropractic Board creatively commandeered a term in the Chapter 205
(“Acupuncture Chapter”) 4—defining acupuncture as the “nonincisive,
nonsurgical” insertion of acupuncture needles. The Board has twisted that term
3 The Chiropractic Chapter is attached as App. C. 4 The Acupuncture Chapter is attached as App. D.
2 into an “outside the Chapter” exception to the Chiropractic Chapter’s prohibition
on incisive procedures. But the Acupuncture Chapter does not mention
chiropractors, does not excuse chiropractors from obtaining a license from the
Acupuncture Board, does not except chiropractors from the minimum education
and training hours the Legislature has determined are required to safely and
effectively perform the procedure, and does not remove chiropractors from
oversight by the Acupuncture Board when practicing acupuncture.
The Court should reject the Chiropractic Board’s effort to pile so much
meaning on the term “nonincisive” in the Acupuncture Chapter. The Chiropractic
Board’s hijacking of a term in another occupation’s governing statute to reinvent
its own scope of practice creates a statutory scheme in which practitioners and the
public are required to hop-scotch between the Acupuncture Chapter and the
Chiropractic Chapter (and potentially various other Occupations Code chapters and
agency rules) to determine what procedures chiropractors are authorized to
perform. If the Chiropractic Board’s rules are allowed to stand, this Court’s
conclusion will create a precedent where a regulatory board may simply pronounce
that its practitioners can perform another healthcare profession without complying
with the regulatory framework required by state law. The Chiropractic Board’s
novel interpretation is unreasonable and unworkable.
3 In adopting and improperly amending rules authorizing the unlicensed
practice of acupuncture, the Chiropractic Board has exceeded the scope of its
statutory authority and the rules should be declared invalid. Alternatively, the
statutory scheme purportedly authorizing chiropractors to practice acupuncture
without a license or oversight by the Acupuncture Board violates the provisions of
the Texas Constitution prohibiting legislation that favors one branch of medicine or
contains more than one subject. The Court should reverse the trial court’s judgment
and render judgment for the Association.
STATEMENT OF FACTS
A. Acupuncture and chiropractic are distinct practices regulated by separate regulatory boards. The Texas Occupations Code is delineated into chapters, each regulating
distinct professions. Each of those chapters requires specific training and licensing
unique to each profession to ensure persons practicing those professions are well-
trained in their chosen field. Because the Legislature sets forth education and
training requirements unique to each profession, Texas consumers are able to
safely choose from providers who are appropriately qualified to practice a
particular procedure. The Chiropractic Chapter governs the practice of
chiropractic; the Acupuncture Chapter governs the practice of acupuncture.
As is true with other regulated professions, chiropractors may only perform
procedures that are within the statutory scope of the practice of chiropractic, and
4 the Chiropractic Board may only adopt rules governing chiropractic. See TEX. OCC.
CODE §§ 201.002, 201.152. Under the Chiropractic Chapter, chiropractors are 5 limited to treating the musculoskeletal system. See id. § 201.002(b)(1)-(2). And
incisive procedures—defined by that chapter as “making an incision into any
tissue, cavity, or organ by any person or implement”—are expressly identified as 6 outside the scope of chiropractic practice. See id. §§ 201.002(a)(3), (b)(2).
The Chiropractic Chapter’s prohibition against incisive procedures
identifies only one exception: “the use of a needle for the purpose of drawing
blood for diagnostic testing.” Id. § 201.002(a)(3). Thus, the Chiropractic Chapter
considers the use of a needle to be an incisive procedure. Nothing in the Chapter
cross-references the Acupuncture Chapter, lists acupuncture as an exception to the
prohibition on incisive procedures, or otherwise specifies that a chiropractor can
practice acupuncture or any other procedure involving needles (except diagnostic
blood draws).
5 Chiropractors may also improve the subluxation complex, which is a category of spinal disorders, using nonincisive, nonsurgical procedures such as adjustment and manipulation. Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 464, 468 (Tex. App.—Austin 2012, pet. denied). Because subluxation refers to a disorder of the spine, for ease of reference in this brief, the term musculoskeletal is used to encompass this term. 6 Surgical procedures are also prohibited, but there is no dispute that acupuncture is not a surgical procedure. See TEX. OCC. CODE § 201.002(a)(4), (b)(2).
5 Finally, though chiropractic is a healthcare profession, the Chiropractic
Board is not overseen by the Texas Medical Board, and chiropractors are exempt
from complying with the Texas Medical Practice Act—but only to the extent they
engage strictly in the practice of chiropractic. See id. §§ 151.002(13), 151.052. The
Chiropractic Chapter prohibits the use of needles by chiropractors; thus, when a
chiropractor practices acupuncture, he is not strictly engaged in the practice of
chiropractic.
B. Despite the Chiropractic Chapter’s prohibition on needle use, the Chiropractic Board has repeatedly asserted that chiropractors may practice acupuncture and other procedures requiring needle use. Since the 1990s, the Chiropractic Board has controversially asserted that
acupuncture and other procedures involving needles, such as needle
electromyography (“needle EMG”), are within the scope of the practice of
chiropractic. See Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Ass’n, 375 S.W.3d 7 464, 469 (Tex. App.—Austin 2012, pet. denied). The Legislature responded to
this controversy in 1995 by enacting the current statutory language in the
Chiropractic Chapter prohibiting chiropractors from practicing incisive procedures,
with only the one exception for diagnostic blood draws. Id. When the Chapter was
amended to prohibit incisive procedures, Representative Janek explained that
7 This Court’s Texas Medical Association opinion is attached as App. F.
6 “[t]his amendment would take out any ability by the chiropractors to put needles
into people.” Id. n.7. Soon after, in light of this amendment, the Attorney General
issued an opinion declaring that acupuncture is outside the scope of the practice of
chiropractic. Tex. Att’y Gen. Op. No. DM-415 (1996). The Attorney General
reached this conclusion because the sole exception to the prohibition on the
performance of incisive procedures was diagnostic blood draws. Id. Thus, the
Attorney General reasoned that all other procedures involving needles were outside
the statutory scope of chiropractic. Id.
Disregarding the Attorney General’s opinion, the Chiropractic Board 8 nonetheless continued asserting that its practitioners could practice acupuncture.
This was simply another chapter in the Chiropractic Board’s long history of
attempting to aggrandize the practice of chiropractic far beyond what is
“chiropractic,” not only as commonly understood but as defined by statute:
• The Chiropractic Board claimed chiropractors could perform needle EMG. An administrative law judge found that needle EMG was not within the scope of chiropractic, but the Chiropractic Board continued to advise chiropractors that they could perform the procedure. 9 It continued to do so until this Court shut down the practice by concluding that needle EMG is an incisive procedure. See Tex. Med. Ass’n, 375 S.W.3d at 481-82, 497.
8 CR 577. 9 Id.
7 • The Chiropractic Board claimed that chiropractors may perform manipulation under anesthesia (“MUA”). Consequently, the Legislature amended the Chiropractic Chapter to prohibit chiropractors from performing MUA, 10 but the Chiropractic Board continued advising chiropractors that they could perform the procedure. 11 Again, it was not until this Court mandated that MUA is a surgical procedure that the Chiropractic Board finally conceded that MUA was outside the scope of chiropractic. See id. at 488.
• The Chiropractic Board contended that chiropractors could inject substances into patients. The Attorney General opined that the injection of substances is the use of a needle and is thus outside the scope of chiropractic. See Tex. Att’y Gen. Op. DM-472 (1998). The Chiropractic Board ignored this opinion and continued advising chiropractors that they could perform procedures involving needles (like needle EMG). 12
• The Comptroller found that the Chiropractic Board had refused to comply with legislative enactments by failing to develop rules clarifying restrictions on performing incisive and surgical procedures, and recommended that the Chiropractic Board adopt rules establishing clear guidelines on the permissible scope of practice. 13 The Chiropractic Board declined to do so until forced to by the Legislature, despite the fact that it gave the Comptroller written assurances that it had begun the process of developing rules. 14 See Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § 8 (codified as TEX. OCC. CODE § 201.1525).
10 CR 578. 11 Id. 12 CR 577. 13 CR 578. 14 Id.
8 • The Chiropractic Board evaded rule challenges and input from stakeholders by issuing opinions informing chiropractors that they could perform various procedures, rather than adopting rules. Tex. Med. Ass’n, 375 S.W.3d at 470. 15
C. The Legislature amended the Acupuncture Chapter to define acupuncture as the “nonincisive, nonsurgical” insertion of an acupuncture needle. In 1997, in the course of the Acupuncture Board’s sunset review, the
Legislature amended the Acupuncture Chapter to define acupuncture as the
“nonincisive, nonsurgical” insertion of an acupuncture needle. See Act of May 29,
1997, 75th Leg., R.S., ch. 1170, § 1 (Senate Bill 361) (codified as TEX. OCC. CODE
§ 205.001(2)). This is the language the Chiropractic Board relies on to argue that
the definition of acupuncture in the Acupuncture Chapter constitutes both an
exception to the Chiropractic Chapter’s prohibition against needle use and an
invitation for chiropractors to practice acupuncture without a license from or
oversight by the Acupuncture Board.
The bill’s legislative history demonstrates that:
15 CR 574-80.
9 • The Acupuncture Board’s sunset bill originated in the Senate. Senator Madla offered an amendment amending the definition of acupuncture in the Acupuncture Chapter by inserting the term “nonsurgical, nonincisive” in an apparent indirect attempt to allow chiropractors to practice acupuncture. 16 The Senate passed the legislation as amended. 17
• When the bill was heard in the House Committee on Public Health, Representative Gray offered amendments that removed the “nonincisive, nonsurgical” amendment to the Acupuncture Chapter that had been adopted in the Senate and instead amended the Chiropractic Chapter to expressly authorize chiropractors to practice acupuncture, set forth training and education requirements, and provide for oversight by the Chiropractic Board. 18
• The legislation proceeded to the House floor. The House committee amendments providing direct authority for chiropractors to practice acupuncture were struck on point of order because the sunset bill was limited to the function of the Acupuncture Board and the proposed amendments to the scope of chiropractic were not germane to the bill. 19
• Ultimately, the bill was sent to conference committee where the conferees reinserted the “nonincisive, nonsurgical” amendment to the definition of acupuncture in the Acupuncture Chapter that had previously been added in the Senate. 20
Notably, the Chiropractic Chapter was not amended to affirmatively allow
chiropractors to practice acupuncture, even though there was an effort to do so.
And nothing in Senate Bill 361 gave the Chiropractic Board the authority to adopt 16 CR 455, 466. 17 Id. 18 CR 512. 19 CR 515-16. 20 CR 526, 534, 536.
10 rules authorizing chiropractors to practice acupuncture or created an exemption for
chiropractors from the Acupuncture Chapter’s education and licensing
requirements. Indeed, Representative Gray cautioned that amending the definition
of acupuncture in the Acupuncture Chapter would put the practice of acupuncture
by chiropractors under regulation by the Acupuncture Board, not the Chiropractic
Board. 21 Since Senate Bill 361’s enactment, legislation has unsuccessfully been
proposed to authorize chiropractors to practice acupuncture under regulation by the
Chiropractic Board. See Tex. S.B. 1601, 82nd Leg., R.S. (2011).
Nonetheless, relying on the amendment to the Acupuncture Chapter, the
Attorney General reversed course, reasoning that the Chiropractic Chapter and
Acupuncture Chapter should be read in pari materia since both regulate healthcare
professions. Tex. Att’y Gen. Op. DM-471 (1998). Improperly reading the chapters
together, the Attorney General reached the unsound conclusion that acupuncture
had become within the statutory scope of the practice of chiropractic simply by
virtue of the amendment to the Acupuncture Chapter. Id. That same day, the
Attorney General also issued a contradictory opinion concluding that the use of
needles continued to exceed the statutory scope of chiropractic, with the statutory
21 CR 478-80.
11 exception of blood draws and the “new exception” for acupuncture recognized in
DM-471. Tex. Att’y Gen. Op. DM-472 (1998).
D. The Chiropractic Board adopted rules expressly authorizing chiropractors to practice acupuncture without a license from the Acupuncture Board.
A few years later, in the course of the Chiropractic Board’s 2004 sunset
review, the Sunset Advisory Committee criticized the Chiropractic Board for its
systematic refusal to comply with the confines of the Chiropractic Chapter’s scope
of practice provision. 22 It found that “[t]he Board has a history of acting
unilaterally to expand scope of practice in a way that seems to indicate a greater
interest in promoting the profession than following the law and protecting
patients.” 23
In response, during the 2005 legislative session, the Legislature enacted a
provision requiring the Chiropractic Board to adopt rules clarifying which specific
activities are included in the scope of the practice of chiropractic. See Act of May
27, 2005, 79th Leg., R.S., ch. 1020, § 8 (codified at TEX. OCC. CODE §§ 201.1525-
.1526). In 2006, the Chiropractic Board responded by promulgating 22 Texas
Administrative Code § 75.17, formally authorizing chiropractors to perform
manipulation under anesthesia, acupuncture, and needle EMG. Subsequently, in 22 CR 574, 577-798. 23 CR 577.
12 2009, the Chiropractic Board enacted 22 Texas Administrative Code § 75.21,
which set forth parameters for the practice of acupuncture by chiropractors.
E. This Court invalidated several Chiropractic Board rules, including a rule authorizing chiropractors to use needles, but the Chiropractic Board has refused to repeal its rules authorizing needle use and the practice of acupuncture. The Texas Medical Association challenged several of the Chiropractic
Board’s newly adopted scope of practice rules, including those authorizing
chiropractors to perform needle EMG, on grounds that needle EMG is an incisive
procedure involving a needle and thus is outside the statutory scope of chiropractic.
See Tex. Med. Ass’n, 375 S.W.3d at 472. The district court agreed and invalidated
several of the rules, including Rule 75.17(a)(3), which expressly authorized
chiropractors to use needles. At the time of the suit, Rule 75.17(a)(3) stated:
(3) Needles may be used in the practice of chiropractic under standards set forth by the Board but may not be used for procedures that are incisive or surgical. (A) The use of a needle for a procedure is incisive if the procedure results in the removal of tissue other than for the purpose of drawing blood. (B) The use of a needle for a procedure is surgical if the procedure is listed in the surgical section of the CPT Codebook.
This Court affirmed the portion of the district court’s judgment invalidating
Rule 75.17(a)(3), concluding that needle EMG is an incisive procedure. See Tex.
13 Med. Ass’n, 375 S.W.3d at 497. 24 In response to the Court’s decision, in 2013, the
Chiropractic Board repealed or amended several rules related to needle EMG that
were declared invalid by the district court, but declined to repeal Rule 75.17(a)(3)
and other rules authorizing needle use by chiropractors. That same year the
Chiropractic Board amended Rule 75.21 to specify that chiropractors must comply
with the chiropractic scope of practice when performing acupuncture.
In January 2015, after the summary judgment hearing in this case, but before
the trial court’s judgment, the Chiropractic Board repealed Rules 75.17 and 75.21
as part of a non-substantive reorganization of its rules, then renumbered Rule 75.17
as Rules 78.13 and 78.15, and renumbered Rule 75.21 as Rule 78.14. See 40 Tex.
Reg. 376, 379 (2015). In the current version of the rules, Rule 78.13 provides that a
person practices chiropractic if he or she performs “nonsurgical, nonincisive
procedures,” and expressly authorizes needles to be used if they are not used for
incisive, surgical procedures. 22 TEX. ADMIN. CODE §§ 78.13(b)(1)(B), (b)(2).
Conversely, Rule 78.15 excludes from the practice of chiropractic “incisive or
surgical procedures.” Id. §§ 78.15(a)(1), (b)(1)(A), (b)(2)(A). Rule 78.13 also
narrowly defines an incision as “a cut or surgical wound; also, a division of the soft
24 The Texas Medical Association also challenged rules related to other procedures, including MUA. These rules were also invalidated by the district court. This Court affirmed most of the district court’s judgment, including the portion invalidating the MUA rule, but remanded other claims.
14 parts made with a knife or hot laser,” id. § 78.13(a)(4), despite the fact that the
Chiropractic Chapter broadly defines an incisive procedure as an incision into “any
tissue, cavity, or organ by any person or implement,” TEX. OCC. CODE
§ 201.002(a)(3) (emphasis added).
Thus, by crafting a definition of “incision” that is far narrower than the
Chiropractic Chapter’s broad definition of incisive, the Chiropractic Board has
enlarged the class of invasive procedures chiropractors are allowed to perform
beyond that allowed in the Chiropractic Chapter. Further, Rules 78.13(e)(2)(C) and
78.14 specifically authorize chiropractors to practice acupuncture in violation of
the Chiropractic Chapter and with minimal education and training “standards” for
the practice of acupuncture by chiropractors.
The Association filed suit challenging the Chiropractic Board’s rules that
authorize chiropractors to practice acupuncture—former 22 Texas Administrative 25 Code §§ 75.17(a)(3), (b)(4), (e)(2)(C), and 75.21, which are now 22 Texas 26 Administrative Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14. The parties
filed competing motions for summary judgment. After a hearing, the trial court
granted the Chiropractic Board’s motion and denied the Association’s motion.
25 The rules repealed in January 2015 can be found in the record at CR 213-24. 26 The new version of the rules is attached as App. B.
15 SUMMARY OF ARGUMENT The Court should invalidate the Chiropractic Board’s rules that authorize
chiropractors to practice acupuncture without a license from or oversight by the
Acupuncture Board because the chiropractic scope of practice does not include the
practice of acupuncture. See 22 TEX. ADMIN. CODE §§ 78.13(a)(4), (b)(2),
(e)(2)(C), 78.14. The Chiropractic Chapter limits the practice of chiropractic to
treatment of the musculoskeletal system and expressly prohibits chiropractors from
performing incisive procedures, except for diagnostic blood draws. Under
established principles of statutory construction, since the prohibition against
incisive procedures includes an exception for a needle used for one purpose, the
prohibition encompasses needles used for other purposes—including acupuncture.
With a single-minded focus on purported legislative intent, the Chiropractic
Board has argued that the Legislature intended to exempt chiropractors practicing
acupuncture from the Acupuncture Chapter’s licensing requirements when it
amended the Acupuncture Chapter to define acupuncture as the “nonincisive”
insertion of an acupuncture needle. But the Legislature’s intent about an enactment
is expressed through the statutory language. And nothing in the Acupuncture
Chapter (or Chiropractic Chapter) grants chiropractors the authority to practice
acupuncture without a license from or oversight by the Acupuncture Board.
Further, even if it is appropriate to consider legislative history, the Chiropractic
16 Board’s argument fails because the history does not support that the amendment
successfully authorized chiropractors to practice acupuncture without a license.
The Chiropractic Board’s interpretation of the Acupuncture Chapter and
Chiropractic Chapter is unreasonable and entitled to no deference.
Alternatively, if Senate Bill 361’s amendment to the Acupuncture Chapter
expanded the scope of chiropractic as set forth in the Chiropractic Chapter to
include acupuncture, the statutory scheme is unconstitutional. First, it creates a
regime in which chiropractors can practice acupuncture with virtually no training
in the procedure while acupuncturists must complete extensive education and
training to become licensed. This violates the Texas Constitution’s prohibition
against preference for one school of medicine over another. See TEX. CONST. art.
XVI, § 31. Second, it violated the one-subject rule because that bill concerned the
continuation and functions of the Acupuncture Board, not the scope of the practice
of chiropractic. See id. art. III, § 35(a).
Finally, the Chiropractic Board’s affirmative defense of limitations fails as a
matter of law. The Board urges that because it has for more than four years
illegally authorized chiropractors to practice acupuncture, the residual statute of
limitations in Texas Civil Practice and Remedies Code, Section 16.051 allows it to
continue to exceed its statutory authority and violate Texas law, daily and with
impunity. No court has applied the residual statute of limitations to an
17 Administrative Procedures Act declaratory judgment action challenging the
validity of agency rules. But even if it applied, the four-year limitations period has
not expired because the Chiropractic Board amended the challenged rules in 2013
and 2015 and the rules are a continuing and ongoing violation of state law.
The Association urges the Court to reverse and render judgment for the
Association declaring the Chiropractic Board’s rules authorizing chiropractors to
practice acupuncture are invalid or, alternatively, the statutory scheme authorizing
chiropractors to practice acupuncture is unconstitutional. In the further alternative,
if the Court believes any fact issue exists, the Association requests that the Court
remand for a new trial.
ARGUMENT
I. Because acupuncture is outside the statutory scope of chiropractic, the Chiropractic Board’s rules authorizing chiropractors to practice acupuncture without a license from the Acupuncture Board are invalid.
A. The Chiropractic Board only has authority to adopt rules consistent with its statutory grant from the Legislature. An agency’s power to make rules is dependent on a valid statutory grant.
Pub. Util. Comm’n of Tex. v. City of Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310,
315 (Tex. 2001); R.R. Comm’n of Tex. v. Lone Star Gas Co., 844 S.W.2d 679, 685
(Tex. 1992). In determining whether rules were adopted or amended within an
agency’s statutory grant, a court must consider whether each rule (1) contravenes
18 specific statutory language, (2) runs counter to the objectives of the underlying
statute, or (3) imposes additional burdens, conditions, or restrictions in excess of or
inconsistent with the statutory provisions. Physician Assistants Bus. Alliance of
Tex., LLC v. Tex. Med. Bd., No. 03-12-00735-CV, 2015 WL 681010, at *2 (Tex.
App.—Austin Feb. 13, 2015, no pet.); Tex. Med. Ass’n, 375 S.W.3d at 474; Tex
Orthopaedic Ass’n v. Tex. State Bd. of Podiatric Med. Examiners, 254 S.W.3d 714,
719 (Tex. App.—Austin 2008, pet. denied). “Absent specific or implied statutory
authority, an agency rule is void.” Physician Assistants Bus. Alliance, 2015 WL
681010, at *2.
Further, though courts give great weight to an agency’s interpretation of a
statute, this deferential standard of review only applies if the language of a statute
is ambiguous, and courts give even less deference when legislative intent is at
issue. R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future and Clean Water,
336 S.W.3d 619, 625 (Tex. 2011); In re Smith, 333 S.W.3d 349, 356 (Tex. 2011).
Additionally, an agency’s construction of a statute must be reasonable. Tex.
Citizens for a Safe Future and Clean Water, 336 S.W.3d at 625. And notably, if an
agency attempts to regulate activities outside the scope of its statutory grant, the
rule is void regardless of how reasonable it may be. Pruett v. Harris Cnty. Bail
Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008). Relatedly, a court grants no deference
to an agency’s interpretation in regard to issues that do not lie within the agency’s
19 expertise. Rogers v. Tex. Bd. of Architectural Exam’rs, 390 S.W.3d 377, 384 (Tex.
App.—Austin 2011, no pet.).
The Chiropractic Board’s rules authorizing chiropractors to practice
acupuncture contravene the plain statutory language and objectives of the
Chiropractic Chapter. And the Chiropractic Board’s effort to co-opt the
Acupuncture Chapter to redefine chiropractic is entitled to no deference because its
interpretation is unreasonable, and acupuncture is neither subject to the
Chiropractic Board’s regulation nor within its expertise.
B. The Chiropractic Chapter unambiguously prohibits chiropractors from performing procedures involving needles, including acupuncture, because there is only one exception for needles—those used for diagnostic blood draws.
1. The Chiropractic Chapter broadly instructs that ‘incisive” encompasses incisions made by needles into the skin. If a statute is unambiguous, a court looks no further beyond the literal text.
Physician Assistants Bus. Alliance, 2015 WL 681010, at *2. The Chiropractic
Chapter defines, without ambiguity, what is “chiropractic.” A person practices
chiropractic if the person (1) “uses objective or subjective means to analyze,
examine, or evaluate the biomechanical condition of the spine and musculoskeletal
system of the human body,” or (2) “performs nonincisive, nonsurgical procedures,
including adjustment and manipulation, to improve the subluxation complex or the
biomechanics of the musculoskeletal system.” TEX. OCC. CODE § 201.002(b).
20 “Incisive,” in turn, is defined as “making an incision into any tissue, cavity, or
organ by any person or implement,” with one exception for “the use of a needle for
the purpose of drawing blood for diagnostic testing.” Id. § 201.002(a)(3).
Acupuncture is an invasive procedure in which acupuncturists use needles to
penetrate skin. The Chiropractic Chapter specifically instructs that incisive
procedures include those procedures in which an incision is made into any tissue,
cavity, or organ by any person or implement. Id. § 201.002(a)(3). Skin is both a
tissue and an organ, 27 and a needle is an “implement” for making an incision.28
Thus, a needle penetrating skin is an incisive procedure expressly prohibited by the
Chiropractic Chapter. 29
2. Statutory construction principles confirm that the Chiropractic Chapter prohibits all needle use except for needles used for diagnostic blood draws. The legal question raised in this case was not answered by this Court’s
decision in Texas Medical Association. The Court noted that differences might 27 See Merriam-Webster Dictionary, available at http://www.merriam- webster.com/dictionary/skin; https://www.aad.org/dermatology-a-to-z/for-kids/about-skin; http://www.webmd.com/skin-problems-and-treatments/picture-of-the-skin. 28 Dictionary.com, available at http://dictionary.reference.com/browse/implement) (defining “implement” as an article used in some activity, especially an instrument, tool, or utensil). 29 Indeed, Yvette Yarbrough, the Executive Director of the Chiropractic Board, admitted at a 2012 Chiropractic Board meeting that acupuncture is “in practice” an incisive procedure, and that chiropractors may practice the procedure only by latching onto the definition of acupuncture in the Acupuncture Chapter (discussed further below). Chiropractic Board July 11, 2012 ad hoc meeting, at 1:46:00, available at https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
21 exist between the “technical” and “ordinary” meanings of “incisive,” and that the
“technical” meaning may be limited to a “cut” (such as by an instrument with a
beveled edge) while the ordinary meaning may also include “piercing.” See 375
S.W.3d at 479-80. The Court observed that it could be such a distinction that
would explain how acupuncture needles would be capable of being inserted in a
“nonincisive” manner under the Acupuncture Chapter. Id. at 481.
But the Court did not reach the question of whether “incisive” as used in the
Chiropractic Chapter— “making an incision into any tissue, cavity, or organ by
any person or implement”—is limited to “cutting” as stated in the Chiropractic
Board’s Rule 78.13(a)(4). The Medical Board did not challenge that definition in
the Chiropractic Board’s rules. Id. at 480. The Association challenges that
definition now and urges the Court to conclude, as a matter of statutory
construction, that the term “incisive” in the Chiropractic Chapter encompasses all
needle use (save the one listed exception for needles used for diagnostic blood
draws), regardless of whether a needle has a beveled edge.
First, under the doctrine of expressio unius est exclusio, the fact that a needle
used for diagnostic purposes is the only exception to the Chiropractic Chapter’s
prohibition on “incisive” procedures conveys both the Legislature’s belief that
needles are incisive and intent to prohibit chiropractors from using needles for
other purposes:
22 • The Legislature is presumed to choose its words carefully and include or exclude particular words purposefully. TGN-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011); Tex Orthopaedic Ass’n, 254 S.W.3d at 719.
• When the Legislature intends to include a particular term in a statute, it does so expressly. See Beeman v. Livingston, __ S.W.3d __, 2015 WL 4072404, at *4 (Tex. June 26, 2015).
• When a statute lists specific exceptions to its application, the intent is clear that no other exceptions shall apply. Mid-Century Ins. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999). This is especially true when the exception is of the same type expressly included—here, procedures involving needles. Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390, 421 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. of Cities, 263 S.W.3d 448, 464 (Tex. App.—Austin 2008), aff’d 324 S.W.3d 95 (Tex. 2010).
• A rule is void if it conflicts with a statute’s plain language, and a rule may not change the scope of a legislatively mandated exception. Physician Assistants Bus. Alliance, 2015 WL 681010, at *3; see also State Office of Pub. Util. Council v. Pub. Util. Comm’n of Tex., 131 S.W.3d 314, 321 (Tex. App.—Austin 2004, pet. denied).
In adopting and later amending rules authorizing chiropractors to practice
acupuncture, the Chiropractic Board has read into its scope of practice statute an
additional exception to the prohibition on needle use that is not there. In the
process, the Chiropractic Board has impermissibly attempted to narrow the scope
of what is “incisive.” This Court has rejected similar efforts to read into scope of
practice statutes terms that are not included. See, e.g., Kuntz v. Khan, No. 03–10–
00160–CV, 2011 WL 182882, at *7-8 (Tex. App.—Austin 2011, no pet.).
23 Had the Legislature intended for chiropractors to practice acupuncture, it
could have listed acupuncture as a second exception to the prohibition against
incisive procedures. Or the Legislature could have defined chiropractic as
including acupuncture, along with the other practices expressly listed, such as the
adjustment and manipulation of the musculoskeletal system. See TEX. OCC. CODE
§§ 201.002(a)(3), (b). Indeed, legislation that would have authorized chiropractors
to practice acupuncture has been proposed and rejected on three occasions. See
Part I.C.2.b, infra. The Chiropractic Board may not imply the practice of
acupuncture into its scope of practice statute where it has been excluded.
Second, it is also most consistent with the context of the Chiropractic
Chapter to interpret “incisive” as encompassing all procedures involving needles,
including acupuncture. Courts look to dictionary definitions for the meaning of a
term used in a statute and apply the definition that is most consistent with its use in
the statute. Beeman, 2015 WL 4072404, at *4; State v. $1,760.00 in U.S. Currency,
406 S.W.3d 177, 180 (Tex. 2013). And courts “rely on the doctrine of noscitur a
cociis (“it is known by its associates”) to avoid ascribing to a word a meaning so
broad that it is incommensurate with the statutory context. Beeman, 2015 WL
4072404, at *4; see also Ritchie v. Rupe, 443 S.W.3d 856, 869 (Tex. 2014).
Contextual clues come from the words immediately surrounding a term. See
Greater Houston P’ship v. Paxton, __ S.W.3d __, 2015 WL 3978138, at *5-7
24 (Tex. June 26, 2015). When read in its contextual environment, the Chiropractic
Chapter’s prohibition on incisive procedures encompasses acupuncture because by
including blood draw needles within the definition of incisive, the Legislature
intended for “incisive” to encompass other needles as well.
Third, the Court should not read the term “incisive” in a manner that leads to
absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008);
Tex. State Bd. of Chiropractic Examiners v. Abbott, 391 S.W.3d 343, 347 (Tex.
App.—Austin 2013, no pet.). An acupuncture needle is a needle and, as
Representative Janek observed during debate on Senate Bill 361, “a needle is a 30 needle.” It is absurd to contemplate a statutory scheme in which it is necessary to
examine each needle used in a particular practice under a magnifying glass to
determine whether it has a beveled edge or not. See Jose Carreras, M.D., P.A. v.
Marroquin, 339 S.W.3d 68, 73 (Tex. 2011). This is not what the Legislature
intended when it amended the Chiropractic Chapter to prohibit incisive procedures.
See Tex. Med. Ass’n, 375 S.W.3d at 469 n.7.
30 CR 493.
25 3. Chiropractic is limited to specific techniques on discrete parts of the body while acupuncture is a separate medical profession in which practitioners treat the whole body. Additionally, while acupuncture treats and mitigates “a human condition,”
TEX. OCC. CODE § 205.001(2), chiropractic is limited to treating the
musculoskeletal system, id. § 201.002(b). Acupuncture cannot be included within
the statutory scope of chiropractic because acupuncture is not limited to treatment
of the musculoskeletal system and so, by its very nature, exceeds the scope of
chiropractic. Acupuncture is also a separate medical practice and profession, with
its own history and philosophical and theoretical underpinnings, entirely separate
from that of chiropractic.
In adopting rules authorizing chiropractors to practice acupuncture, the
Chiropractic Board has authorized its licensees to practice an entirely different type
of medicine. The rules are akin to an Acupuncture Board rule authorizing
acupuncturists to practice chiropractic or dentistry—professions regulated by
separate regulatory boards with distinct licensing requirements. And the
Chiropractic Board has not only authorized its licensees to practice a different
medical profession, but has unilaterally exempted them from the education,
training, and licensing requirements mandated by the Legislature and the
regulatory board that does regulate that profession. The Chiropractic Board’s rules
26 undermine and devalue the education and training of those who lawfully perform
acupuncture and put the public at risk of untrained practitioners.
The fact that the Chiropractic Board has included a limitation in its
acupuncture rule that the “therapeutic modalities” used in performing acupuncture
“must comply with the chiropractic scope of practice as defined by Texas
Occupations Code § 201.002” does nothing to make the Board’s rules valid. See 22
TEX. ADMIN. CODE § 78.14(a). The limitation instead creates a circular argument:
the scope of the practice of chiropractic, as defined in the Chiropractic Chapter,
does not include acupuncture. The Board cannot simply “make” chiropractic
include acupuncture by purportedly limiting acupuncture to a statutory scope that
does not include acupuncture in the first place.
In sum, because the Chiropractic Chapter unambiguously prohibits
chiropractors from using needles (except for diagnostic blood draws) and limits
chiropractic to treatment of the musculoskeletal system, and chiropractic and
acupuncture are entirely separate healthcare professions with discreet enabling
statutes, the Chiropractic Board exceeded its statutory authority in adopting, and
later amending, rules authorizing chiropractors to practice acupuncture. The Court
should render judgment for the Association and declare the rules invalid.
27 C. The Chiropractic Board’s interpretation of the Acupuncture Chapter as indirectly expanding the scope of chiropractic is entitled to no deference because it is unreasonable.
1. The Chiropractic Board’s interpretation contravenes the regulatory purpose of occupational statutes and creates a public health risk. The Chiropractic Board’s interpretation of its scope of practice statute is
entitled to no deference because it contravenes the purpose of the Occupation
Code’s regulation of healthcare professions and creates a public health risk. The
purpose of healthcare regulations is to protect public health and safety. Tex. State
Bd. of Barber Exam’rs v. Beaumont Barber College, Inc., 454 S.W.2d 729, 731
(Tex. 1970). This is why each chapter of the Occupations Code, including the
Acupuncture and Chiropractic Chapters, sets forth specific educational and training
requirements for a person to become licensed to perform a particular profession.
But by authorizing chiropractors to practice acupuncture without completing the
education and training requirements statutorily required for acupuncture, the
Chiropractic Board controverts the purpose of the Acupuncture Chapter and
creates a public health risk. Tex. Med. Ass’n, 375 S.W.3d at 474.
For acupuncturists licensed by the Acupuncture Board under the
Acupuncture Chapter:
28 • Acupuncturists are statutorily required to complete an intensive course of study to lawfully practice acupuncture. Before an acupuncturist may become licensed to practice acupuncture, a prospective licensee must complete at least 1,800 instructional hours from an accredited acupuncture school and satisfy at least two terms of a resident course of clinical instruction (although, as explained below, Acupuncture Board rules require acupuncture education to far exceed these statutory minimums). See TEX. OCC. CODE §§ 205.203, 205.206; 22 TEX. ADMIN. CODE § 183.4. 31
• An applicant must attend an acupuncture school that is accredited or is a candidate for accreditation by the Accreditation Commission for Acupuncture and Oriental Medicine (“ACAOM”). See 22 TEX. ADMIN. CODE §§ 183.2(2), 183.4(a)(4). ACAOM requires a minimum of four years of oriental medicine and acupuncture study (a minimum of 146 semester credits or 2,625 hours, including 870 hours of clinical training). 32 All three acupuncture schools in Texas exceed these 33 minimum requirements.
• An applicant must have passed the Council of Colleges of Acupuncture and Oriental Medicine Clean Needle Technique course and practical examination. See id. § 184.4(a)(6). 34
31 The Acupuncture Board’s rules establishing education and training requirements are attached as App. E. 32 See ACAOM Accreditation Manual, at 26, available at http://www.acaom.org/documents/accreditation_manual_712.pdf. 33 See AOMA Graduate School of Integrative Medicine, Graduate Program Catalog 2014-2015, at 15, available at http://aoma.edu/assets/uploads/files/AOMA_MAcOM_2014-15-w.pdf; Texas Health and Science University, Masters of Science in Acupuncture and Oriental Medicine Curriculum, available at http://www.thsu.edu/our-programs/ms-aom-curriculum/; American College of Acupuncture and Oriental Medicine, 2015-2016 Catalog, at 16-18, available at http://acaom.edu/attachments/Catalog.pdf. 34 See Council of Colleges of Acupuncture and Oriental Medicine Clean Needle Technique Manual, Best Practices for Acupuncture Needle Safety and Related Procedures (2015), available at http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf.
29 • An applicant must sit for the full series of National Certification Commission for Acupuncture and Oriental Medicine (“NCCAOM”) examinations, the requirements of which parallel ACAOM program 35 criteria. See 22 TEX. ADMIN. CODE §§ 183.2(19), 183.4(a)(5), (6).
• Acupuncturists must complete seventeen hours of continuing education each year to enhance the licensee’s acupuncture knowledge, skills, and competence. This includes training in acupuncture, herbology, biomedicine, and ethics. TEX. OCC. CODE § 205.255; 22 TEX. ADMIN. CODE § 183.20.
In contrast, the Chiropractic Chapter does not include any statutorily
approved training or education requirements for chiropractors to practice
acupuncture—because it does not authorize chiropractors to practice acupuncture.
Rather, by rule, the Chiropractic Board has created a lackluster regime of
questionable education and credentialing requirements:
• Chiropractors must only complete a meager 100 hours of acupuncture education and training to practice the procedure, with no specifications as to the content of that training and no clinical training requirement—grossly inadequate as compared to the course of study mandated in the Acupuncture Chapter and Acupuncture Board rules. See 22 TEX. ADMIN. CODE § 78.14. 36
35 See National Certification Commission of Acupuncture and Oriental Medicine Eligibility Requirements, available at http://www.nccaom.org/applicants/eligibility-requirements. 36 CR 248-49l see also generally NBCE, Acupuncture Examination, available at http://mynbce.org/wp-content/uploads/2015/07/acu_2015.pdf. The Chiropractic Board denied at the trial court that chiropractors may complete the 100 hours of instruction without a clinical component because “no course without clinical instruction has been approved by the Board.” CR 249-50. Yet Parker University is a chiropractic college approved by the Board for providing acupuncture training, and it does not require any clinical training in acupuncture. See Texas Board of Chiropractic Examiners meeting on acupuncture, July 11, 2012, at 2:04-2:07, available at http://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3; see also Parker University, Texas State Board Approvals, available at http://ce.parker.edu/state-board-approvals/texas/.
30 • Effective January 1, 2010, a chiropractor must successfully complete either the standardized certification examination in acupuncture offered by the National Board of Chiropractic Examiners (“NBCE”) or the examination offered by the NCCAOM to practice acupuncture. Id. § 78.14(d). As explained above, the NCCAOM examination is the examination required by the Acupuncture Board to become a licensed acupuncturist and requires at least 2,625 hours of training, but the NBCE examination requires a mere 100 hours of classroom instruction. 37
• The 100 hours of acupuncture instruction used to qualify for NBCE certification in acupuncture is typically taught as continuing education, not as for-credit coursework that is part of any degree program or core curriculum. 38 The 100-hour “continuing education” course in acupuncture may be taken while still training in chiropractic—thus allowing students of chiropractic to learn an entirely new discipline before even having completed the foundational chiropractic curriculum. 39 Further, nothing prohibits chiropractors from completing most of the course online. See id. § 78.14. 40
• Chiropractors need not complete any continuing education in acupuncture. 41 Id.
Importantly, removing chiropractors from the licensing requirements of the
Acupuncture Board also removes them from the Acupuncture Board’s oversight.
And the Chiropractic Board has admitted that it is not regulating the practice of
37 See NBCE, Acupuncture Examination, at 3, available at http://mynbce.org/wp- content/uploads/2015/07/acu_2015.pdf. 38 For instance, at Parker University, the acupuncture course is a continuing education course. See Parker University Continuing Education, Acupuncture Program–Basic, available at http://ce.parker.edu/programs/acupuncture-program-basic/. 39 See id. (allowing chiropractic students to enroll in the program). 40 CR 248-49. 41 CR 250.
31 acupuncture by chiropractors. 42 The Chiropractic Board does not require
chiropractors to receive a certificate or license endorsement from the Board to
practice acupuncture. Id. It also does not track how many chiropractors, and which
chiropractors, are practicing acupuncture and whether these chiropractors have
completed the Board’s minimal acupuncture training requirements. 43 The
Chiropractic Board has instead advised its licensees that it trusts that chiropractors
will “exercise reasonable care of the safety of patients” and has warned that any
chiropractor who performs acupuncture without training “does so at his or her own 44 risk.” As the Sunset Advisory Committee has observed, the Chiropractic Board’s
position appears to be buyer beware: the Board declines to regulate the practice of
acupuncture by chiropractors while simultaneously authorizing them to perform
the procedure. 45
42 CR 249-51. 43 CR 249-51, 253. At the summary judgment hearing, the Chiropractic Board’s counsel did not know the number either: “We have evidence that over 1,400—over 1,000—the number is not 100 percent clear—over 1,000 chiropractors in Texas do practice acupuncture as a part of their practice.” Reporter’s Record (“RR”) 18. 44 CR 284. At the summary judgment hearing, the Chiropractic Board’s counsel confirmed that this is the Chiropractic Board’s stance: “We think chiropractors are responsible. They are going to practice their profession in a safe way. If they think they need more than 100 hours of training in order to incorporate acupuncture into their practice, they are going to receive that additional training.” RR 28. And “we would think that a chiropractor who is incorporating acupuncture into his practice is going to seek continuing education. It’s just not specifically required to be within that particular scope. But it’s up to each individual chiropractor to ensure that they are practicing their profession in a safe and effective manner.” RR 29. 45 CR 577.
32 The consequence of the Chiropractic Board’s construction of the
Chiropractic Chapter (and the one word it latches onto in the Acupuncture
Chapter) is a potential threat to public safety and health. Chiropractors lack the
education and training the Legislature has determined are statutorily required for
the safe performance of acupuncture, and those under-trained practitioners are not
subject to oversight by either the Acupuncture Board or the Chiropractic Board.
See TEX. OCC. CODE §§ 205.203, 205.206; see also Andrews v. Ballard, 498 F.
Supp. 1038, 1054 (S.D. Tex. 1980) (“An acupuncture needle in unskilled hands
can cause serious damage.”); Commonwealth v. Schatzberg, 371 A.2d 544, 547
(Pa. Cmwlth. 1977) (chiropractors should not practice acupuncture because
“acupuncture can cause immediate and serious medical problems”); 46 see also City
of Houston v. Clark, 197 S.W.3d 314, 318 (Tex. 2006) (in construing a statute, a
court should consider the consequences of a particular construction).
46 See also National Institute of Health’s National Center for Complementary and Integrative Health, Acupuncture: What You Need to Know, available at https://nccih.nih.gov/health/acupuncture/introduction#hed4 (advising that acupuncture is safe when performed by experienced, well-trained practitioners, but can cause serious side effects when improperly performed).
33 2. It is unreasonable for the Chiropractic Board to rely on another profession’s scope of practice statute to allow its practitioners to practice a procedure that is prohibited under the Chiropractic Chapter.
a. The Chiropractic Board has impermissibly latched onto one word (“nonincisive”) in the Acupuncture Chapter to redefine its own scope of practice. One of the fundamental principles of administrative law is that because an
agency is a creature of the Legislature, the agency only has the powers expressly
stated in its governing statute. State Agencies v. R.R. Comm’n of Tex., 421 S.W.3d
690, 699 (Tex. App.—Austin 2014, no pet.). The agency may not create or
exercise what really amounts to a new or additional power. Id. And while an
agency possesses some implied powers that are necessary to fulfill its express
functions, it may not, “through the guise of implied powers, exercise what is
effectively a new power, or a power contrary to a statute.” Id.
In the face of an unambiguous prohibition in the Chiropractic Chapter
against the use of needles, the Chiropractic Board has pursued an indirect route in
its crusade to allow chiropractors to insert needles into patients without adequate
training or oversight. The Board has inventively latched onto the definition of
acupuncture as the “nonincisive” insertion of acupuncture needles in the
Acupuncture Chapter to create an exception to the Chiropractic Chapter’s
prohibition against needle use. And the Chiropractic Board has contended that the
amendment to the Acupuncture Chapter’s definition of acupuncture was intended
34 to create a “carve out” from that chapter so that chiropractors could practice
acupuncture without a license from or oversight by the Acupuncture Board. This is
patently unreasonable. But even if that was the Legislature’s intent, the Legislature
failed to accomplish this purpose. Nothing in the Chiropractic Chapter authorizes
the Chiropractic Board to use a definition in another chapter of the Occupations
Code to evade the plain limitations of its scope of practice statute. And there is no
authority supporting that a regulatory body may exempt its licensees from
obtaining a license to perform a medical profession regulated by another state
board.
There are several reasons the Chiropractic Board’s novel theory fails. First,
chiropractors and the public would be precluded from determining the “real” scope
of chiropractic by consulting the Chiropractic Chapter. Instead, they would be
required to review the entire Occupations Code—and guess which parts also apply
to chiropractic. And it would not be enough to read the Occupations Code. As
discussed in the next section, because the Chiropractic Board primarily relies on
legislative debate in the enactment of Senate Bill 361 to support its unreasonable
interpretation, a person would also need to review legislative history, including
legislative debate, to glean what “chiropractic” actually is.
Second, condoning one of the Chiropractic Board’s many attempts at
statutory manipulation would defeat an important purpose of occupational
35 statutes—to put the public on notice of the permissible scope of a professional’s
practice and to protect the integrity of medical professions. Chiropractors are
prohibited from claiming to practice a profession they are not licensed to practice.
In Brooks v. Texas Medical Board, the Court recently concluded that because a
chiropractor’s website suggested that her practice was not limited to the evaluation
of the biomechanical condition of the spine and musculoskeletal system (i.e., the
practice of chiropractic), she was engaging in the unlicensed practice of medicine.
No. 03-14-00239-CV, 2015 WL 3827327, at *1, 5 (Tex. App.—Austin June 18,
2015, no pet. h.). In so holding, the Court adopted the Medical Board’s rationale
that “the lay public would be confused about the scope of her practice if she
omitted words defining chiropractic treatment, such as ‘spinal’ or
‘musculoskeletal,’ from her website.” Id. at *4.
The same rationale applies here. If a chiropractor cannot advertise that he
performs a procedure that is not truly “chiropractic,” then surely a chiropractor
cannot perform the procedure without a license from the agency that regulates the
procedure. See Tex. State Bd. of Public Accountancy v. Fulcher, 515 S.W.2d 950,
954 (Tex. Civ. App.—Corpus Christi 1974, writ ref’d n.r.e.) (statutes regulating
the practice of professions are necessary to ensure practitioners possess the
“requisite degree of skill in learning in professions which affect the public” to
protect the public “against fraud [and] deception as the consequence of ignorance
36 and incompetence”). The Court should not sanction the Chiropractic Board’s fast
and loose interpretation of the Chiropractic and Acupuncture Chapters, nor allow
the Board to devalue the profession of acupuncture in this manner.
b. Legislative history supports that the amendment to the definition of acupuncture in the Acupuncture Chapter did not grant the Chiropractic Board the authority to regulate acupuncture. To support its stance that the amendment to the definition of acupuncture in
the Acupuncture Chapter was intended to allow chiropractors to practice
acupuncture without a license from or oversight by the Acupuncture Board, the
Chiropractic Board has heavily relied on comments made by an individual
legislator (Representative Gray) in committee during Senate Bill 361’s debate. The
Court should not be persuaded.
It is well-established that comments and testimony by members of the
Legislature do not evince legislative intent. As the Texas Supreme Court has
repeatedly counseled, “a single statement by a single legislator does not evidence
legislative intent and does not determine legislative intent.” Robinson v. Crown
Cork & Seal Co., Inc., 335 S.W.3d 126, 191-92 (Tex. 2010); see also AT&T
Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co., 186 S.W.3d 528-29 (Tex. 2006). “The
Legislature does not speak through individuals—even its members—in committee
hearings, in bill analyses and reports, in legislative debate, or in pre- and post-
enactment commentary; it speaks through its enactments.” Entergy Gulf States,
37 Inc. v. Summers, 282 S.W.3d 433, 447 (Tex. 2009) (Hecht, J., concurring). Further,
it is inappropriate to look to legislative history when statutory text is unambiguous.
City of Round Rock v. Rodriguez, 399 S.W.3d 130, 137 (Tex. 2013).
Regardless, legislative history, including Representative Gray’s comments,
nonetheless counsels the opposite of what the Chiropractic Board asserts. The
Legislature has repeatedly declined to enact legislation authorizing chiropractors to
practice acupuncture under regulation by the Chiropractic Board. Before 1995, the
Chiropractic Chapter did not expressly prohibit chiropractors from performing
procedures involving needles, leading to disputes about whether those sorts of
practices were within the statutory scope of chiropractic. See Tex. Med. Ass’n, 375
S.W.3d at 469. To resolve those disputes, in 1995, the Legislature amended the
Chiropractic Chapter to explicitly prohibit chiropractors from performing “incisive,
surgical” procedures (with the exception of using needles for diagnostic blood
draws). See id. The impetus of this change was a floor amendment offered by
Representative Uher that contained the current limitation on nonincisive
procedures, but with broad exceptions for needle use, including for acupuncture
and needle EMG. Id. n.7. His amendment, however, was amended by
Representative Janek to strip these exceptions from the bill, leaving the narrow
exception for diagnostic blood draws. Id. When presenting this amendment,
Representative Janek stated that “[t]his amendment would take out any ability by
38 the chiropractors to put needles into people.” Id. Representative Uher’s amendment
was ultimately adopted, but as circumscribed by Representative Janek’s
amendment.
The next session, Representative Gray attempted to amend Senate Bill 361
(the Acupuncture Board’s sunset bill) to expressly authorize chiropractors to
practice acupuncture, but these amendments were stripped from the bill before 47 enactment because they were not germane. Instead, as ultimately enacted, the
Acupuncture Chapter was amended to define acupuncture as “nonincisive.” See
Act of May 29, 1997, 75th Leg., R.S., ch. 1170, § 1. Since Senate Bill 361’s
enactment, there has been further attempt to amend the Chiropractic Chapter to
authorize chiropractors to practice acupuncture under regulation by the
Chiropractic Board—and this legislation also failed to pass. See Tex. S.B. 1601,
82nd Leg., R.S. (2011).
Thus, the Legislature has repeatedly rejected attempts to amend the
Chiropractic Chapter to include acupuncture within the scope of chiropractic, and
“[n]o court could justify putting into a statute by implication what both Houses of
the Legislature had expressly rejected by decisive votes.” Grasso v. Cannon Ball
Motor Freight Lines, 81 S.W.2d 482, 485 (Tex. Com. App. 1935); see also Tex.
47 See supra, pp. 9-10.
39 Water Comm’n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 23 (Tex. 1996)
(“courts should decline to infer a limitation in a statute that the Legislature has
explicitly rejected”); Transp. Ins. Co. v. Maksyn, 580 S.W.2d 334, 338 (Tex. 1979)
(“Courts should be slow to put back that which the Legislature has rejected.”).
Further, Representative Gray’s proposed amendments to the Chiropractic
Chapter in Senate Bill 361 to authorize chiropractors to practice acupuncture
without a license from the Acupuncture Board were stricken on points of order
because the amendments were not germane to the subject of the bill. The
Legislature’s germaneness rules mirror the Texas Constitution’s prohibition on
legislation containing more than one subject. Compare, e.g., Texas House Rules
for the 84th Legislature, Rule 4, § 41, and Rule 11, § 2, with TEX. CONST. art. III,
§ 35(a). As explained in Part II.B below, the fact that the Legislature could not
constitutionally authorize chiropractors to practice acupuncture in the Acupuncture
Board’s sunset bill negates any argument that the sunset bill’s change in the
definition of acupuncture impacted the practice of acupuncture by chiropractors.
“The Legislature cannot do by indirection what it cannot do directly.” See West
40 Orange-Cove Consol. Indep. Sch. Dist. v. Alanis, 107 S.W.3d 558, 600 (Tex. 2003)
(quoting Jernigan v. Finley, 38 S.W. 24, 26 (Tex. 1896)). 48
Finally, Representative Gray’s statements that the Chiropractic Board has
relied on for support actually undermine the Board’s argument. Representative
Gray acknowledged during committee debate on Senate Bill 361 that amending the
definition of acupuncture in the Acupuncture Chapter would not enable
chiropractors to practice acupuncture without a license from the Acupuncture
Board. She explained that:
The Senate bill included language that put [the practice of acupuncture by chiropractors] under the Acupuncture Board. … What the [House’s] amendments would do is put [the practice of acupuncture by chiropractors] under the Chiropractic Board but with certain guidelines. … [An amendment authorizing chiropractors to practice acupuncture] needs to be in the practice act as it relates to chiropractors and not [ ] under the Board of Acupuncture 49 Examiners.
48 The Chiropractic Board’s counsel stated at the summary judgment hearing that the Chiropractic Board’s position is that Senate Bill 361 authorized chiropractors to practice acupuncture without a license through the “back door” because “it was not as easy, politically” to directly authorize them to do so. RR 40. 49 CR 478-80, 483.
41 Thus, post-Senate Bill 361, chiropractors practicing acupuncture must still obtain a
license from the Acupuncture Board and remain within the oversight of that
agency. 50
c. The Court should decline to read the Acupuncture Chapter and Chiropractic Chapter in pari materia to create an exemption for acupuncture in the Chiropractic Chapter.
The Chiropractic Board has also attempted to utilize the doctrine of “in pari
materia” to justify using the definition of acupuncture in the Acupuncture Chapter
to inform the scope of the practice of chiropractic in the Chiropractic Chapter.
Extrinsic tools of statutory construction are not available when a statute is
unambiguous. Greater Houston P’ship, 2015 WL 3978138, at 5. But even if the
Court believes the relevant statutes are ambiguous, the Court should decline to use
this tool.
First, the doctrine of in pari materia is inapplicable. Texas Government
Code, Section 311.026(b) codified this common-law doctrine, and the statute only
applies if a conflict between statutes is irreconcilable. Abbott, 391 S.W.3d at 348.
While it is true that courts read conflicting statutes together to harmonize them,
there is no conflict here. See Rodriguez v. Tex. Workforce Comm’n, 986 S.W.2d
781, 783 (Tex. App.—Corpus Christi 1999, pet. denied). One does not need to read
50 Indeed, there are chiropractors who are dually licensed by the Chiropractic and Acupuncture Boards and therefore lawfully practice acupuncture.
42 the Acupuncture Chapter to determine the scope of chiropractic since that scope is
found solely in the Chiropractic Chapter. Thus, not only are the two chapters not
“irreconcilable,” there is no conflict at all because each chapter discreetly applies
to a different profession.
Second, for two statutes that do not reference each other to be in pari
materia, they must have been enacted with the same object or purpose in mind.
See, e.g., Nat’l Media Corp. v. City of Austin, No. 03-12-00188-CV, 2014 WL
4364815, at *2 (Tex. App.—Austin Aug. 27, 2014, no pet.); Abbott, 391 S.W.3d at
348; Howlett v. Tarrant Cnty., 301 S.W.3d 840, 846 (Tex. App.—Fort Worth
2009, pet. denied). “The adventitious occurrence of like or similar phrases, or even
of similar subject matters, in laws enacted for wholly different ends will not justify
applying the doctrine.” Abbott, 391 S.W.3d at 349; see also In re JMR, 149 S.W.3d
239, 292 (Tex. App.—Austin 2004, no pet.). To determine whether two statutes
share a common purpose, courts must consider whether the statutes were clearly
written to achieve the same objectives. See In re JMR, 149 S.W.3d at 292-94
(emphasis added); Abbott, 391 S.W.3d at 350. And if two statutes were enacted
“many years apart for different purposes and objectives,” they are not to be read in
pari materia. DLB Architects, P.C. v. Weaver, 305 S.W.3d 407, 410 (Tex. App.—
Dallas 2010, pet. denied).
43 Based on these principles, this Court has refused to read in pari materia
separate statutory or regulatory provisions that do not clearly share the same
purpose. See In re JMR, 149 S.W.3d at 294 (trespass statute in the Penal Code and
trespass statute in the Education Code could not be read in pari materia because
one was intended to protect a property interest while the other was intended to
protect the safety of those on school grounds); National Media Corp., 2014 WL
4364815, at *1-2 (City’s Zoning Code and Sign Regulations Code could not be
read in pari materia since they did not touch on the same subject, have the same
purpose, or relate to the same objective); Abbott, 391 S.W.3d at 347-49 (statutory
provisions regarding patient confidentiality did not share the same purpose as
provisions concerning the confidentiality of Chiropractic Board investigations and
so could not be read in pari materia).
As in these cases, the legislation limiting chiropractic to “nonincisive”
procedures, and the later legislation limiting acupuncture to “nonincisive” needle
insertion, did not share the same object or purpose, nor were they enacted during
the same legislative session. To the contrary, the legislation limiting chiropractic to
nonincisive procedures (except for diagnostic blood draws) was enacted to prohibit
chiropractors from performing procedures involving needles. See Tex. Med. Ass’n,
375 S.W.3d at 469 n.7, 477-78. The legislation limiting acupuncture to the
nonincisive insertion of an acupuncture needle was enacted as part of the
44 Acupuncture Board’s sunset bill—not as part of any legislation concerning
chiropractic. The Chiropractic Board may not apply an amendment to the
Acupuncture Chapter to end-run the Chiropractic Chapter’s prohibition against
needle use.
D. The Chiropractic Board’s interpretation of the Acupuncture Chapter is entitled to no deference because the Chiropractic Board’s expertise is chiropractic, not acupuncture. Because the Chiropractic Board’s expertise is chiropractic (not acupuncture),
its interpretation of the Acupuncture Chapter is entitled to no deference. Rogers,
390 S.W.3d at 384. To defer to the Chiropractic Board’s construction would be
akin to deferring to a conclusion by the Acupuncture Board that acupuncturists
may practice nursing or physical therapy without a license from the relevant
occupational board or the intensive education and training required for the practice.
Further, notably, the agencies that do possess expertise about the scope of the
practice of acupuncture—the Acupuncture Board and the Texas Medical Board
(which oversees the Acupuncture Board)—believe that the Acupuncture Chapter
does not broaden the scope of the practice of chiropractic to include acupuncture.
See Tex. Med. Ass’n, 375 S.W.3d at 477-78. 51 If the Court is going to grant
deference, it should defer to those agencies, not the Chiropractic Board.
51 See also CR 401-02, 408-13, 762-64. The Attorney General declined to accept the Acupuncture Board’s 2013 request for opinion due to the Texas Medical Association litigation.
45 E. The Chiropractic Board’s rules are invalid because they impermissibly allow chiropractors to practice acupuncture in violation of the Acupuncture Chapter. The Chiropractic Board’s rules are also invalid because they unlawfully
authorize chiropractors to practice acupuncture in violation of the Acupuncture
Chapter. To practice acupuncture, a person must hold a license issued by the
Acupuncture Board. See TEX. OCC. CODE § 205.201. The Acupuncture Chapter
specifically mandates that “a person may not practice acupuncture in this state
unless the person holds a license to practice acupuncture issued by the acupuncture
board under this chapter.” Id. § 205.201 (emphasis added). The only exception is
for healthcare professionals licensed under another statute of this state and acting
within the scope of the license. See id. § 205.003(a) (emphasis added).
Thus, the only way a chiropractor is exempt from the requirements of the
Acupuncture Chapter is if the chiropractor is practicing within the scope of
chiropractic as defined in the chiropractor’s licensing statute: the Chiropractic
Chapter. Under the express terms of the Chiropractic Chapter, chiropractors are
prohibited from performing procedures involving needles, save for diagnostic
blood draws, and are limited to treating the musculoskeletal portion of the body.
See id. § 201.002. Within the scope of their licensing statute, chiropractors may not
practice acupuncture—which by its statutory definition requires the use of needles
and treats the entire body. Id. § 205.001(2).
46 F. The rules are invalid because they authorize chiropractors to engage in the unauthorized practice of medicine. The Chiropractic Board’s rules also authorize chiropractors to engage in the
unauthorized practice of medicine. Historically, only physicians could perform
most medical procedures, including chiropractic and acupuncture. See Thompson v.
Tex. State Bd. of Med. Exam’rs, 570 S.W.2d 123, 130 (Tex. App.—Tyler 1978,
writ refused n.r.e.); Teem v. State, 183 S.W. 1144, 1147-48 (Tex. Crim. App.
1916). Over time, the Legislature exempted various healthcare professionals,
including chiropractors, from adhering to the requirements of the Medical Practice
Act. But the Legislature has never severed the practice of acupuncture from its
historical roots as a practice of medicine under the authority of the Texas Medical
Board. See, e.g., Andrews, 498 F. Supp. at 1039-40. As a result, acupuncturists
continue to be subject to the supervision of the Texas Medical Board, though with
separate licensing requirements, and are not fully excluded from the scope of the
Medical Practice Act. See, e.g., TEX. OCC. CODE §§ 151.052, 205.101. Other states
similarly have historically considered acupuncture to constitute the practice of
medicine. See, e.g., People v. Roos, 514 N.E.2d 993, 996 (Ill. 1987). And many
courts—including in Texas—have held that a chiropractor’s practice of
acupuncture constitutes the unauthorized practice of medicine. See Kelley v.
Raguckas, 270 N.W.2d 665, 625-26 (Mich. App. 1978); Schatzberg, 371 A.2d at
46-47; State v. Rich, 339 N.E.2d 630, 197 (Ohio 1975); State v. Won, 528 P.2d
47 594, 595-96 (Ore. App. 1974); Ex parte Halsted, 182 S.W.2d 479, 485 (Tex. Crim.
App. 1944).
The Medical Practice Act excludes chiropractors from its scope and
requirements, but only to the extent chiropractors are engaged strictly in the
practice of chiropractic. See TEX. OCC. CODE §§ 151.002(13), 151.052; Tex.
Orthopaedic Ass’n, 254 S.W.3d at 717. “When engaged strictly in the practice of
chiropractic as defined by law, a licensed chiropractor is not engaging in the
unlicensed practice of medicine. But to the extent that a chiropractor exceeds the
statutory scope of chiropractic, she would subject herself to the Medical Practice
Act—and practice medicine unlawfully.” Brooks, 2015 WL 3827327, at *2.
This Court has refused to allow an occupational board to adopt rules that
have the effect of allowing non-physician healthcare professionals to engage in the
unauthorized practice of medicine. For example, in Texas Orthopaedic
Association, the Court concluded that a rule adopted by the Texas State Board of
Podiatric Medical Examiners exceeded the statutory scope of podiatry because it
allowed podiatrists to treat parts of the body above the foot that were outside the
scope of podiatry training. Id. at 721. Consequently, the Court held that the rule
authorized podiatrists to engage in the unauthorized practice of medicine because
they were treating parts of the body “outside the traditional scope of podiatry
without satisfying the requirements of the Medical Practice Act.” Id. The rule
48 exceeded the limited exemption from the Medical Practice Act by allowing
podiatrists to engage in acts that were not strictly the practice of podiatry. Id.
Similarly, the Court has concluded that chiropractors were engaged in the
unauthorized practice of medicine by performing needle EMG, see Tex. Med.
Ass’n, 375 S.W.3d at 497, and by claiming to treat medical conditions like autism
that are not limited to the biomechanical condition of the spine or musculoskeletal
system, Brooks, 2015 WL 3827327, at *1, 5. The rules challenged in this lawsuit
likewise authorize chiropractors to engage in a practice that is not strictly the
practice of chiropractic and therefore are beyond the limited exception granted to
them by the Medical Practice Act.
For all of these reasons, the Chiropractic Board’s rules authorizing
chiropractors to practice acupuncture are invalid. The Court should reverse and
render judgment for the Association.
II. Alternatively, the statutory scheme purportedly authorizing chiropractors to practice acupuncture violates the Texas Constitution because the Legislature may not favor one school of medicine over another nor enact legislation containing more than one subject. In the alternative, the Association requests that the Court reverse and render
judgment for the Association and declare that (1) the statutory scheme purportedly
authorizing chiropractors to practice acupuncture with significantly less education
49 or training in acupuncture than acupuncturists is invalid in violation of Texas
Constitution, Article XVI, Section 31; and (2) Senate Bill 361 violated the one-
subject rule in Texas Constitution, Article III, Section 35(a). See TEX. CIV. PRAC.
& REM. CODE §§ 37.004, 37.006; Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618,
622 (Tex. 2011) (per curiam).
A. The statutory scheme purportedly authorizing chiropractors to practice acupuncture with significantly less education and training in acupuncture than licensed acupuncturists violates Texas Constitution, Article XVI, Section 31. The Texas Constitution broadly states: “The Legislature may pass laws
prescribing the qualifications of practitioners of medicine in this State, and to
punish persons for mal-practice, but no preference shall ever be given by law to
any schools of medicine.” See TEX. CONST. art. XVI, § 31 (emphasis added).
Texas courts have interpreted this provision to prohibit the Legislature from
unfairly and arbitrarily “preferring” one branch of medicine over another by
allowing one category of healthcare professionals to obtain licenses with less
burdensome conditions. See, e.g., Schlichting v. Tex. State Bd. of Medical Exam.,
310 S.W.2d 557, 564 (Tex. 1958); Wilson v. State Bd. of Naturopathic Examiners,
298 S.W.2d 946, 948-50 (Tex. Civ. App.—Austin 1957, writ ref’d n.r.e.).
In Schlichting, the Texas Supreme Court held that to allow one school of
medicine to be licensed on easier terms than those required for a similar practice of
medicine would violate article XVI, section 31. Id. at 564. And the violation is
50 even more obvious when one group is allowed to practice without any license at
all, while practitioners of a similar form of medicine must be licensed on onerous
conditions. Id.; see also Wilson, 298 S.W.2d at 949-50.
Indeed, the Court of Criminal Appeals has held that a broad interpretation of
the scope of chiropractic would violate this provision of the Constitution. The
Court considered the chiropractic statute in effect at that time and concluded:
Assuming, then, that under the Act before us, the Legislature has set up, recognized, and defined chiropractic as a system, means, and method for the treatment of diseases and disorders of the human body, and that practitioners thereof are authorized to treat, by chiropractic, patients for diseases and disorders, it is evident that the Legislature has preferred such science and such practitioners over all others engaged in doing the same thing, that is, in treating the human body for diseases and disorders, because the chiropractor is not required to have the same educational qualifications, nor is he required, as a condition precedent to his right to so treat patients, to pass a satisfactory examination upon the same subjects that are required of all others similarly situated.
Ex parte Halsted, 182 SW.2d at 487 (emphasis added).
Of course, as the Chiropractic Board argued at the trial court, this
constitutional provision is not applicable when chiropractors are strictly practicing
chiropractic because they are then not “practicing medicine.” TEX. OCC. CODE §§
151.002(13), 151.052; George D. Braden et al., The Constitution of the State of
Texas: An Annotated and Comparative Analysis, at 768 (1977). But if a
chiropractor does not practice in this strict manner, she is not only engaged in the
51 practice of medicine, but the unauthorized practice of medicine. See, e.g., Tex. 52 Orthopaedic Ass’n, 254 S.W.3d at 717, 721.
Here, the Acupuncture Chapter requires acupuncturists to complete
significant education and training in acupuncture in order to practice the procedure.
See TEX. OCC. CODE §§ 205.203, .206, .255. In contrast, if the Legislature has
allowed chiropractors to practice acupuncture, it has done so without requiring
them to complete any education or training in acupuncture. Under this statutory
scheme, the Legislature unconstitutionally prefers chiropractic over acupuncture.
B. The legislation that purportedly authorized chiropractors to practice acupuncture violates the one-subject rule in Texas Constitution, Article III, Section 35(a). The Texas Constitution prohibits the Legislature from enacting a bill that
contains more than one subject. TEX. CONST. art. III, § 35(a). For a bill to pass
muster, its provisions must relate, directly or indirectly, to the same subject and
have a mutual connection. LeCroy v. Hanlon, 713 S.W.2d 335, 337 (Tex. 1986);
Jessen Assocs., Inc. v. Bullock, 531 S.W.2d 593, 601 (Tex. 1976); C. Hayman
Constr. Co. v. Am. Indem. Co., 471 S.W.2d 564, 566 (Tex. 1971). In other words,
to be valid, a provision must be germane to the subject of the bill. Jessen Assocs.,
52 As explained previously, acupuncture treats any condition in the entire body and is not expressly severed from the Medical Practice Act as a practice of medicine, and the Acupuncture Board operates under the supervision of the Texas Medical Board. See, e.g., TEX. OCC. CODE §§ 151.052, 205.001(2), .101; Andrews, 498 F. Supp. at 1039-40.
52 531 S.W.2d at 601. As specific to amendments to a bill, to be germane, the subject
matter of an amendment must be reasonably related to the content of the original
act. Sommermeyer v. State, 713 S.W.2d 183, 184-85 (Tex. App.—Houston [14th
Dist.] 1986, pet. ref’d). The policy reason behind the one-subject rule is:
[I]f the provisions of the law or section to be amended involve a subject different from that actually dealt with in the body of the amending act, a reading of the former will not disclose to the reader the true subject of the amending act but, on the contrary, will mislead him as to the latter.
Bd. of Water Eng’gs v. City of San Antonio, 283 S.W.2d 722, 727 (Tex. 1955).
Senate Bill 361 was the Acupuncture Board’s sunset bill. It related to the
Acupuncture Board’s continuation and functions, as plainly indicated from the
bill’s caption and its content. If the bill additionally expanded the scope of the
practice of chiropractic, it violated the one-subject rule because it embraced two
subjects: the continuation and function of the Acupuncture Board and the statutory
scope of the practice of chiropractic.
During Senate Bill 361’s journey through the Legislature, the bill amended
the Chiropractic Chapter’s scope of practice provision to authorize chiropractors to
practice acupuncture. See Part I.C.2.b, supra. But on the House floor, those
provisions were challenged and ultimately struck from the bill on germaneness
grounds because the chiropractic scope of practice has no relationship or
connection to the functions of the Acupuncture Board. The Legislature could not
53 have expressly authorized chiropractors to practice acupuncture without violating
the one-subject rule—and it cannot do indirectly what it could not do directly. West
Orange-Cove, 107 S.W.3d at 600. Thus, if the amendment to the Acupuncture
Chapter authorizes chiropractors to practice acupuncture, it rendered that portion of
the bill unconstitutional.
III. The Chiropractic Board’s statute of limitations defense fails as a matter of law. In its summary judgment motion, the Chiropractic Board urged that the
Association’s challenge is time-barred under the residual statute of limitations
found in the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.
CODE § 16.051. But as the Chiropractic Board acknowledged, no court has applied
the residual statute of limitations to a declaratory judgment action challenging the
validity of agency rules. Adopting the Chiropractic Board’s novel argument would
be a sea change in how Texas courts resolve allegations that an agency is
overstepping its statutory authority. And it would thwart the very purpose of the
statutory scheme the Chiropractic Board seeks to continue to violate.
The Chiropractic Board urges that because it has for more than four years
illegally authorized chiropractors to practice acupuncture, it can continue to exceed
its statutory authority and violate Texas law, daily and with impunity. This is not
the law in Texas. In 2012, in Texas Medical Association, this Court invalidated the
54 Chiropractic Board’s rules allowing chiropractors to perform needle EMG and
MUA—despite that the Chiropractic Board had been authorizing chiropractors to 53 practice needle EMG and MUA since at least the 1980s. 375 S.W.3d at 469, 481,
488. Likewise, in Texas Association of Psychological Associates v. Texas State
Board for Examiners of Psychologists, the Court reviewed whether the Psychology
Board’s rules exceeded its statutory authority—despite that the challenged rules
had been adopted more than four years earlier. 439 S.W.3d 597, 600-02 (Tex.
App.—Austin 2014, no pet.). And in Texas State Board of Examiners of Marriage
& Family Therapists v. Texas Medical Association, the Court reviewed and
affirmed a trial court judgment invalidating a rule that had been adopted in 1994.
458 S.W.3d 552, 554 (Tex. App.—Austin 2014, pet. filed).
The residual statute of limitations should not be applied as urged by the
Chiropractic Board because limitations cannot be used to defeat the legislative
intent of a statute. See Heine v. Tex. Dept. of Pub. Safety, 92 S.W.3d 642, 648-49
(Tex. App.—Austin 2002, pet. denied). The Legislature enacted the statutes
regulating the various healthcare professions, including acupuncture and
chiropractic, to protect the public. To ensure practitioners possess the “requisite 53 As the Sunset Commission observed in making recommendations regarding the Chiropractic Board, the Chiropractic Board evaded rule challenges and obtaining stakeholder input by issuing “opinions” that operated as de facto rules rather than adopting rules through the statutorily required process. See CR 574-80. These opinions authorized MUA, needle EMG, and acupuncture. Id.
55 degree of skill in learning in [these] professions which affect the public,” the
Legislature mandates that individuals complete specified training, obtain a license,
and be overseen by the governing board for each specific healthcare profession.
See Tex. State Bd. of Public Accountancy, 515 S.W.2d at 954. This is essential for
healthcare professions because, absent adequate training, the very life and safety of
the public are at stake. See, e.g., Tex. State Bd. of Barber Exam’rs, 454 S.W.2d at
731.
The Chiropractic Board’s limitations argument seeks to erase the protections
afforded by the Acupuncture Chapter. The Chiropractic Board argues that because
it has, for years, illegally allowed chiropractors to practice acupuncture with little
to none of the training hours required for acupuncturists, without a license from the
Acupuncture Board, and without oversight from any board, it should be allowed to
continue to do so into perpetuity—putting countless additional patients at risk of
being deceived about the qualifications of their practitioners, subject to
incompetent and ineffective treatment or, worse, harmed. The protective intent of
the Legislature in enacting the Acupuncture Chapter “should not be thwarted” by
applying Section 16.051 so as to give the Chiropractic Board a free pass to
continue violating Texas law. Heine, 92 S.W.3d at 649.
Moreover, even if the Court concludes that the four-year residual statute of
limitations in Section 16.051 does govern challenges to an agency’s authority to
56 adopt and enforce administrative rules, there are at least three reasons why this
Court should hold that the Association’s claims for declaratory and injunctive
relief are not time-barred. First, the Chiropractic Board is incorrect that the “most
recent action of the Chiropractic Board relevant to the lawsuit became four years
old on July 2, 2013.” To the contrary, in 2013, the Board adopted amended
versions of both of the challenged rules as specifically related to needle use and the
practice of acupuncture by chiropractors (then Rules 75.17 and 75.21); in January
2015, during this lawsuit, the Chiropractic Board again amended the Rules,
renumbering them as Rules 78.13 and 78.14. When an agency promulgates a new
version of a rule, any limitations period begins anew and a court has authority to
review the entire amended rule (not just specifically amended subparts of the rule). 54 See State Office of Pub. Util. Counsel, 131 S.W.3d at 321. Thus, the
Association’s challenge to the amended rules would not be time-barred until 2019.
Second, equally important is what the Chiropractic Board failed to amend in
2013 and 2015. In 2012, in Texas Medical Association, the Court upheld the trial
court’s decision invalidating the entirety of Rule 75.17(a)(3). See 375 S.W.3d at
481. But when the Chiropractic Board thereafter amended that rule, it did not
amend the portion of the rule that continues to allow needle-use by chiropractors.
54 This case concerned a limitation provision in the Public Utility Regulatory Act, not the residual limitations statute. See id. But the same reasoning is applicable here.
57 And the Chiropractic Board did not amend the related Rules 75.17(b)(4),
75.17(e)(2)(C), and 75.21 (now Rules 78.13(a)(4), (b)(2), (e)(2)(C), 78.14, and
78.15(a)(1), (b)(1)(A), (b)(2)(A)), even though the court invalidated rules
permitting chiropractors to use needles. “A cause of action accrues and the
applicable limitations period begins to run when a wrongful act causes some legal
injury.” Nw. Austin Municipal Util. Dist. No. 1 v. City of Austin, 274 S.W.3d 820,
836-37 (Tex. App.—Austin 2008, pet. denied). The Chiropractic Board’s failure in
2013 and 2015 to bring its rules within this Court’s precedent constituted an
additional wrongful act that created a new controversy between the Chiropractic
Board and the Association. Thus, for this additional reason, the Association’s
claims would not be time-barred until 2019.
Third, the residual statute of limitations in section 16.051 does not bar the
Association’s challenge that the Chiropractic Board’s rules are a continuing and
ongoing violation of state law. Id. at 836. The Board did not just authorize
chiropractors to practice acupuncture (without adequate training, a license from the
Acupuncture Board, or oversight) at some distant time in the past—it continues to
do so every day. Until the Chiropractic Board’s rules are amended or repealed, the
Board violates state law every day, “caus[ing] the accrual of the cause of action to
occur each day.” Dvorken v. Lone Star Indus., Inc., 740 S.W.2d 565, 567 (Tex.
App.—Fort Worth 1987, no writ). While Section 16.051 may bar the Association
58 from seeking damages that accrued more than four years ago, it does not bar this
suit to determine if the challenged rules are currently in violation of Texas law.
Nw. Austin Municipal Util. Dist. No. 1, 274 S.W.3d at 837. Thus, the Association’s
challenge to the continuing violation is not time-barred.
For each of these reasons, the Court should conclude that, if the trial court
granted summary judgment on the Chiropractic Board’s affirmative defense of
limitations, it erred.
PRAYER The Texas Association of Acupuncture and Oriental Medicine prays that the
Court:
(1) reverse the trial court’s judgment, render judgment for the Association, and declare invalid and enjoin 22 Texas Administrative Code §§ 78.13(a)(4), (b)(2), (e)(2)(C), and 78.14 (previously §§ 75.17(a)(3), (b)(4), (e)(2)(C), and 75.21));
(2) alternatively, reverse the trial court’s judgment, render judgment for the Association, and declare that the statutory scheme created by Senate Bill 361’s amendment to the Acupuncture Chapter is unconstitutional because the Legislature may not favor one school of medicine over another nor enact legislation containing more than one subject; or
(3) in the further alternative, if the Court believes any fact issue precludes rendition of judgment, reverse the trial court’s judgment and remand for a new trial.
The Association further prays for any other relief to which it may be entitled.
59 Respectfully submitted,
By: /s/ Craig T. Enoch Craig T. Enoch Texas Bar No. 00000026 cenoch@enochkever.com Melissa A. Lorber Texas Bar No. 24032969 mlorber@enochkever.com Shelby O'Brien Texas Bar No. 24037203 sobrien@enochkever.com ENOCH KEVER PLLC 600 Congress Avenue Suite 2800 Austin, Texas 78701 512.615.1200 Telephone 512.615.1198 Fax Attorneys for Texas Association of Acupuncture and Oriental Medicine
60 CERTIFICATE OF COMPLIANCE Appellant certifies that this Brief of Appellant (when excluding the caption,
identity of parties and counsel, table of contents, index of authorities, statement of
the case, statement of issues presented, signature, proof of service, certificate of
compliance, and appendix) contains 13,517 words.
/s/ Craig T. Enoch Craig T. Enoch
CERTIFICATE OF SERVICE I hereby certify that, on August 10, 2015, the foregoing Brief of Appellant Texas Association of Acupuncture and Oriental Medicine was served via electronic service on the following:
Joe H. Thrash Assistant Attorney General Administrative Law Division P.O. Box 12548 Austin, Texas 78711 Joe.Thrash@texasattorneygeneral.gov
61 No. 3-15-00262-CV In the Court of Appeals Third District of Texas — Austin
TEXAS ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, Appellant, v.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS AND YVETTE YARBROUGH, EXECUTIVE DIRECTOR IN HER OFFICIAL CAPACITY, Appellees.
On Appeal from 201st District Court, Travis County, Texas Cause No. D-1-GN-14-000355
APPENDIX
A. Trial Court’s Judgment
B. 22 Texas Administrative Code §§ 78.13-78.15
C. Texas Occupations Code, Chapter 201
D. Texas Occupations Code, Chapter 205
E. 22 Texas Administrative Code §§ 183.2, 183.4, 183.20
F. Tex. Bd. of Chiropractic Exam’rs v. Tex. Med. Bd., 375 S.W.3d 464 (Tex. App.—Austin 2012, pet. denied)
62 APPENDIX A Appendix A to Brief of Appellant Page 1 of 2 Appendix A to Brief of Appellant Page 2 of 2 APPENDIX B Texas Administrative Code http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_...
<
TITLE 22 EXAMINING BOARDS PART 3 TEXAS BOARD OF CHIROPRACTIC EXAMINERS CHAPTER 78 RULES OF PRACTICE RULE §78.13 Scope of Practice
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise:
(1) Board--The Texas Board of Chiropractic Examiners.
(2) CPT Codebook--The American Medical Association's annual Current Procedural Terminology Codebook (2004). The CPT Codebook has been adopted by the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services as Level I of the common procedure coding system.
(3) Cosmetic treatment--A treatment that is primarily intended by the licensee to address the outward appearance of a patient.
(4) Incision--A cut or a surgical wound; also, a division of the soft parts made with a knife or hot laser.
(5) Musculoskeletal system--The system of muscles and tendons and ligaments and bones and joints and associated tissues and nerves that move the body and maintain its form.
(6) On-site--The presence of a licensed chiropractor in the clinic, but not necessarily in the room, while a patient is undergoing an examination or treatment procedure or service.
(7) Practice of chiropractic--The description and terms set forth under Texas Occupations Code §201.002, relating to the practice of chiropractic.
(8) Subluxation--A lesion or dysfunction in a joint or motion segment in which alignment, movement integrity and/or physiological function are altered, although contact between joint surfaces remains intact. It is essentially a functional entity, which may influence biomechanical and neural integrity.
(9) Subluxation complex--A neuromusculoskeletal condition that involves an aberrant relationship between two adjacent articular structures that may have functional or pathological sequelae, causing an alteration in the biomechanical and/or neuro-physiological reflections of these articular structures, their proximal structures, and/or other body systems that may be directly or indirectly affected by them.
(b) Aspects of Practice.
(1) A person practices chiropractic if they:
(A) use objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body; or
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(B) perform nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system.
(2) Needles may be used in the practice of chiropractic under standards set forth by the Board but may not be used for procedures that are incisive or surgical.
(3) This section does not apply to:
(A) a health care professional licensed under another statute of this state and acting within the scope of their license; or
(B) any other activity not regulated by state or federal law.
(c) Examination and Evaluation.
(1) In the practice of Chiropractic, licensees of this board provide necessary examination and evaluation services to:
(A) Determine the bio-mechanical condition of the spine and musculoskeletal system of the human body including, but not limited to, the following:
(i) the health and integrity of the structures of the system;
(ii) the coordination, balance, efficiency, strength, conditioning and functional health and integrity of the system;
(iii) the existence of the structural pathology, functional pathology or other abnormality of the system;
(iv) the nature, severity, complicating factors and effects of said structural pathology, functional pathology or other abnormality of the system;
(v) the etiology of said structural pathology, functional pathology or other abnormality of the system; and
(vi) the effect of said structural pathology, functional pathology or other abnormality of the system on the health of an individual patient or population of patients;
(B) Determine the existence of subluxation complexes of the spine and musculoskeletal system of the human body and to evaluate their condition including, but not limited to:
(i) The nature, severity, complicating factors and effects of said subluxation complexes;
(ii) the etiology of said subluxation complexes; and
(iii) The effect of said subluxation complexes on the health of an individual patient or population of patients;
(C) Determine the treatment procedures that are indicated in the therapeutic care of a patient or condition;
(D) Determine the treatment procedures that are contra-indicated in the therapeutic care of a patient or condition; and
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(E) Differentiate a patient or condition for which chiropractic treatment is appropriate from a patient or condition that is in need of care from a medical or other class of provider.
(2) To evaluate and examine individual patients or patient populations, licensees of this board are authorized to use:
(A) physical examinations;
(B) diagnostic imaging;
(C) laboratory examination;
(D) electro-diagnostic testing, other than an incisive procedure;
(E) sonography; and
(F) other forms of testing and measurement.
(3) Examination and evaluation services which require a license holder to obtain additional training or certification, in addition to the requirements of a basic chiropractic license, include:
(A) Performance of radiologic procedures, which are authorized under the Texas Chiropractic Act, Texas Occupations Code, Chapter 201, may be delegated to an assistant who meets the training requirements set forth under §78.1 of this title (relating to Registration of Chiropractic Radiologic Technologists).
(B) Technological Instrumented Vestibular-Ocular-Nystagmus Testing may be performed by a licensee with a diplomate in chiropractic neurology and that has successfully completed 150 hours of clinical and didactic training in the technical and professional components of the procedures as part of coursework in vestibular rehabilitation including the successful completion of a written and performance examination for vestibular specialty or certification. The professional component of these procedures may not be delegated to a technician and must be directly performed by a qualified licensee.
(d) Analysis, Diagnosis, and Other Opinions.
(1) In the practice of chiropractic, licensees may render an analysis, diagnosis, or other opinion regarding the findings of examinations and evaluations. Such opinions could include, but are not limited to, the following:
(A) An analysis, diagnosis or other opinion regarding the biomechanical condition of the spine or musculoskeletal system including, but not limited to, the following:
(i) the health and integrity of the structures of the system;
(ii) the coordination, balance, efficiency, strength, conditioning and functional health and integrity of the system;
(iii) the existence of structural pathology, functional pathology or other abnormality of the system;
(iv) the nature, severity, complicating factors and effects of said structural pathology, functional pathology, or other abnormality of the system;
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(v) the etiology of said structural pathology, functional pathology or other abnormality of the system; and
(vi) the effect of said structural pathology, functional pathology or other abnormality of the system on the health of an individual patient or population of patients;
(B) An analysis, diagnosis or other opinion regarding a subluxation complex of the spine or musculoskeletal system including, but not limited to, the following:
(i) the nature, severity, complicating factors and effects of said subluxation complex;
(ii) the etiology of said subluxation complex; and
(iii) the effect of said subluxation complex on the health of an individual patient or population of patients;
(C) An opinion regarding the treatment procedures that are indicated in the therapeutic care of a patient or condition;
(D) An opinion regarding the likelihood of recovery of a patient or condition under an indicated course of treatment;
(E) An opinion regarding the risks associated with the treatment procedures that are indicated in the therapeutic care of a patient or condition;
(F) An opinion regarding the risks associated with not receiving the treatment procedures that are indicated in the therapeutic care of a patient or condition;
(G) An opinion regarding the treatment procedures that are contraindicated in the therapeutic care of a patient or condition;
(H) An opinion that a patient or condition is in need of care from a medical or other class of provider;
(I) An opinion regarding an individual's ability to perform normal job functions and activities of daily living, and the assessment of any disability or impairment;
(J) An opinion regarding the biomechanical risks to a patient, or patient population from various occupations, job duties or functions, activities of daily living, sports or athletics, or from the ergonomics of a given environment; and
(K) Other necessary or appropriate opinions consistent with the practice of chiropractic.
(e) Treatment Procedures and Services.
(1) In the practice of chiropractic, licensees recommend, perform or oversee the performance of the treatment procedures that are indicated in the therapeutic care of a patient or patient population in order to:
(A) Improve, correct, or optimize the biomechanical condition of the spine or musculoskeletal system of the human body including, but not limited to, the following:
(i) the health and integrity of the structures of the musculoskeletal system; and
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(ii) the coordination, balance, efficiency, strength, conditioning, and functional health and integrity of the musculoskeletal system;
(B) Promote the healing of, recovery from, or prevent the development or deterioration of abnormalities of the biomechanical condition of the spine or musculoskeletal system of the human body including, but not limited to, the following:
(i) the structural pathology, functional pathology, or other abnormality of the musculoskeletal system;
(ii) the effects and complicating factors of any structural pathology, functional pathology, or other abnormality of the musculoskeletal system;
(iii) the etiology of any structural pathology, functional pathology, or other abnormality of the musculoskeletal system; and
(iv) the effect of any structural pathology, functional pathology, or other abnormality of the musculoskeletal system on the health of an individual patient or population of patients; and
(C) Promote the healing of, recovery from, or prevent the development or deterioration of a subluxation complex of the spine or musculoskeletal system, including, but not limited to, the following:
(i) the structural pathology, functional pathology, or other abnormality of a subluxation complex;
(ii) the effects and complicating factors of any structural pathology, functional pathology, or other abnormality of a subluxation complex;
(iii) the etiology of any structural pathology, functional pathology, or other abnormality of a subluxation complex; and
(iv) the effect of any structural pathology, functional pathology, or other abnormality of a subluxation complex on the health of an individual patient or population of patients.
(2) In order to provide therapeutic care for a patient or patient population, licensees are authorized to use:
(A) osseous and soft tissue adjustment and manipulative techniques;
(B) physical and rehabilitative procedures and modalities;
(C) acupuncture and other reflex techniques;
(D) exercise therapy;
(E) patient education;
(F) advice and counsel;
(G) diet and weight control;
(H) immobilization;
(I) splinting;
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(J) bracing;
(K) therapeutic lasers (non-invasive, nonincisive), with adequate training and the use of appropriate safety devices and procedures for the patient, the licensee and all other persons present during the use of the laser;
(L) durable medical goods and devices;
(M) homeopathic and botanical medicines, including vitamins, minerals; phytonutrients, antioxidants, enzymes, nutraceuticals, and glandular extracts;
(N) non-prescription drugs;
(O) referral of patients to appropriate health care providers; and
(P) other treatment procedures and services consistent with the practice of chiropractic.
Source Note: The provisions of this §78.13 adopted to be effective January 29, 2015, 40 TexReg 379
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TITLE 22 EXAMINING BOARDS PART 3 TEXAS BOARD OF CHIROPRACTIC EXAMINERS CHAPTER 78 RULES OF PRACTICE RULE §78.14 Acupuncture
(a) Acupuncture, and the related practices of acupressure and meridian therapy, includes methods for diagnosing and treating a patient by stimulating specific points on or within the musculoskeletal system by various means, including, but not limited to, manipulation, heat, cold, pressure, vibration, ultrasound, light electrocurrent, and short-needle insertion for the purpose of obtaining a biopositive reflex response by nerve stimulation. All therapeutic modalities provided by Doctors of Chiropractic in Texas must comply with the chiropractic scope of practice as defined by the Texas Occupations Code §201.002.
(b) In order to practice acupuncture, a licensee shall either:
(1) successfully complete at least one-hundred (100) hours training in undergraduate or post-graduate classes in the use and administration of acupuncture provided by a bona fide reputable chiropractic school or by an acupuncture school approved by the Texas State Board of Acupuncture Examiners;
(2) successfully complete either:
(A) the national standardized certification examination in acupuncture offered by the National Board of Chiropractic Examiners; or
(B) the examination offered by the National Certification Commission for Acupuncture and Oriental Medicine; or
(3) successfully complete at least one-hundred (100) hours training in the use and administration of acupuncture in a course of study approved by the board.
(c) Existing licensees that have been trained in acupuncture, that have been practicing acupuncture, and that are in good standing with the Texas Board of Chiropractic Examiners and other jurisdictions where they are licensed, may meet the requirements of subsection (b) of this section by counting each year of practice as ten hours of training in the use and administration of acupuncture.
(d) Beginning on January 1, 2010, an applicant for licensure must successfully complete either the national standardized certification examination in acupuncture offered by the National Board of Chiropractic Examiners or the examination offered by the National Certification Commission for Acupuncture and Oriental Medicine in order to practice acupuncture. This requirement will supersede the provisions of subsection (b) of this section.
Source Note: The provisions of this §78.14 adopted to be effective January 29, 2015, 40 TexReg 379
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TITLE 22 EXAMINING BOARDS PART 3 TEXAS BOARD OF CHIROPRACTIC EXAMINERS CHAPTER 78 RULES OF PRACTICE RULE §78.15 Scope of Prohibitions
(a) The practice of chiropractic does not include:
(1) incisive or surgical procedures;
(2) the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription; or
(3) the use of x-ray therapy or therapy that exposes the body to radioactive materials.
(b) Aspects of Prohibition.
(1) Examination and evaluation services, and the equipment used for such services, which are outside the scope of chiropractic practice include:
(A) incisive or surgical procedures;
(B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription;
(C) the use of x-ray therapy or therapy that exposes the body to radioactive materials; or
(D) other examination and evaluation services that are inconsistent with the practice of chiropractic and with the examination and evaluation services described under this subsection.
(2) Analysis, diagnosis, and other opinions regarding the findings of examinations and evaluations which are outside the scope of chiropractic include:
(B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription;
(C) the use of x-ray therapy or therapy that exposes the body to radioactive materials; or
(D) other analysis, diagnosis, and other opinions that are inconsistent with the practice of chiropractic and with the analysis, diagnosis, and other opinions described under this subsection.
(3) The treatment procedures and services provided by a licensee which are outside of the scope of practice include:
(A) incisive or surgical procedures; Appendix B to Brief of Appellant Page 8 of 9
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(B) the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription;
(C) the use of x-ray therapy or therapy that exposes the body to radioactive materials;
(D) cosmetic treatments; or
(E) other treatment procedures and services that are inconsistent with the practice of chiropractic and with the treatment procedures and services described under this subsection.
(c) Questions Regarding Scope of Practice. Further questions regarding whether a service or procedure is within the scope of practice and this rule may be submitted in writing to the Board and should contain the following information:
(1) a detailed description of the service or procedure that will provide the Board with sufficient background information and detail to make an informed decision;
(2) information on the use of the service or procedure by chiropractors in Texas or in other jurisdictions; and
(3) an explanation of how the service or procedure is consistent with either:
(A) using subjective or objective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body; or
(B) performing nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system.
Source Note: The provisions of this §78.15 adopted to be effective January 29, 2015, 40 TexReg 379
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OCCUPATIONS CODE
TITLE 3. HEALTH PROFESSIONS
SUBTITLE C. OTHER PROFESSIONS PERFORMING MEDICAL PROCEDURES
CHAPTER 201. CHIROPRACTORS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 201.001. DEFINITIONS. In this chapter: (1) "Board" means the Texas Board of Chiropractic Examiners. (2) "Chiropractor" means a person licensed to practice chiropractic by the board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 201.002. PRACTICE OF CHIROPRACTIC. (a) In this section: (1) "Controlled substance" has the meaning assigned to that term by Section 481.002, Health and Safety Code. (2) "Dangerous drug" has the meaning assigned to that term by Section 483.001, Health and Safety Code. (3) "Incisive or surgical procedure" includes making an incision into any tissue, cavity, or organ by any person or implement. The term does not include the use of a needle for the purpose of drawing blood for diagnostic testing. (4) "Surgical procedure" includes a procedure described in the surgery section of the common procedure coding system as adopted by the Centers for Medicare and Medicaid Services of the United States Department of Health and Human Services. (b) A person practices chiropractic under this chapter if the person: (1) uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body;
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(2) performs nonsurgical, nonincisive procedures, including adjustment and manipulation, to improve the subluxation complex or the biomechanics of the musculoskeletal system; (3) represents to the public that the person is a chiropractor; or (4) uses the term "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms or initials in connection with the person's name. (c) The practice of chiropractic does not include: (1) incisive or surgical procedures; (2) the prescription of controlled substances, dangerous drugs, or any other drug that requires a prescription; or (3) the use of x-ray therapy or therapy that exposes the body to radioactive materials.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 1, eff. September 1, 2005.
Sec. 201.003. APPLICATIONS AND EXEMPTIONS. (a) This chapter does not apply to a registered nurse licensed under Chapter 301, a vocational nurse licensed under Chapter 301, a person who provides spinal screening services as authorized by Chapter 37, Health and Safety Code, a physical therapist licensed under Chapter 453, or a massage therapist or a massage therapy instructor qualified and registered under Chapter 455 if: (1) the person does not represent to the public that the person is a chiropractor or use the term "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms or initials in connection with the person's name or practice; and (2) the person practices strictly within the scope of the license or registration held in compliance with all laws relating to the license and registration. (b) This chapter does not limit or affect the rights and powers of a physician licensed in this state to practice medicine.
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(c) This section does not affect or prevent a student enrolled in a college of chiropractic in this state from engaging in all phases of clinical practice if the practice is: (1) part of the curriculum; and (2) conducted under the supervision of a licensed chiropractor or a licensed physician.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 553, Sec. 2.014, eff. Feb. 1, 2004.
Sec. 201.004. APPLICATION OF SUNSET ACT. The Texas Board of Chiropractic Examiners is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the board is abolished and this chapter expires September 1, 2017.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 2, eff. September 1, 2005.
SUBCHAPTER B. TEXAS BOARD OF CHIROPRACTIC EXAMINERS
Sec. 201.051. BOARD; MEMBERSHIP. (a) The Texas Board of Chiropractic Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows: (1) six chiropractors who are reputable practicing chiropractors and who have resided in this state for at least five years preceding appointment; and (2) three members who represent the public. (b) Appointments to the board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.
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Sec. 201.052. MEMBERSHIP ELIGIBILITY. (a) A person is not eligible to serve as a member of the board if the person: (1) is a member of the faculty or board of trustees of a chiropractic school or a doctor of chiropractic degree program; (2) is a stockholder in a chiropractic school or college; or (3) has a financial interest in a chiropractic school or college. (b) A person is not eligible for appointment as a public member of the board if the person or the person's spouse: (1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care; (2) is employed by or participates in the management of a business entity or other organization regulated by or receiving funds from the board; (3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by or receiving funds from the board; or (4) uses or receives a substantial amount of tangible goods, services, or funds from the board, other than compensation or reimbursement authorized by law for board membership, attendance, or expenses.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 1, eff. June 15, 2007.
Sec. 201.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. (b) A person may not be a member of the board and may not be a board employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of
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establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if: (1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or (2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care. (c) Repealed by Acts 2005, 79th Leg., Ch. 1020, Sec. 36, eff. September 1, 2005. (d) A person may not be a member of the board or act as the general counsel to the board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 3, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 36, eff. September 1, 2005.
Sec. 201.054. TERMS; VACANCY. (a) Members of the board are appointed for staggered six-year terms. The terms of one-third of the members expire on February 1 of each odd-numbered year. (b) A person may not be appointed to serve more than two terms. (c) If a vacancy occurs because of the death or resignation of a board member, the governor shall appoint a replacement to fill the unexpired term.
Sec. 201.055. OFFICERS. (a) The governor shall designate a chiropractic member of the board as the board's president. The president serves in that capacity at the will of the governor. (b) The board shall elect one of its members as vice president and one of its members as secretary-treasurer at the first board meeting after the biennial appointment of board members. (c) Repealed by Acts 2003, 78th Leg., ch. 285, Sec. 31(31).
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Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 285, Sec. 31(31), eff. Sept. 1, 2003.
Sec. 201.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the board that a member: (1) does not have at the time of taking office the qualifications required by Sections 201.051 and 201.052(b); (2) does not maintain during service on the board the qualifications required by Sections 201.051 and 201.052(b); (3) is ineligible for membership under Section 201.052 or 201.053; (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or (5) is absent from more than half of the regularly scheduled board meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the board. (b) The validity of an action of the board is not affected by the fact that it is taken when a ground for removal of a board member exists. (c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the president of the board of the potential ground. The president shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the president, the executive director shall notify the next highest ranking officer of the board, who shall then notify the governor and the attorney general that a potential ground for removal exists.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 4, eff. September 1, 2005.
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Sec. 201.057. PER DIEM; REIMBURSEMENT. (a) A board member is entitled to a per diem as set by the General Appropriations Act for each day the member engages in the business of the board. (b) A member may not receive reimbursement for travel expenses, including expenses for meals and lodging, other than transportation expenses as provided by the General Appropriations Act.
Sec. 201.058. MEETINGS. (a) The board shall hold regular meetings to examine applicants and transact business at least twice each year at the times and places determined by the board. (b) A special meeting may be held at the call of three board members.
Sec. 201.060. BOARD SEAL. The seal of the board consists of a five-point star with the words, "The State of Texas," and the words, "Texas Board of Chiropractic Examiners," around the margin.
Sec. 201.061. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the board may not vote, deliberate, or be counted as a member in attendance at a meeting of the board until the person completes a training program that complies with this section. (b) The training program must provide the person with information regarding: (1) this chapter and the board's programs, functions, rules, and budget; (2) the results of the most recent formal audit of the board; (3) the requirements of laws relating to open meetings, public information, administrative procedure, and conflicts of interest; and
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(4) any applicable ethics policies adopted by the board or the Texas Ethics Commission. (c) A person appointed to the board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 5, eff. September 1, 2005.
SUBCHAPTER C. BOARD PERSONNEL
Sec. 201.101. DIVISION OF RESPONSIBILITIES. The board shall develop and implement policies that clearly separate the policymaking responsibilities of the board and the management responsibilities of the executive director and the staff of the board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 6, eff. September 1, 2005.
Sec. 201.102. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The board shall provide as often as necessary to its members and employees information regarding their: (1) qualifications for office or employment under this chapter; and (2) responsibilities under applicable laws relating to standards of conduct for state officers or employees.
Sec. 201.103. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS. (a) The executive director or the executive director's designee shall develop an intra-agency career ladder program. The program
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must require intra-agency postings of all nonentry level positions concurrently with any public posting. (b) The executive director or the executive director's designee shall develop a system of annual performance evaluations. All merit pay for board employees must be based on the system established under this subsection.
Sec. 201.104. EQUAL EMPLOYMENT OPPORTUNITY; REPORT. (a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of an equal employment opportunity program under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. The policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, application, training, and promotion of personnel, that are in compliance with Chapter 21, Labor Code; (2) a comprehensive analysis of the board workforce that meets federal and state guidelines; (3) procedures by which a determination can be made of the significant underuse in the board workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and (4) reasonable methods to appropriately address those areas of significant underuse. (b) A policy statement prepared under Subsection (a) must be: (1) prepared to cover an annual period; (2) updated annually; (3) reviewed by the Commission on Human Rights for compliance with Subsection (a)(1); and (4) filed with the governor. (c) The governor shall deliver a biennial report to the legislature based on the information received under Subsection (b). The report may be made separately or as part of other biennial reports made to the legislature.
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SUBCHAPTER D. BOARD POWERS AND DUTIES
Sec. 201.151. GENERAL POWERS AND DUTIES. The board shall administer the purposes of and enforce this chapter.
Sec. 201.152. RULES. (a) The board may adopt rules and bylaws: (1) necessary to: (A) perform the board's duties; and (B) regulate the practice of chiropractic; and (2) relating to the board's proceedings and the board's examination of an applicant for a license to practice chiropractic. (b) The board shall adopt rules for the enforcement of this chapter. The board shall issue all rules based on a vote of a majority of the board at a regular or special meeting. The issuance of a disciplinary action or disciplinary order of the board is not limited by this subsection.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 7, eff. September 1, 2005.
Sec. 201.1525. RULES CLARIFYING SCOPE OF PRACTICE OF CHIROPRACTIC. The board shall adopt rules clarifying what activities are included within the scope of the practice of chiropractic and what activities are outside of that scope. The rules: (1) must clearly specify the procedures that chiropractors may perform; (2) must clearly specify any equipment and the use of that equipment that is prohibited; and
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(3) may require a license holder to obtain additional training or certification to perform certain procedures or use certain equipment.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 8, eff. September 1, 2005.
Sec. 201.1526. DEVELOPMENT OF PROPOSED RULES REGARDING SCOPE OF PRACTICE OF CHIROPRACTIC. (a) This section applies to the process by which the board develops proposed rules under Section 201.1525 before the proposed rules are published in the Texas Register and before the board complies with the rulemaking requirements of Chapter 2001, Government Code. This section does not affect the duty of the board to comply with the rulemaking requirements of that law. (b) The board shall establish methods under which the board, to the extent appropriate, will seek input early in the rule development process from the public and from persons who will be most affected by a proposed rule. Methods must include identifying persons who will be most affected and soliciting, at a minimum, the advice and opinions of those persons. Methods may include negotiated rulemaking, informal conferences, advisory committees, and any other appropriate method. (c) A rule adopted by the board under Section 201.1525 may not be challenged on the grounds that the board did not comply with this section. If the board was unable to solicit a significant amount of advice and opinion from the public or from affected persons early in the rule development process, the board shall state in writing the reasons why the board was unable to do so.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 8, eff. September 1, 2005.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 7, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 201.153. FEES. (a) The board by rule shall set fees in amounts reasonable and necessary to cover the costs of administering
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this chapter. The board may not set a fee in an amount that is less than the amount of that fee on September 1, 1993. (b) Each of the following fees imposed under Subsection (a) is increased by $200: (1) the fee for an annual renewal of a license; (2) the fee for issuance of a license to an out-of-state applicant; (3) the fee for an examination; and (4) the fee for a reexamination. (c) For each $200 fee increase collected under Subsection (b), $50 shall be deposited in the foundation school fund and $150 shall be deposited in the general revenue fund.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 899, Sec. 2.
Sec. 201.154. CERTIFICATION FOR MANIPULATION UNDER ANESTHESIA PROHIBITED. Notwithstanding any other provision of this chapter, the board may not adopt a process to certify chiropractors to perform manipulation under anesthesia.
Sec. 201.155. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The board may not adopt rules restricting advertising or competitive bidding by a person regulated by the board except to prohibit false, misleading, or deceptive practices by that person. (b) The board may not include in rules to prohibit false, misleading, or deceptive practices by a person regulated by the board a rule that: (1) restricts the use of any advertising medium; (2) restricts the person's personal appearance or use of the person's voice in an advertisement; (3) relates to the size or duration of an advertisement by the person; or (4) restricts the use of a trade name in advertising by the person.
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Sec. 201.1555. FRAUD. (a) The board shall strictly and vigorously enforce the provisions of this chapter prohibiting fraud. (b) The board shall adopt rules to prevent fraud in the practice of chiropractic, including rules relating to: (1) the filing of workers' compensation and insurance claims; and (2) records required to be maintained in connection with the practice of chiropractic.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 9, eff. September 1, 2005.
Sec. 201.156. BOARD DUTIES REGARDING COMPLAINTS. (a) The board by rule shall: (1) adopt a form to standardize information concerning complaints made to the board; and (2) prescribe information to be provided to a person when the person files a complaint with the board. (b) The board shall provide reasonable assistance to a person who wishes to file a complaint with the board. (c) The board by rule shall adopt procedures concerning: (1) the retention of information files on license holders; and (2) the expunction of files on license holders, including complaints, adverse reports, and other investigative information on license holders.
Sec. 201.157. IMMUNITY. In the absence of fraud, conspiracy, or malice, a member or employee of the board, a witness called to testify by the board, or a consultant or hearing officer is not liable in a civil action for any alleged injury, wrong, loss, or damage for any investigation, report, recommendation, statement,
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evaluation, finding, order, or award made in the course of performing the person's official duties.
Sec. 201.158. BOARD COMMITTEES. (a) The board may appoint committees from its own members. (b) A committee appointed from the members of the board shall: (1) consider matters referred to the committee relating to the enforcement of this chapter and the rules adopted by the board; and (2) make recommendations to the board. (c) The board may delegate to a committee of the board an authority granted to the board under Section 201.505(c).
Sec. 201.159. RECORDS. (a) The board shall preserve a record of its proceedings in a register that contains: (1) the name, age, place, and duration of residence of each applicant for a license; (2) the amount of time spent by the applicant in the study of chiropractic in respective doctor of chiropractic degree programs; and (3) other information the board desires to record. (b) The register shall show whether an applicant was rejected or licensed. (c) The information recorded in the register is prima facie evidence of the matters contained in the register. A certified copy of the register with the seal of the board is admissible as evidence in any court of this state.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.051(a), eff. Sept. 1, 2001. Amended by: Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 2, eff. June 15, 2007.
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Sec. 201.160. PAYMENT OF OTHER EXPENSES. The board shall pay the necessary expenses of an employee of the board incurred in the performance of the employee's duties.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 285, Sec. 24, eff. Sept. 1, 2003.
Sec. 201.161. APPROPRIATION FROM STATE TREASURY PROHIBITED. The legislature may not appropriate money, other than fees, from the state treasury for an expenditure made necessary by this chapter.
Sec. 201.163. POLICY ON TECHNOLOGICAL SOLUTIONS. The board shall implement a policy requiring the board to use appropriate technological solutions to improve the board's ability to perform its functions. The policy must ensure that the public is able to interact with the board on the Internet.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 10, eff. September 1, 2005.
Sec. 201.164. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) The board shall develop and implement a policy to encourage the use of: (1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of board rules; and (2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the board's jurisdiction. (b) The board's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. (c) The board shall designate a trained person to:
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(1) coordinate the implementation of the policy adopted under Subsection (a); (2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and (3) collect data concerning the effectiveness of those procedures, as implemented by the board.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 10, eff. September 1, 2005.
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND COMPLAINT PROCEDURES
Sec. 201.201. PUBLIC INTEREST INFORMATION. (a) The board shall prepare information of public interest describing the functions of the board and the procedures by which complaints are filed with and resolved by the board. (b) The board shall make the information available to the public and appropriate state agencies.
Sec. 201.202. PUBLIC PARTICIPATION. (a) The board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the board and to speak on any issue under the board's jurisdiction. (b) The board shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the board's programs.
Sec. 201.203. COMPLAINTS. (a) The board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the board for the purpose of directing complaints to the board. The board may provide for that notice:
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(1) on each registration form, application, or written contract for services of a person regulated by the board; or (2) on a sign prominently displayed in the place of business of each person regulated by the board. (b) The board shall list with its regular telephone number any toll-free telephone number established under other state law that may be called to present a complaint about a health professional.
Sec. 201.204. RECORDS OF COMPLAINTS. (a) The board shall keep an information file about each complaint filed with the board. The board's information file must be kept current and contain a record for each complaint of: (1) each person contacted in relation to the complaint; (2) a summary of findings made at each step of the complaint process; (3) an explanation of the legal basis and reason for a complaint that is dismissed; (4) the schedule required under Section 201.205 and a notification of any change in the schedule; and (5) other relevant information. (b) Except as provided by Subsection (c), if a written complaint is filed with the board that the board has authority to resolve, the board, at least quarterly and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (c) If a written complaint that the board has authority to resolve is referred to the enforcement committee, the board at least semiannually and until final disposition of the complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation.
Sec. 201.205. GENERAL RULES REGARDING COMPLAINT INVESTIGATION AND DISPOSITION. (a) The board shall adopt rules concerning the
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investigation of a complaint filed with the board. The rules adopted under this section must: (1) distinguish between categories of complaints; (2) require the board to prioritize complaints for purposes of determining the order in which they are investigated, taking into account the seriousness of the allegations made in a complaint and the length of time a complaint has been pending; (3) ensure that a complaint is not dismissed without appropriate consideration; (4) require that the board be advised of a complaint that is dismissed and that a letter be sent to the person who filed the complaint explaining the action taken on the complaint; (5) ensure that the person who filed the complaint has the opportunity to explain the allegations made in the complaint; and (6) prescribe guidelines concerning the categories of complaints that require the use of a private investigator and the procedures for the board to obtain the services of a private investigator. (b) The board shall: (1) dispose of a complaint in a timely manner; and (2) establish a schedule for conducting each phase of the complaint process that is under the control of the board not later than the 30th day after the date the board receives the complaint. (c) The board shall notify the parties to the complaint of the projected time requirements for pursuing the complaint. (d) The board shall notify the parties to the complaint of any change in the schedule not later than the seventh day after the date the change is made. (e) The executive director shall notify the board of a complaint that is unresolved after the time prescribed by the board for resolving the complaint so that the board may take necessary action on the complaint.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 11, eff. September 1, 2005.
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Sec. 201.206. CONFIDENTIALITY OF INVESTIGATION FILES. (a) The board's investigation files are confidential, privileged, and not subject to discovery, subpoena, or any other means of legal compulsion for release other than to the board or an employee or agent of the board. (b) The board shall share information in investigation files, on request, with another state or federal regulatory agency or with a local, state, or federal law enforcement agency regardless of whether the investigation has been completed. The board is not required to disclose under this subsection information that is an attorney-client communication, an attorney work product, or other information protected by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence. (c) On the completion of the investigation and before a hearing under Section 201.505, the board shall provide to the license holder, subject to any other privilege or restriction set forth by rule, statute, or legal precedent, access to all information in the board's possession that the board intends to offer into evidence in presenting its case in chief at the contested case hearing on the complaint. The board is not required to provide: (1) a board investigative report or memorandum; (2) the identity of a nontestifying complainant; or (3) attorney-client communications, attorney work product, or other materials covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence. (d) Notwithstanding Subsection (a), the board may: (1) disclose a complaint to the affected license holder; and (2) provide to a complainant the license holder's response to the complaint, if providing the response is considered by the board to be necessary to investigate the complaint. (e) This section does not prohibit the board or another party in a disciplinary action from offering into evidence in a contested case under Chapter 2001, Government Code, a record, document, or other information obtained or created during an investigation.
Added by Acts 2003, 78th Leg., ch. 329, Sec. 1, eff. Sept. 1, 2003.
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Sec. 201.207. INSPECTIONS. (a) The board, during reasonable business hours, may: (1) conduct an on-site inspection of a chiropractic facility to investigate a complaint filed with the board; and (2) examine and copy records of the chiropractic facility pertinent to the inspection or investigation. (b) The board is not required to provide notice before conducting an inspection under this section.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 12, eff. September 1, 2005.
Sec. 201.208. COOPERATION WITH TEXAS DEPARTMENT OF INSURANCE. (a) In this section, "department" means the Texas Department of Insurance. (b) This section applies only to information held by or for the department or the board that relates to a person who is licensed or otherwise regulated by the department or the board. (c) The department and the board, on request or on the department or board's own initiative, may share confidential information or information to which access is otherwise restricted by law. The department and the board shall cooperate with and assist each other when either agency is conducting an investigation by providing information that is relevant to the investigation. Except as provided by this section, confidential information that is shared under this section remains confidential under law, and legal restrictions on access to the information remain in effect unless the agency sharing the information approves use of the information by the receiving agency for enforcement purposes. The provision of information by the board to the department or by the department to the board under this subsection does not constitute a waiver of privilege or confidentiality as established by law. (d) The department and the board shall develop and maintain a system for tracking investigations conducted by each agency with the cooperation and assistance of the other agency, including information on all disciplinary actions taken. (e) The department and the board shall collaborate on taking appropriate disciplinary actions to the extent practicable.
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Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 12, eff. September 1, 2005.
Sec. 201.209. INFORMATION ON STATUS OF CERTAIN INVESTIGATIONS. The board shall include in the annual financial report required by Section 2101.011, Government Code, information on all investigations conducted by the board with the cooperation and assistance of the Texas Department of Insurance and the Texas Workers' Compensation Commission during the preceding fiscal year.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 12, eff. September 1, 2005.
SUBCHAPTER F. PEER REVIEW COMMITTEES
Sec. 201.251. APPOINTMENT OF PEER REVIEW COMMITTEES; TERMS. (a) The board shall appoint local chiropractic peer review committees. Members of a local chiropractic peer review committee serve staggered terms of three years, with as near to one-third of the members' terms as possible expiring December 31 of each year. (b) The board may seek input from state chiropractic associations in selecting persons to appoint to a local peer review committee.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 13, eff. September 1, 2005.
Sec. 201.252. COMMITTEE MEMBER ELIGIBILITY. (a) Only a chiropractor who has completed a program of peer review training approved by the board is eligible to serve on a chiropractic peer review committee. (b) A member of a local peer review committee may not be a consultant to or an employee of any company or carrier of health care insurance.
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(c) The board shall establish requirements for peer review training programs that do not discriminate against any chiropractor. A peer review training program must include training in the investigation of complaints in accordance with this chapter and board rules. (d) The board by rule shall adopt additional requirements for eligibility to serve on a chiropractic peer review committee, including a requirement that a member have: (1) a clean disciplinary record; and (2) an acceptable record regarding utilization review performed in accordance with Article 21.58A, Insurance Code.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 14, eff. September 1, 2005.
Sec. 201.253. EXECUTIVE PEER REVIEW COMMITTEE. (a) The board shall appoint an executive chiropractic peer review committee to direct the activities of the local committees. The executive peer review committee consists of six volunteer members. Members of the executive peer review committee serve staggered terms of three years, with one-third of the members' terms expiring December 31 of each year. The executive peer review committee shall elect a presiding officer from its members. (b) The executive peer review committee shall conduct hearings relating to disputes referred by a local peer review committee and shall make its recommendations based solely on evidence presented in the hearings. (c) A member of an executive peer review committee may not be a consultant to or an employee of any company or carrier of health care insurance.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 15, eff. September 1, 2005.
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Sec. 201.254. DUTIES OF PEER REVIEW COMMITTEE WITH REGARD TO CERTAIN DISPUTES. (a) Each local chiropractic peer review committee shall: (1) review and evaluate chiropractic treatment and services in disputes involving a chiropractor and a patient or a person obligated to pay a fee for chiropractic services or treatment; and (2) mediate in a dispute involving a chiropractor and a patient or person obligated to pay a fee for chiropractic services or treatment. (b) Each local peer review committee shall report its findings and recommendations to the executive chiropractic peer review committee. A local peer review committee shall refer a dispute that is not resolved at the local level to the executive peer review committee. (c) Repealed by Acts 2005, 79th Leg., Ch. 1020, Sec. 36, eff. September 1, 2005. (d) Repealed by Acts 2005, 79th Leg., Ch. 1020, Sec. 36, eff. September 1, 2005. (e) Repealed by Acts 2005, 79th Leg., Ch. 1020, Sec. 36, eff. September 1, 2005.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 16, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 36, eff. September 1, 2005.
Sec. 201.2545. COMPLAINT INVESTIGATION BY PEER REVIEW COMMITTEE. (a) The board may refer to a local chiropractic peer review committee for investigation a complaint regarding whether chiropractic treatment or services provided by a chiropractor were provided according to the standard of care in the practice of chiropractic. (b) In conducting an investigation of a referred complaint, the committee shall review the records and other evidence obtained by the staff of the board in the course of the staff's investigation of the complaint.
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(c) The committee shall report to the board its findings regarding the complaint, including a statement of: (1) the standard of care in the practice of chiropractic governing the chiropractic treatment or services provided by the chiropractor; (2) whether the chiropractor met the standard of care in providing the treatment or services; and (3) the clinical basis for the committee's finding under Subdivision (2). (d) The board may request a member of the committee to attend an informal conference or testify at a contested case hearing. (e) The board, with input from the executive chiropractic peer review committee, shall adopt rules necessary to implement this section.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 17, eff. September 1, 2005.
Sec. 201.2546. IMMUNITY; ELIGIBILITY TO PARTICIPATE IN COMMITTEE ACTIVITIES. (a) In the absence of fraud, conspiracy, or malice, a member of a peer review committee is not liable in a civil action for a finding, evaluation, recommendation, or other action made or taken by the member as a member of the committee or by the committee. The immunity granted by this subsection does not limit the operation of federal or state antitrust laws as applied to the conduct of a local or executive peer review committee that involves price fixing or any other unreasonable restraint of trade. (b) A member of a peer review committee may not participate in committee deliberations or other activities involving chiropractic services or treatment rendered or performed by the member. (c) Except for the express immunity provided by Subsection (a), this section does not deprive any person of a right or remedy, legal or equitable.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 17, eff. September 1, 2005.
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Sec. 201.255. REQUEST FOR INFORMATION; REPORT TO BOARD ON DISPUTES MEDIATED. (a) The board may request from a chiropractic peer review committee information pertaining to actions taken by the peer review committee. (b) The executive chiropractic peer review committee shall file annually with the board a report on the disputes mediated by the local chiropractic peer review committees under Section 201.254 during the preceding calendar year. The report must include: (1) the number of disputes referred to the committees; (2) a categorization of the disputes referred to the committees and the number of complaints in each category; and (3) the number of disputes resolved and the manner in which they were resolved.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 18, eff. September 1, 2005.
Sec. 201.256. PUBLIC ACCESS TO INFORMATION REGARDING PEER REVIEW COMMITTEES. The board shall maintain on the board's Internet website information regarding local chiropractic peer review committees, including: (1) the services committees provide; and (2) the types of disputes committees mediate.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 19, eff. September 1, 2005.
SUBCHAPTER G. LICENSE REQUIREMENTS
Sec. 201.301. LICENSE REQUIRED. A person may not practice chiropractic unless the person holds a license issued by the board.
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Sec. 201.302. LICENSING EXAMINATION APPLICATION. (a) An applicant for a license by examination must present satisfactory evidence to the board that the applicant: (1) is at least 18 years of age; (2) is of good moral character; (3) has completed 90 semester hours of college courses other than courses included in a doctor of chiropractic degree program; and (4) is either a graduate or a final semester student of a bona fide reputable doctor of chiropractic degree program. (b) An application for examination must be: (1) made in writing; (2) verified by affidavit; (3) filed with the secretary-treasurer of the board on a form prescribed by the board; and (4) accompanied by a fee. (c) Each applicant shall be given reasonable notice of the time and place of the examination. (d) Notwithstanding Subsection (a)(3), if the Council on Chiropractic Education or another national chiropractic education accreditation organization recognized by the board requires a number of semester hours of college courses other than courses included in a doctor of chiropractic degree program that is greater or less than the number of hours specified by that subsection to qualify for admission to a doctor of chiropractic degree program, the board may adopt the requirement of that organization if the board determines that requirement to be appropriate.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 20, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 3, eff. June 15, 2007.
Sec. 201.303. EDUCATIONAL REQUIREMENTS. (a) To comply with the requirements of Section 201.302, the applicant must submit to the board a transcript of credits that certifies that the applicant has
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satisfactorily completed at least the number of semester hours of college credits required by that section at a college or university that issues credits accepted by The University of Texas at Austin for a bachelor of arts or bachelor of science degree. (b) Repealed by Acts 2003, 78th Leg., ch. 329, Sec. 5. (c) The board may charge a fee of not more than $50 for verifying that the applicant has satisfied the requirements of this section. (d) A bona fide reputable doctor of chiropractic degree program that satisfies Section 201.302(a)(4) is one that: (1) has entrance requirements and a course of instruction as high as those of a better class of doctor of chiropractic degree programs in the United States; (2) maintains a resident course of instruction equivalent to: (A) not less than four terms of eight months each; or (B) not less than the number of semester hours required by The University of Texas for a bachelor of arts or bachelor of science degree; (3) provides a course of instruction in the fundamental subjects listed in Section 201.305(b); and (4) has the necessary teaching staff and facilities for proper instruction in all of the fundamental subjects listed in Section 201.305(b).
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 329, Sec. 5. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 21, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 4, eff. June 15, 2007.
Sec. 201.304. EXAMINATION REQUIREMENTS. (a) To receive a license, an applicant for a license by examination must pass: (1) the required and optional parts of the examination given by the National Board of Chiropractic Examiners, as required by and under conditions established by board rule; and
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(2) an examination prepared by the board that tests the applicant's knowledge and understanding of the laws relating to the practice of chiropractic in this state. (b) The board shall periodically determine whether applicants who hold National Board of Chiropractic Examiners certificates have been adequately examined. If the board determines that those applicants have not been adequately examined, the board shall require those applicants to submit to an additional examination prepared by the board. (c) The board may give an examination during the applicant's last semester of college if the board receives evidence indicating the applicant has satisfactory grades. Immediately after the applicant graduates from chiropractic college, the applicant must forward to the board evidence of satisfactory completion of the applicant's course of study.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 721, Sec. 1, eff. Sept. 1, 2001.
Sec. 201.305. EXAMINATION PROCEDURE. (a) Each examination for a license to practice chiropractic shall be conducted in the English language and in a fair and impartial manner. (b) An examination given under Section 201.304(a)(1) shall be conducted on practical and theoretical chiropractic and in the subjects of anatomy-histology, chemistry, bacteriology, physiology, symptomatology, pathology and analysis of the human spine, and hygiene and public health. (c) Applicants may be known to the examiners only by numbers, without a name or another method of identification on examination papers by which members of the board could identify an applicant, until after the general averages of the applicants' numbers in the class are determined and the licenses are granted or refused. (d) The board by rule shall ensure that the examination is administered to applicants with disabilities in compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.).
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Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 721, Sec. 2, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 22, eff. September 1, 2005.
Sec. 201.306. EXAMINATION RESULTS. (a) The board shall notify each applicant of the results of an examination given by the board not later than the 30th day after the date the licensing examination is administered. (b) If requested by a person who fails an examination given by the board, the board shall review with the person the circumstances surrounding the adverse score. (c) To pass the examination under Section 201.304(a)(2), an applicant must score a grade of at least 75 percent. (d) All questions and answers from an examination given by the board, with the grades attached, authenticated by the signature of the examiner, shall be preserved in the executive office of the board for at least one year. (e) Each license shall be attested by the seal of the board and signed by all members of the board or a quorum of the board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 721, Sec. 3, eff. Sept. 1, 2001.
Sec. 201.307. REEXAMINATION. (a) An applicant who fails to pass a required examination may take another examination. (b) The board by rule shall establish the number of times an applicant may retake the examination required by Section 201.304(a) (1) or (b), as applicable. An applicant must pass the examination required by Section 201.304(a)(2) within three attempts. The board by rule shall establish the conditions under which an applicant may retake an examination. The board may require an applicant to fulfill additional educational requirements. (c) If the applicant makes a satisfactory grade on reexamination, the board shall grant to the applicant a license to practice chiropractic.
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(d) The board's decision under this section is final.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 721, Sec. 4, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 23, eff. September 1, 2005.
Sec. 201.308. TEMPORARY LICENSE. (a) The board by rule may provide for the issuance of a temporary license. (b) The board by rule shall provide a time limit for the period a temporary license is valid. (c) The board may issue a temporary faculty license to practice chiropractic to a person as provided by this section. The person: (1) must hold a current chiropractic license that is unrestricted and not subject to a disciplinary order or probation in another state or a Canadian province; (2) may not hold a chiropractic license in another state or a Canadian province that has any restrictions, disciplinary orders, or probation; (3) must pass the examination required under Section 201.304(a)(2); (4) must have been engaged in the practice of chiropractic: (A) for at least the three years preceding the date of the application under this section; or (B) as a chiropractic educator in a doctor of chiropractic degree program accredited by the Council on Chiropractic Education for at least the three years preceding the date of the application under this section; and (5) must hold a salaried faculty position of at least the level of assistant professor and be working full-time at: (A) Parker College of Chiropractic; or (B) Texas Chiropractic College. (d) A person is eligible for a temporary license under Subsection (c) if the person holds a faculty position of at least the level of assistant professor, the person works at least part-time at an institution listed in Subsection (c)(5), and:
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(1) the person is on active duty in the United States armed forces; and (2) the person's practice under the temporary license will fulfill critical needs of the citizens of this state. (e) A chiropractor who is issued a temporary license under Subsection (c) must sign an oath on a form prescribed by the board swearing that the person: (1) has read and is familiar with this chapter and board rules; (2) will abide by the requirements of this chapter and board rules while practicing under the chiropractor's temporary license; and (3) will be subject to the disciplinary procedures of the board. (f) A chiropractor holding a temporary license under Subsection (c) and the chiropractor's chiropractic school must file affidavits with the board affirming acceptance of the terms and limits imposed by the board on the chiropractic activities of the chiropractor. (g) A temporary license issued under Subsection (c) is valid for one year. (h) The holder of a temporary license issued under Subsection (c) is limited to the teaching confines of the applying chiropractic school as a part of the chiropractor's duties and responsibilities assigned by the program and may not practice chiropractic outside of the setting of the chiropractic school or an affiliate of the chiropractic school. (i) The application for a temporary license under Subsection (c) must be made by the chiropractic school in which the chiropractor teaches and must contain the information and documentation requested by the board. The application must be endorsed by the dean of the chiropractic school or the president of the institution. (j) A chiropractor who holds a temporary license issued under Subsection (c) and who wishes to receive a permanent unrestricted license must meet the requirements for issuance of a permanent unrestricted license, including any examination requirements. (k) The board shall adopt: (1) rules governing the issuance of a renewal temporary faculty license, including a rule that permits a person licensed
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under Subsection (c) to continue teaching while an application for a renewal temporary license is pending; (2) fees for the issuance of a temporary license and a renewal temporary license; and (3) an application form for temporary licenses and renewal temporary licenses to be issued under this section. (l) The fee for a renewal temporary license issued under Subsection (k)(1) must be less than the amount of the fee for a temporary license issued under Subsection (c). (m) A chiropractic school shall notify the board not later than 72 hours after the time: (1) except as provided by Subdivision (2), a chiropractor licensed under Subsection (c) ceases to hold a full-time salaried position of at least the level of assistant professor at the school; and (2) a chiropractor described by Subsection (d) ceases to hold a part-time salaried position of at least the level of assistant professor at the school. (n) The board shall revoke a license issued under this section if the license holder no longer satisfies the requirements of this section.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2009, 81st Leg., R.S., Ch. 957 (H.B. 3450), Sec. 1, eff. September 1, 2009.
Sec. 201.309. LICENSE ISSUANCE TO CERTAIN OUT-OF-STATE APPLICANTS. The board shall issue a license to practice chiropractic to an out-of-state applicant who: (1) submits a written application to the board on a form prescribed by the board, accompanied by the application fee set by the board and any other information requested by the board; (2) is licensed in good standing to practice chiropractic in another state or foreign country that has licensing requirements substantially equivalent to the requirements of this chapter;
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(3) has not been the subject of a disciplinary action and is not the subject of a pending investigation in any jurisdiction in which the applicant is or has been licensed; (4) has graduated from a doctor of chiropractic degree program accredited by the Council on Chiropractic Education and approved by rule by the board; (5) has passed a national or other examination recognized by the board relating to the practice of chiropractic; (6) has passed the board's jurisprudence examination; (7) has practiced chiropractic: (A) for at least the three years immediately preceding the date of the application under this section; or (B) as a chiropractic educator in a doctor of chiropractic degree program accredited by the Council on Chiropractic Education for at least the three years immediately preceding the date of the application under this section; and (8) meets any other requirements adopted by rule by the board under this chapter.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 899, Sec. 1. Amended by: Acts 2007, 80th Leg., R.S., Ch. 802 (S.B. 776), Sec. 5, eff. June 15, 2007.
Sec. 201.311. INACTIVE STATUS. (a) The board by rule shall adopt a system by which a license holder may place the license on inactive status. A license holder must apply for inactive status, on a form prescribed by the board, before the expiration date of the license. (b) A license holder whose license is on inactive status: (1) is not required to pay license renewal fees; and (2) may not perform an activity regulated under this chapter. (c) A license holder whose license is on inactive status may return to active practice by notifying the board in writing. The board shall remove the license holder's license from inactive status
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after the holder pays an administrative fee and complies with any educational or other requirements established by board rules. (d) The board by rule shall establish a rule setting a limit on the time a license holder's license may remain on inactive status.
Sec. 201.312. REGISTRATION OF FACILITIES. (a) The board by rule shall adopt requirements for registering chiropractic facilities as necessary to protect the public health, safety, and welfare. (b) The rules adopted under this section must: (1) specify the registration requirements for a chiropractic facility; (2) prescribe the standards for the chiropractic facility registration program; (3) provide for the issuance of a separate certificate of registration to an owner of a chiropractic facility for each chiropractic facility owned by the owner; and (4) provide for the board to send notice to an owner of a chiropractic facility and to each chiropractor practicing in the facility of the impending expiration of the facility's certificate of registration before the expiration of the certificate. (c) The standards adopted under Subsection (b)(2) must be consistent with industry standards for the practice of chiropractic. (d) To register a chiropractic facility, the owner of the facility must: (1) file with the board a written application for registration; and (2) pay, with the application, a registration fee in an amount set by the board not to exceed $75. (e) The board may issue a certificate of registration only to a chiropractic facility that complies with the requirements of this section. (f) A certificate of registration under this section must be renewed annually. To renew the certificate, the certificate holder shall apply to the board and pay an annual fee equal to the amount of the registration fee under Subsection (d)(2).
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(g) A person licensed to practice chiropractic in this state is subject to disciplinary action under this chapter if the person practices chiropractic in a chiropractic facility that the person knows is not registered under this section. (h) An owner of a chiropractic facility who violates this section or a rule adopted under this section is subject to disciplinary action by the board in the same manner as a license holder who violates this chapter or a rule adopted under this chapter.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 227, Sec. 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 329, Sec. 2.
SUBCHAPTER H. ANNUAL REGISTRATION AND LICENSE RENEWAL
Sec. 201.351. ANNUAL REGISTRATION. A chiropractor may not practice chiropractic in this state unless the chiropractor annually registers with the board not later than January 1 of each year.
Sec. 201.352. APPLICATION FOR ANNUAL REGISTRATION. (a) A person required to register shall: (1) file annually with the board a written application for registration; and (2) pay, with the application, an annual registration fee to the board. (b) The application must include: (1) the person's full name, age, post office address, and place of residence; (2) each place where the person is engaged in the practice of chiropractic; (3) the college of chiropractic from which the person graduated; and (4) the number and date of the person's license. (c) On receipt of the application and registration fee, the board shall determine whether the applicant is licensed to practice
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chiropractic in this state based on the records of the board or other sources the board considers reliable. (d) If the board determines that the applicant is licensed to practice chiropractic in this state, the board shall issue an annual registration receipt certifying that the applicant has filed an application and paid the registration fee. (e) The registration receipt is not evidence in a prosecution for the unlawful practice of chiropractic under Section 201.605 that the person is lawfully entitled to practice chiropractic.
Sec. 201.353. LICENSE EXPIRATION DATE. (a) The board by rule may adopt a system under which licenses expire on various dates during the year. (b) For a year in which the license expiration date is changed, license fees payable on January 1 shall be prorated on a monthly basis so that each license holder pays only the portion of the fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable.
This section was amended by the 84th Legislature. Pending publication of the current statutes, see H.B. 7, 84th Legislature, Regular Session, for amendments affecting this section.
Sec. 201.354. LICENSE RENEWAL. (a) A person may renew an unexpired license by paying the required renewal fee to the board before the expiration date of the license. (b) At least 30 days before the expiration of a person's license, the board shall send written notice of the impending license expiration to the person at the person's last known address according to the board's records. (c) The annual renewal fee applies to each person licensed by the board, even if the person is not practicing chiropractic in this state.
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(d) A person whose license has been expired for 90 days or less may renew the license by paying to the board a renewal fee that is equal to the sum of 1-1/2 times the annual renewal fee set by the board under Section 201.153(a) and the increase in that fee required by Section 201.153(b). If a person's license has been expired for more than 90 days but less than one year, the person may renew the license by paying to the board a renewal fee that is equal to the sum of two times the annual renewal fee set by the board under Section 201.153(a) and the increase in that fee required by Section 201.153 (b). (e) Except as provided by Subsection (g) and Section 201.355, a person may not renew a license that has been expired for one year or more. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license. (f) A person who practices chiropractic without an annual renewal receipt for the current year practices chiropractic without a license. (g) A person may renew a license that has been expired for at least one year but not more than three years if: (1) the board determines according to criteria adopted by board rule that the person has shown good cause for the failure to renew the license; and (2) the person pays to the board: (A) the annual renewal fee set by the board under Section 201.153(a) for each year in which the license was expired; (B) an additional fee in an amount equal to the sum of: (i) the annual renewal fee set by the board under Section 201.153(a), multiplied by the number of years the license was expired, prorated for fractional years; and (ii) two times the annual renewal fee set by the board under Section 201.153(a); and (C) the increase in the annual renewal fee required by Section 201.153(b).
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 230, Sec. 1, eff. Sept. 1, 2001. Amended by:
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Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 24, eff. September 1, 2005.
Sec. 201.355. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The board may renew without reexamination an expired license of a person who was licensed in this state, moved to another state or foreign country, and is currently licensed in good standing and has been in practice in the other state or foreign country for the two years preceding application. (b) The person must pay to the board a fee that is equal to the normally required renewal fee for the license. (c) For purposes of this section, a person is currently licensed if the person is licensed by another chiropractic licensing board recognized by the board. The board shall adopt requirements for recognizing another chiropractic licensing board that: (1) has licensing requirements substantially equivalent to the requirements of this chapter; and (2) maintains professional standards considered by the board to be equivalent to the standards under this chapter.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 329, Sec. 3. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 25, eff. September 1, 2005.
Sec. 201.356. CONTINUING EDUCATION. (a) The board by rule shall: (1) assess the continuing education needs of license holders; (2) adopt requirements for mandatory continuing education for license holders in subjects relating to the practice of chiropractic; (3) establish a minimum number of hours of continuing education required to renew a license; and (4) develop a process to evaluate and approve continuing education courses.
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(b) The board may require license holders to attend continuing education courses specified by the board. The board shall adopt a procedure to assess a license holder's participation and performance in continuing education programs. (c) The board shall identify the key factors for the competent performance by a license holder of the license holder's professional duties. (d) The board shall notify license holders of approved continuing education courses at least annually.
SUBCHAPTER I. PATIENT CONFIDENTIALITY
Sec. 201.401. DEFINITION OF PATIENT. In this subchapter, "patient" means any person who consults or is seen by a chiropractor to receive chiropractic care.
Sec. 201.402. PATIENT CONFIDENTIALITY. (a) Communications between a chiropractor and a patient relating to or in connection with any professional services provided by a chiropractor to the patient are confidential and privileged and may not be disclosed except as provided by this subchapter. (b) Records of the identity, diagnosis, evaluation, or treatment of a patient by a chiropractor that are created or maintained by a chiropractor are confidential and privileged and may not be disclosed except as provided by this subchapter. (c) A person who receives information from the confidential communications or records, excluding a person listed in Section 201.404(a) who is acting on the patient's behalf, may not disclose the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained. (d) The prohibitions of this section apply to confidential communications or records concerning any patient regardless of when the patient received the services of a chiropractor.
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(e) The privilege of confidentiality may be claimed by the patient or chiropractor acting on the patient's behalf. The authority of a chiropractor to claim the privilege of confidentiality on behalf of a patient is presumed in the absence of evidence to the contrary.
Sec. 201.403. EXCEPTIONS TO CONFIDENTIALITY FOR ADMINISTRATIVE PROCEDURE. (a) Section 201.402 does not apply in a court or administrative proceeding: (1) brought by a patient against a chiropractor, including: (A) a malpractice proceeding; and (B) any criminal or license revocation proceeding in which the patient is a complaining witness and disclosure is relevant to the claims or defense of the chiropractor; (2) in which the patient or a person authorized to act on the patient's behalf submits a written consent to the release of confidential information, as provided by Section 201.405; (3) brought to substantiate and collect on a claim for chiropractic services rendered to the patient; (4) brought by the patient or a person on the patient's behalf who is attempting to recover monetary damages for any physical or mental condition, including death of the patient; (5) brought in connection with a disciplinary investigation of a chiropractor under this chapter, except as provided by Subsection (b); (6) brought in connection with a criminal investigation of a chiropractor if the board is participating or assisting in the investigation or proceeding by providing certain records obtained from the chiropractor, except as provided by Subsection (c); and (7) brought in connection with a criminal prosecution in which the patient is a victim, witness, or defendant except as provided by Subsection (d). (b) The board shall protect the identity of any patient whose chiropractic records are examined in connection with an investigation or proceeding described by Subsection (a)(5), excluding patients described by Subsection (a)(1) and patients who have submitted
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written consent to the release of their chiropractic records as provided by Section 201.405. (c) The board shall protect the identity of any patient whose records are provided in connection with an investigation or proceeding described by Subsection (a)(6), excluding patients described by Subsection (a)(1) and patients who have submitted written consent to the release of their chiropractic records as provided by Section 201.405. The board does not authorize the release of any confidential information for the purpose of instigating or substantiating criminal charges against a patient. (d) In a proceeding described by Subsection (a)(7), records or communications are not discoverable until the court in which the prosecution is pending makes an in camera determination of relevancy. A determination of relevancy by a court under this subsection is not a determination of the admissibility of any record or communication. (e) Information is discoverable in a court or administrative proceeding in this state if the court or administrative body has jurisdiction over the subject matter of the proceeding.
Sec. 201.404. EXCEPTIONS TO CONFIDENTIALITY FOR OTHER CIRCUMSTANCES. (a) In circumstances other than court or administrative proceedings, exceptions to Section 201.402 exist only for: (1) a governmental agency, if the disclosure is required or permitted by law except as provided by Subsection (b); (2) medical or law enforcement personnel, if the chiropractor determines that a probability of imminent physical injury to the patient, the chiropractor, or others exists or a probability of immediate mental or emotional injury to the patient exists; (3) qualified personnel for the purpose of management audits, financial audits, program evaluations, or research, under the conditions provided by Subsection (c); (4) those parts of the records reflecting charges and specific services performed, if necessary to collect fees for
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services provided by a chiropractor, a professional association, or another entity qualified to render or arrange for services; (5) any person who possesses a written consent described by Section 201.405; (6) an individual, corporation, or governmental agency involved in paying or collecting fees for services performed by a chiropractor; (7) another chiropractor or personnel under the direction of the chiropractor who participate in the diagnosis, evaluation, or treatment of the patient; or (8) an official legislative inquiry of state hospitals or state schools under the conditions provided under Subsection (d). (b) A governmental agency shall protect the identity of any patient whose chiropractic records are examined under Subsection (a) (1). (c) Personnel described by Subsection (a)(3) may not directly or indirectly identify a patient in any report of research, audit, or evaluation or otherwise disclose a patient's identity in any manner. (d) Information released under Subsection (a)(8) may not include: (1) information or records that identify a patient or client for any purpose without proper consent given by the patient; and (2) records that were not created by the state hospital or school or its employees.
Sec. 201.405. CONSENT FOR RELEASE. (a) In this section, "chiropractic records" means any record relating to the history, diagnosis, treatment, or prognosis of a patient. (b) Consent for the release of confidential information must be in writing and signed by: (1) the patient; (2) a parent or legal guardian if the patient is a minor; (3) a legal guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs;
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(4) an attorney ad litem appointed for the patient, as authorized by: (A) Subtitle B, Title 6, Health and Safety Code; (B) Subtitle C, D, or E, Title 7, Health and Safety Code; (C) Chapter XIII, Texas Probate Code; (D) Chapter 107, Family Code; or (E) another applicable provision; or (5) a personal representative if the patient is deceased. (c) The written consent must specify: (1) the information records covered by the release; (2) the reason or purpose for the release; and (3) the person to whom the information is to be released. (d) The patient or the person authorized to consent to disclosure under this section may withdraw consent to the release of any information. Withdrawal of consent does not affect any information disclosed before written notice of the withdrawal. (e) A person who receives information made confidential by this chapter may disclose the information to another only to the extent that disclosure is consistent with the authorized purposes for which consent to release the information was obtained. (f) A chiropractor shall furnish copies of chiropractic records or a summary or narrative of the records requested under a written consent for release of the information. The chiropractor shall furnish the information within a reasonable time. The patient or a person acting on the patient's behalf shall pay a reasonable fee for the information provided by the chiropractor. The chiropractor may delete confidential information about another person who has not consented to the release. (g) A chiropractor who determines that access to information requested under Subsection (f) would be harmful to the physical, mental, or emotional health of the patient may refuse to release the information requested under this section.
SUBCHAPTER J. PRACTICE BY LICENSE HOLDER
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Sec. 201.451. DELEGATION TO ASSISTANTS. (a) The board by rule shall establish guidelines relating to the tasks and procedures that a chiropractor may delegate to an assistant. (b) A chiropractor who delegates a task or procedure under this section retains full responsibility for the task or procedure.
Sec. 201.452. USE OF X-RAY. (a) The board may require evidence of proper training and safety in the use of analytical and diagnostic x-ray in conformity with: (1) Chapter 401, Health and Safety Code; and (2) rules of the Texas Radiation Control Agency and the Texas Department of Health. (b) This section does not modify or amend: (1) Section 201.002 by enlarging the scope of the practice of chiropractic or the acts that a chiropractor is authorized to perform; or (2) Chapter 151. (c) The board shall implement any federal and state requirements relating to radiologic training of the employees of a chiropractor.
Sec. 201.453. MALPRACTICE SETTLEMENT INFORMATION AND EXPERT REPORTS. (a) The Texas Department of Insurance shall provide to the board any information received by the department regarding a settlement of a malpractice claim against a chiropractor. (b) An insurer who delivers or issues for delivery in this state professional liability insurance coverage to a chiropractor who practices in this state shall provide to the board a copy of any expert report served under Section 74.351, Civil Practice and Remedies Code, in a malpractice action against the chiropractor.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 27, eff. September 1, 2005.
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SUBCHAPTER K. DISCIPLINARY PROCEDURES
Sec. 201.501. DISCIPLINARY POWERS OF BOARD. (a) On a determination that a person has violated this chapter or a rule adopted by the board under this chapter, the board: (1) shall revoke or suspend the person's license, place on probation a person whose license has been suspended, or reprimand a license holder; or (2) may impose an administrative penalty. (b) If a license suspension is probated, the board may require the license holder to: (1) report regularly to the board on matters that are the basis of the probation; (2) limit practice to the areas prescribed by the board; or (3) continue or review continuing professional education until the license holder attains a degree of skill satisfactory to the board in those areas that are the basis of the probation. (c) In addition to other disciplinary actions authorized by this chapter, the board may require a license holder who violates this chapter to participate in a continuing education program. The board shall specify the continuing education programs that the license holder may attend and the number of hours that the license holder must complete. (d) Disciplinary proceedings of the board are governed by Chapter 2001, Government Code.
Sec. 201.502. GROUNDS FOR REFUSAL, REVOCATION, OR SUSPENSION OF LICENSE. (a) The board may refuse to admit a person to examinations and may revoke or suspend a license or place a license holder on probation for a period determined by the board for: (1) violating this chapter or a rule adopted under this chapter, including committing an act prohibited under Section 201.5025;
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(2) engaging in deception or fraud in the practice of chiropractic; (3) presenting to the board or using a license, certificate, or diploma or a transcript of a license, certificate, or diploma that was illegally or fraudulently obtained, counterfeited, or materially altered; (4) presenting to the board an untrue statement or a document or testimony that was illegally used to pass the examination; (5) being convicted of a crime involving moral turpitude or a felony; (6) procuring or assisting in the procuring of an abortion; (7) engaging in grossly unprofessional conduct or dishonorable conduct of a character likely to deceive or defraud the public; (8) having a habit of intemperance or drug addiction or another habit that, in the opinion of the board, endangers the life of a patient; (9) using an advertising statement that is false or that tends to mislead or deceive the public; (10) directly or indirectly employing or associating with a person who, in the course of the person's employment, commits an act constituting the practice of chiropractic when the person is not licensed to practice chiropractic; (11) advertising professional superiority, or advertising the performance of professional services in a superior manner, if that advertising is not readily subject to verification; (12) purchasing, selling, bartering, using, or offering to purchase, sell, barter, or use a chiropractic degree, license, certificate, or diploma or transcript of a license, certificate, or diploma in or relating to an application to the board for a license to practice chiropractic; (13) altering with fraudulent intent a chiropractic license, certificate, or diploma or transcript of a chiropractic license, certificate, or diploma; (14) impersonating or acting as proxy for another in an examination required by this chapter for a chiropractic license; (15) impersonating a licensed chiropractor;
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(16) allowing one's chiropractic license to be used by another person to practice chiropractic; (17) being proved insane by a person having authority to make that determination; (18) failing to use proper diligence in the practice of chiropractic or using gross inefficiency in the practice of chiropractic; (19) failing to clearly differentiate a chiropractic office or clinic from another business or enterprise; (20) personally soliciting a patient or causing a patient to be solicited by the use of a case history of another patient of another chiropractor; (21) using for the purpose of soliciting patients an accident report prepared by a peace officer in a manner prohibited by Section 38.12, Penal Code; or (22) advertising using the term "physician" or "chiropractic physician" or any combination or derivation of the term "physician." (b) Notwithstanding Subsection (a)(22), the term "chiropractic physician" may be used for the express purpose of filing a claim for necessary services within the definition of chiropractic under this chapter if the billing for the services has universally applied, predetermined coding or description requirements that are a prerequisite to appropriate reimbursement.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 28, eff. September 1, 2005.
Sec. 201.5025. PROHIBITED PRACTICES BY CHIROPRACTOR OR LICENSE APPLICANT. (a) A chiropractor or an applicant for a license to practice chiropractic commits a prohibited practice if that person: (1) submits to the board a false or misleading statement, document, or certificate in an application for a license; (2) commits fraud or deception in taking or passing an examination;
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(3) commits unprofessional or dishonorable conduct that is likely to deceive or defraud the public, as provided by Section 201.5026, or injure the public; (4) engages in conduct that subverts or attempts to subvert an examination process required by this chapter for a chiropractic license; (5) directly or indirectly employs a person whose license to practice chiropractic has been suspended, canceled, or revoked; (6) associates in the practice of chiropractic with a person: (A) whose license to practice chiropractic has been suspended, canceled, or revoked; or (B) who has been convicted of the unlawful practice of chiropractic in this state or elsewhere; or (7) directly or indirectly aids or abets the practice of chiropractic by a person that is not licensed to practice chiropractic by the board. (b) For purposes of Subsection (a)(4), conduct that subverts or attempts to subvert the chiropractic licensing examination process includes, as prescribed by board rule, conduct that violates: (1) the security of the examination materials; (2) the standard of test administration; or (3) the accreditation process.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 29, eff. September 1, 2005.
Sec. 201.5026. UNPROFESSIONAL OR DISHONORABLE CONDUCT. (a) For purposes of Section 201.5025(a)(3), unprofessional or dishonorable conduct that is likely to deceive or defraud the public includes conduct in which a chiropractor: (1) commits an act that violates any state or federal law if the act is connected with the chiropractor's practice of chiropractic; (2) prescribes or administers a treatment that is nontherapeutic in nature or nontherapeutic in the manner the treatment is prescribed or administered; (3) violates Section 311.0025, Health and Safety Code;
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(4) fails to supervise adequately the activities of those acting under the supervision of the chiropractor; or (5) delegates professional chiropractic responsibility or acts to a person if the delegating chiropractor knows or has reason to know that the person is not qualified by training, experience, or licensure to perform the responsibility or acts. (b) A complaint, indictment, or conviction of a violation is not necessary for the enforcement of Subsection (a)(1). Proof of the commission of the act while in the practice of chiropractic or under the guise of the practice of chiropractic is sufficient for the board's action.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 29, eff. September 1, 2005.
Sec. 201.503. SCHEDULE OF SANCTIONS. (a) The board by rule shall adopt a schedule of the maximum amount of sanctions that may be assessed against a license holder for each category of violation of this chapter. In establishing the schedule of sanctions or in imposing the amount of an administrative penalty under this chapter, the board shall consider: (1) the seriousness of the violation, including the nature, circumstances, extent, or gravity of any prohibited acts and the hazard or potential hazard created to the health, safety, or economic welfare of the public; (2) the economic harm to property or the environment caused by the violation; (3) the history of previous violations; (4) the amount necessary to deter a future violation; (5) efforts to correct the violation; and (6) any other matter that justice may require. (b) The State Office of Administrative Hearings shall use the schedule of sanctions for any sanction imposed as the result of a hearing conducted by that office.
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Sec. 201.504. INFORMAL PROCEEDINGS; REFUNDS. (a) The board by rule shall adopt procedures governing: (1) informal disposition of a contested case under Section 2001.056, Government Code; and (2) an informal proceeding held in compliance with Section 2001.054, Government Code. (b) Rules adopted under Subsection (a) must: (1) provide the complainant and the license holder an opportunity to be heard; and (2) require the presence of a representative of the attorney general or the board's legal counsel to advise the board or the board's employees. (c) Subject to Subsection (d), the board may order a license holder to pay a refund to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty under this chapter. (d) The amount of a refund ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the license holder for a service regulated by this chapter. The board may not require payment of other damages or estimate harm in a refund order.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 30, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 31, eff. September 1, 2005.
Sec. 201.505. HEARINGS. (a) A person is entitled to a hearing before the board if the board proposes to: (1) refuse the person's application for a license; (2) suspend or revoke the person's license; or (3) place on probation or reprimand the person. (b) The board is not bound by strict rules of evidence or procedure in conducting its proceedings and hearings, but the board must base its determination on sufficient legal evidence. (c) The board may:
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(1) issue subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of books, records, and other documents; (2) administer oaths; and (3) take testimony concerning all matters within its jurisdiction.
Sec. 201.506. ENFORCEMENT COMMITTEE. (a) The board shall appoint an enforcement committee to: (1) oversee and conduct the investigation of complaints filed with the board under this chapter; and (2) perform other enforcement duties as directed by the board. (b) The enforcement committee consists of three board members. Two members must be chiropractors, and one member must be a representative of the public. (c) The attorney general shall provide legal counsel to the enforcement committee concerning enforcement matters, including the investigation and disposition of complaints.
Sec. 201.5065. REQUIRED SUSPENSION OR REVOCATION OF LICENSE FOR CERTAIN OFFENSES. (a) The board shall suspend a chiropractor's license on proof that the chiropractor has been: (1) initially convicted of: (A) a felony; (B) a misdemeanor under Chapter 22, Penal Code, other than a misdemeanor punishable by fine only; (C) a misdemeanor on conviction of which a defendant is required to register as a sex offender under Chapter 62, Code of Criminal Procedure; (D) a misdemeanor under Section 25.07, Penal Code; or (E) a misdemeanor under Section 25.071, Penal Code; or (2) subject to an initial finding by the trier of fact of guilt of a felony under:
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(A) Chapter 481 or 483, Health and Safety Code; (B) Section 485.033, Health and Safety Code; or (C) the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Section 801 et seq.). (b) On final conviction for an offense described by Subsection (a), the board shall revoke the chiropractor's license.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 32, eff. September 1, 2005.
Sec. 201.507. TEMPORARY LICENSE SUSPENSION. (a) The enforcement committee may temporarily suspend the license of a license holder on an emergency basis if the enforcement committee determines from the evidence or information presented to the committee that the continued practice of chiropractic by the license holder constitutes a continuing or imminent threat to the public welfare. (b) The board by rule shall adopt procedures for the temporary suspension of a license under this section. (c) A license temporarily suspended under this section may be suspended without notice or hearing if, at the time the suspension is ordered, a hearing on whether disciplinary proceedings under this chapter should be initiated against the license holder is scheduled to be held not later than the 14th day after the date of the suspension. (d) A second hearing on the suspended license shall be held not later than the 60th day after the date the suspension is ordered. If the second hearing is not held in the time required by this subsection, the suspended license is automatically reinstated. (e) A temporary suspension may also be ordered on a vote of two-thirds of the board.
Sec. 201.508. POWERS OF DISTRICT COURTS; DUTIES OF DISTRICT AND COUNTY ATTORNEYS. (a) A district court may revoke or suspend a chiropractor's license on proof of a violation of the law relating to the practice of chiropractic.
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(b) On the request of the board, a district or county attorney shall represent the state by filing and prosecuting a judicial proceeding for the revocation, cancellation, or suspension of the chiropractor's license. (c) The district or county attorney may institute the judicial proceeding by filing a petition that: (1) is in writing; (2) states the grounds for prosecution; and (3) is signed officially by the prosecuting officer. (d) Citation must be issued in the name of the state in the manner and form as in other cases and shall be served on the defendant, who is required to answer within the time and manner provided by law in civil cases. (e) If a chiropractor, after proper citation, is found guilty or fails to appear and deny the charge, the court shall: (1) enter an order to suspend or revoke the chiropractor's license; and (2) give proper judgment for costs.
Sec. 201.509. REPRESENTATION BY ATTORNEY GENERAL. (a) The board may apply to the attorney general for representation by stating that the board previously requested the representation of a district or county attorney under Section 201.508 and the district or county attorney failed to prosecute or proceed against the person accused of violating this chapter. (b) The attorney general shall institute a civil or criminal proceeding against the person in the county of the person's residence.
Sec. 201.510. RIGHT TO APPEAL. (a) A person whose license to practice chiropractic has been revoked or suspended or against whom the board has imposed an administrative penalty may appeal to a Travis County district court.
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(b) The decision of the board may not be enjoined or stayed unless the person appeals the board's decision as provided by Subsection (a) and provides notices to the board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 228, Sec. 1, eff. Sept. 1, 2001.
Sec. 201.511. REISSUANCE OF LICENSE. (a) On application, the board may reissue a license to practice chiropractic to a person whose license has been canceled or suspended. (b) An applicant whose license has been canceled or revoked: (1) may not apply for reissuance before the first anniversary of the date the license was canceled or revoked; and (2) must apply for reissuance in the manner and form required by the board.
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 201.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The board may impose an administrative penalty on a person licensed or regulated under this chapter if the person violates this chapter or a rule or order adopted under this chapter.
Sec. 201.552. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $1,000. (b) Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.
Sec. 201.553. ENFORCEMENT COMMITTEE RECOMMENDATIONS. (a) On a determination by the enforcement committee that a violation of this
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chapter or a rule or order adopted under this chapter occurred, the committee may issue a report to the board stating: (1) the facts on which the determination is based; and (2) the enforcement committee's recommendation on the imposition of the administrative penalty, including a recommendation on the amount of the penalty. (b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the violation by certified mail to the person on whom the penalty may be imposed. (c) The notice issued under this section must: (1) include a brief summary of the alleged violation; (2) state the amount of the recommended penalty; and (3) inform the person of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.
Sec. 201.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Not later than the 20th day after the date a person receives the notice under Section 201.553, the person may: (1) accept in writing the enforcement committee's determination and recommended administrative penalty; or (2) make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both. (b) If the person accepts the enforcement committee's determination and recommended penalty, the board by order shall approve the determination and impose the recommended penalty.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.0515, eff. Sept. 1, 2001.
Sec. 201.555. HEARING ON ENFORCEMENT COMMITTEE RECOMMENDATIONS. (a) If the person requests a hearing or fails to respond timely to the notice, the executive director shall set a hearing and give notice of the hearing to the person.
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(b) A hearing set by the executive director under Subsection (a) shall be held by an administrative law judge of the State Office of Administrative Hearings. (c) The administrative law judge shall: (1) make findings of fact and conclusions of law; and (2) promptly issue to the board a proposal for a decision as to the occurrence of the violation and the amount of a proposed administrative penalty.
Sec. 201.556. DECISION BY BOARD. (a) Based on the findings of fact, conclusions of law, and proposal for a decision, the board by order may determine that: (1) a violation has occurred and impose an administrative penalty; or (2) a violation did not occur. (b) The notice of the board's order given to the person under Chapter 2001, Government Code, must include a statement of the right of the person to judicial review of the order.
Sec. 201.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the board's order becomes final, the person shall: (1) pay the administrative penalty; (2) pay the penalty and file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both; or (3) without paying the penalty, file a petition for judicial review contesting the fact of the violation, the amount of the penalty, or both. (b) Within the 30-day period, a person who acts under Subsection (a)(3) may: (1) stay enforcement of the penalty by: (A) paying the penalty to the court for placement in an escrow account; or
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(B) giving to the court a supersedeas bond that is approved by the court and that: (i) is for the amount of the penalty; and (ii) is effective until judicial review of the board's order is final; or (2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and (B) giving a copy of the affidavit to the executive director by certified mail. (c) If the executive director receives a copy of an affidavit under Subsection (b)(2), the director may, at the direction of the enforcement committee, file with the court a contest to the affidavit not later than the fifth day after the date the copy is received. (d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and stay the enforcement of the penalty on finding that the alleged facts are true. The person who files the affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond.
Sec. 201.558. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the executive director may, at the direction of the enforcement committee, refer the matter to the attorney general for collection of the penalty.
Sec. 201.559. DETERMINATION BY COURT. (a) If a court sustains the finding that a violation occurred after the court reviews the order of the board imposing an administrative penalty, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced penalty.
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(b) If the court does not sustain the finding that a violation occurred, the court shall order that an administrative penalty is not owed.
Sec. 201.560. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review, the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final: (1) order the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or (2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond. (b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.
Sec. 201.561. ADMINISTRATIVE PROCEDURE. All proceedings under this subchapter are subject to Chapter 2001, Government Code.
SUBCHAPTER M. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 201.601. INJUNCTIVE RELIEF. (a) The board may institute in the board's name an action to restrain a violation of this chapter. An action under this subsection is in addition to any other action authorized by law. (b) The state may sue for an injunction to restrain the practice of chiropractic in violation of this chapter. (c) The state shall be represented in suits for injunction by:
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(1) the attorney general; (2) the district attorney of the district in which the defendant resides; or (3) the county attorney of the county in which the defendant resides. (d) A suit for injunction under Subsection (b) may not be filed before the final conviction for a violation of this chapter of the party sought to be enjoined. (e) The state is not required to show that a person is personally injured by the defendant's unlawful practice of chiropractic. (f) A court may not grant a temporary or permanent injunction until a hearing of the complaint on its merits. A court may not issue an injunction or restraining order until the final trial and final judgment on the merits of the suit. (g) If the defendant is shown to have been unlawfully practicing chiropractic or to have been about to unlawfully practice chiropractic, the court shall perpetually enjoin the defendant from practicing chiropractic in the manner that was the subject of the suit. (h) A defendant who disobeys the injunction is subject to the penalties provided by law for the violation of an injunction. The remedy by injunction is in addition to a criminal prosecution. (i) A suit for injunction under this section shall be advanced for trial on the docket of the trial court and advanced and tried in the appellate courts in the same manner as other suits for injunction.
Sec. 201.6015. CEASE AND DESIST ORDER. (a) If it appears to the board that a person is engaging in an act or practice that constitutes the practice of chiropractic without a license or registration under this chapter, the board, after notice and opportunity for a hearing, may issue a cease and desist order prohibiting the person from engaging in that activity. (b) A violation of an order under this section constitutes grounds for imposing an administrative penalty under Subchapter L.
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Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 33, eff. September 1, 2005.
Sec. 201.602. MONITORING LICENSE HOLDER. The board by rule shall develop a system for monitoring compliance with the requirements of this chapter of a license holder who is the subject of disciplinary action. Rules adopted under this section must include procedures to: (1) monitor for compliance a license holder who is ordered by the board to perform certain acts; and (2) identify and monitor each license holder who is the subject of disciplinary action and who presents a continuing threat to the public welfare through the practice of chiropractic.
Sec. 201.603. CIVIL PENALTY. (a) A person who violates this chapter or a rule adopted by the board under this chapter is liable to the state for a civil penalty of $1,000 for each day of violation. (b) At the request of the board, the attorney general shall bring an action to recover a civil penalty authorized by this section.
Sec. 201.604. GENERAL CRIMINAL PENALTY. A person commits an offense if the person violates this chapter. An offense under this section is a misdemeanor punishable by a fine of not less than $50 or more than $500 or by confinement in the county jail for not more than 30 days.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 34, eff. September 1, 2005.
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Sec. 201.605. CRIMINAL PENALTY: PRACTICE WITHOUT LICENSE. (a) A person commits an offense if the person violates Section 201.301. (b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor. (c) If it is shown on the trial of the offense that the defendant has been previously convicted under Subsection (a), the offense is a felony of the third degree. (d) Each day of violation constitutes a separate offense.
Sec. 201.606. CRIMINAL PENALTY: PROVIDING CHIROPRACTIC TREATMENT OR SERVICES WHILE INTOXICATED. (a) In this section, "intoxicated" has the meaning assigned by Section 49.01, Penal Code. (b) A person commits an offense if the person is licensed or regulated under this chapter, provides chiropractic treatment or services to a patient while intoxicated, and, by reason of that conduct, places the patient at a substantial and unjustifiable risk of harm. (c) An offense under this section is a state jail felony.
Added by Acts 2005, 79th Leg., Ch. 1020 (H.B. 972), Sec. 35, eff. September 1, 2005.
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CHAPTER 205. ACUPUNCTURE
Sec. 205.001. DEFINITIONS. In this chapter: (1) "Acudetox specialist" means a person certified under Section 205.303. (2) "Acupuncture" means: (A) the nonsurgical, nonincisive insertion of an acupuncture needle and the application of moxibustion to specific areas of the human body as a primary mode of therapy to treat and mitigate a human condition, including evaluation and assessment of the condition; and (B) the administration of thermal or electrical treatments or the recommendation of dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction with the treatment described by Paragraph (A). (3) "Acupuncture board" means the Texas State Board of Acupuncture Examiners. (4) "Acupuncturist" means a person who: (A) practices acupuncture; and (B) directly or indirectly charges a fee for the performance of acupuncture services. (5) "Chiropractor" means a person licensed to practice chiropractic by the Texas Board of Chiropractic Examiners. (6) "Executive director" means the executive director of the Texas Medical Board. (7) "Medical board" means the Texas Medical Board. (8) "Physician" means a person licensed to practice medicine by the Texas Medical Board.
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Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 719, Sec. 1, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.01, eff. September 1, 2005.
Sec. 205.003. EXEMPTION; LIMITATION. (a) This chapter does not apply to a health care professional licensed under another statute of this state and acting within the scope of the license. (b) This chapter does not: (1) limit the practice of medicine by a physician; (2) permit the unauthorized practice of medicine; or (3) permit a person to dispense, administer, or supply a controlled substance, narcotic, or dangerous drug unless the person is authorized by other law to do so.
SUBCHAPTER B. TEXAS STATE BOARD OF ACUPUNCTURE EXAMINERS
Sec. 205.051. BOARD; MEMBERSHIP. (a) The Texas State Board of Acupuncture Examiners consists of nine members appointed by the governor with the advice and consent of the senate as follows: (1) four acupuncturist members who have at least five years of experience in the practice of acupuncture in this state and who are not physicians; (2) two physician members experienced in the practice of acupuncture; and (3) three members of the general public who are not licensed or trained in a health care profession. (b) Appointments to the acupuncture board shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by:
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Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.02, eff. September 1, 2005.
Sec. 205.052. PUBLIC MEMBER ELIGIBILITY. A person is not eligible for appointment as a public member of the acupuncture board if the person or the person's spouse: (1) is registered, certified, or licensed by an occupational regulatory agency in the field of health care; (2) is employed by or participates in the management of a business entity or other organization regulated by the medical board or receiving funds from the medical board or acupuncture board; (3) owns or controls, directly or indirectly, more than a 10 percent interest in a business entity or other organization regulated by the medical board or acupuncture board or receiving funds from the medical board; (4) uses or receives a substantial amount of tangible goods, services, or funds from the medical board or acupuncture board, other than compensation or reimbursement authorized by law for acupuncture board membership, attendance, or expenses; or (5) owns, operates, or has a financial interest in a school of acupuncture.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.056(a), eff. Sept. 1, 2001.
Sec. 205.053. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. (b) An officer, board member, employee, or paid consultant of a Texas trade association in the field of health care may not be a member of the acupuncture board or an employee of the medical board who is exempt from the state's position classification plan or is compensated at or above the amount prescribed by the General
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Appropriations Act for step 1, salary group A17, of the position classification salary schedule. (c) A person may not be a member of the acupuncture board and may not be a medical board employee in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if: (1) the person is an officer, employee, or paid consultant of a Texas trade association in the field of health care; or (2) the person's spouse is an officer, manager, or paid consultant of a Texas trade association in the field of health care. (d) A person may not be a member of the acupuncture board or act as general counsel to the acupuncture board or the medical board if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the medical board or acupuncture board. (e) A person may not serve on the acupuncture board if the person owns, operates, or has a financial interest in a school of acupuncture.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.056(b), eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.03, eff. September 1, 2005.
Sec. 205.054. TERMS; VACANCIES. (a) Members of the acupuncture board serve staggered six-year terms. The terms of three members expire on January 31 of each odd-numbered year. (b) A vacancy on the acupuncture board shall be filled by appointment of the governor.
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Sec. 205.055. PRESIDING OFFICER. The governor shall designate an acupuncturist member of the acupuncture board as presiding officer. The presiding officer serves in that capacity at the will of the governor.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.04, eff. September 1, 2005.
Sec. 205.056. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the acupuncture board that a member: (1) does not have at the time of appointment the qualifications required by Sections 205.051 and 205.052; (2) does not maintain during service on the acupuncture board the qualifications required by Sections 205.051 and 205.052; (3) violates a prohibition established by Section 205.053; (4) cannot, because of illness or disability, discharge the member's duties for a substantial part of the member's term; or (5) is absent from more than half of the regularly scheduled acupuncture board meetings that the member is eligible to attend during a calendar year. (b) The validity of an action of the acupuncture board is not affected by the fact that it is taken when a ground for removal of an acupuncture board member exists. (c) If the executive director has knowledge that a potential ground for removal of an acupuncture board member exists, the executive director shall notify the presiding officer of the acupuncture board of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest officer of the acupuncture board, who shall notify the governor and the attorney general that a potential ground for removal exists.
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Sec. 205.057. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the acupuncture board may not vote, deliberate, or be counted as a member in attendance at a meeting of the acupuncture board until the person completes a training program that complies with this section. (b) The training program must provide the person with information regarding: (1) this chapter; (2) the programs operated by the acupuncture board; (3) the role and functions of the acupuncture board; (4) the rules of the acupuncture board; (5) the current budget for the acupuncture board; (6) the results of the most recent formal audit of the acupuncture board; (7) the requirements of laws relating to open meetings, public information, administrative procedure, and conflicts of interest; and (8) any applicable ethics policies adopted by the acupuncture board or the Texas Ethics Commission. (c) A person appointed to the acupuncture board is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.05, eff. September 1, 2005.
Sec. 205.058. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The executive director or the executive director's designee shall provide, as often as necessary, to members of the acupuncture board information regarding their: (1) qualifications for office under this chapter; and
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(2) responsibilities under applicable laws relating to standards of conduct for state officers.
Sec. 205.059. COMPENSATION; PER DIEM. An acupuncture board member may not receive compensation for service on the acupuncture board but is entitled to receive a per diem as set by legislative appropriation for transportation and related expenses incurred for each day that the member engages in the acupuncture board's business.
Sec. 205.060. APPLICATION OF OPEN MEETINGS, OPEN RECORDS, AND ADMINISTRATIVE PROCEDURE LAWS. Except as provided by this chapter, the acupuncture board is subject to Chapters 551, 552, and 2001, Government Code.
SUBCHAPTER C. POWERS AND DUTIES OF ACUPUNCTURE BOARD AND MEDICAL BOARD
Sec. 205.101. GENERAL POWERS AND DUTIES OF ACUPUNCTURE BOARD. (a) Subject to the advice and approval of the medical board, the acupuncture board shall: (1) establish qualifications for an acupuncturist to practice in this state; (2) establish minimum education and training requirements necessary for the acupuncture board to recommend that the medical board issue a license to practice acupuncture; (3) administer an examination that is validated by independent testing professionals for a license to practice acupuncture; (4) develop requirements for licensure by endorsement of other states;
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(5) prescribe the application form for a license to practice acupuncture; (6) recommend rules to establish licensing and other fees; (7) establish the requirements for a tutorial program for acupuncture students who have completed at least 48 semester hours of college; and (8) recommend additional rules as are necessary to administer and enforce this chapter. (b) The acupuncture board does not have independent rulemaking authority. A rule adopted by the acupuncture board is subject to medical board approval. (c) The acupuncture board shall: (1) review and approve or reject each application for the issuance or renewal of a license; (2) issue each license; and (3) deny, suspend, or revoke a license or otherwise discipline a license holder.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.06, eff. September 1, 2005.
Sec. 205.102. ASSISTANCE BY MEDICAL BOARD. (a) The medical board shall provide administrative and clerical employees as necessary to enable the acupuncture board to administer this chapter. (b) Subject to the advice and approval of the medical board, the acupuncture board shall develop and implement policies that clearly separate the policy-making responsibilities of the acupuncture board and the management responsibilities of the executive director and the staff of the medical board.
Sec. 205.103. FEES. The medical board shall set and collect fees in amounts that are reasonable and necessary to cover the costs
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of administering and enforcing this chapter without the use of any other funds generated by the medical board.
Sec. 205.104. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The medical board may not adopt rules under this chapter restricting advertising or competitive bidding by a license holder except to prohibit false, misleading, or deceptive practices. (b) In its rules to prohibit false, misleading, or deceptive practices, the medical board may not include a rule that: (1) restricts the use of any medium for advertising; (2) restricts the use of a license holder's personal appearance or voice in an advertisement; (3) relates to the size or duration of an advertisement by the license holder; or (4) restricts the license holder's advertisement under a trade name.
Sec. 205.1041. GUIDELINES FOR EARLY INVOLVEMENT IN RULEMAKING PROCESS. (a) The acupuncture board shall develop guidelines to establish procedures for receiving input during the rulemaking process from individuals and groups that have an interest in matters under the acupuncture board's jurisdiction. The guidelines must provide an opportunity for those individuals and groups to provide input before the acupuncture board submits the rule to the medical board for approval. (b) A rule adopted by the acupuncture board may not be challenged on the grounds that the board did not comply with this section. If the acupuncture board was unable to solicit a significant amount of input from the public or affected persons early in the rulemaking process, the board shall state in writing the reasons why the board was unable to do so.
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Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.07, eff. September 1, 2005.
Sec. 205.1045. RULES ON CONSEQUENCES OF CRIMINAL CONVICTION. The acupuncture board shall adopt rules and guidelines as necessary to comply with Chapter 53, except to the extent the requirements of this chapter are stricter than the requirements of Chapter 53.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.08, eff. September 1, 2005.
Sec. 205.106. USE OF TECHNOLOGY. Subject to the advice and approval of the medical board, the acupuncture board shall implement a policy requiring the acupuncture board to use appropriate technological solutions to improve the acupuncture board's ability to perform its functions. The policy must ensure that the public is able to interact with the acupuncture board on the Internet.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.09, eff. September 1, 2005.
Sec. 205.107. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION POLICY. (a) Subject to the advice and approval of the medical board, the acupuncture board shall develop and implement a policy to encourage the use of: (1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of acupuncture board rules; and (2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the acupuncture board's jurisdiction. (b) The acupuncture board procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. (c) The acupuncture board shall designate a trained person to:
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(1) coordinate the implementation of the policy adopted under Subsection (a); (2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and (3) collect data concerning the effectiveness of those procedures, as implemented by the acupuncture board.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.10, eff. September 1, 2005.
SUBCHAPTER D. PUBLIC ACCESS AND INFORMATION AND COMPLAINT PROCEDURES
Sec. 205.151. PUBLIC INTEREST INFORMATION. (a) The acupuncture board shall prepare information of public interest describing the functions of the acupuncture board and the procedures by which complaints are filed with and resolved by the acupuncture board. (b) The acupuncture board shall make the information available to the public and appropriate state agencies.
Sec. 205.152. COMPLAINTS. (a) The acupuncture board by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the acupuncture board for the purpose of directing a complaint to the acupuncture board. The acupuncture board may provide for that notification: (1) on each registration form, application, or written contract for services of a person regulated under this chapter; (2) on a sign prominently displayed in the place of business of each person regulated under this chapter; or (3) in a bill for service provided by a person regulated under this chapter.
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(b) The acupuncture board shall keep information about each complaint filed with the acupuncture board. The information shall include: (1) the date the complaint is received; (2) the name of the complainant; (3) the subject matter of the complaint; (4) a record of all persons contacted in relation to the complaint; (5) a summary of the results of the review or investigation of the complaint; and (6) for a complaint for which the acupuncture board took no action, an explanation of the reason the complaint was closed without action. (c) The acupuncture board shall keep a file about each written complaint filed with the acupuncture board that the acupuncture board has authority to resolve. The acupuncture board shall provide to the person filing the complaint and each person who is the subject of the complaint the acupuncture board's policies and procedures pertaining to complaint investigation and resolution. (d) The acupuncture board, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person who is the subject of the complaint of the status of the complaint unless the notice would jeopardize an investigation.
Sec. 205.1521. CONDUCT OF INVESTIGATION. The acupuncture board shall complete a preliminary investigation of a complaint received by the acupuncture board not later than the 30th day after the date of receiving the complaint. The acupuncture board shall first determine whether the acupuncturist constitutes a continuing threat to the public welfare. On completion of the preliminary investigation, the acupuncture board shall determine whether to officially proceed on the complaint. If the acupuncture board fails to complete the preliminary investigation in the time required by this section, the acupuncture board's official investigation of the complaint is considered to commence on that date.
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Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.11, eff. September 1, 2005.
Sec. 205.153. PUBLIC PARTICIPATION. (a) Subject to the advice and approval of the medical board, the acupuncture board shall develop and implement policies that provide the public with a reasonable opportunity to appear before the acupuncture board and to speak on any issue under the acupuncture board's jurisdiction. (b) The executive director shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the acupuncture board's programs and services.
SUBCHAPTER E. LICENSE REQUIREMENTS
Sec. 205.201. LICENSE REQUIRED. Except as provided by Section 205.303, a person may not practice acupuncture in this state unless the person holds a license to practice acupuncture issued by the acupuncture board under this chapter.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.12, eff. September 1, 2005.
Sec. 205.202. ISSUANCE OF LICENSE. (a) The acupuncture board shall issue a license to practice acupuncture in this state to a person who meets the requirements of this chapter and the rules adopted under this chapter. (b) The acupuncture board may delegate authority to medical board employees to issue licenses under this chapter to applicants who clearly meet all licensing requirements. If the medical board employees determine that the applicant does not clearly meet all licensing requirements, the application shall be returned to the
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acupuncture board. A license issued under this subsection does not require formal acupuncture board approval.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.13, eff. September 1, 2005.
Sec. 205.203. LICENSE EXAMINATION. (a) An applicant for a license to practice acupuncture must pass an acupuncture examination and a jurisprudence examination approved by the acupuncture board as provided by this section. (b) To be eligible for the examination, an applicant must: (1) be at least 21 years of age; (2) have completed at least 60 semester hours of college courses, including basic science courses as determined by the acupuncture board; and (3) be a graduate of an acupuncture school with entrance requirements and a course of instruction that meet standards set under Section 205.206. (c) The acupuncture examination shall be conducted on practical and theoretical acupuncture and other subjects required by the acupuncture board. (c-1) The jurisprudence examination shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the professional practice of acupuncture in this state. (d) The examination may be in writing, by a practical demonstration of the applicant's skill, or both, as required by the acupuncture board. (e) The medical board shall notify each applicant of the time and place of the examination. (f) The acupuncture board shall adopt rules for the jurisprudence examination under Subsection (c-1) regarding: (1) the development of the examination; (2) applicable fees; (3) administration of the examination; (4) reexamination procedures; (5) grading procedures; and
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(6) notice of results.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.057(a), eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.14, eff. September 1, 2005.
Sec. 205.204. APPLICATION FOR EXAMINATION. An application for examination must be: (1) in writing on a form prescribed by the acupuncture board; (2) verified by affidavit; (3) filed with the executive director; and (4) accompanied by a fee in an amount set by the medical board.
Sec. 205.2045. APPEARANCE OF APPLICANT BEFORE ACUPUNCTURE BOARD. An applicant for a license to practice acupuncture may not be required to appear before the acupuncture board or a committee of the acupuncture board unless the application raises questions concerning: (1) a physical or mental impairment of the applicant; (2) a criminal conviction of the applicant; or (3) revocation of a professional license held by the applicant.
Added by Acts 2001, 77th Leg., ch. 1420, Sec. 14.057(b), eff. Sept. 1, 2001.
Sec. 205.205. EXAMINATION RESULTS. (a) Not later than the 30th day after the date a licensing examination is administered under this chapter, the acupuncture board shall notify each examinee of the results of the examination. If an examination is graded or reviewed by a national testing service, the acupuncture board shall notify
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examinees of the results of the examination not later than the 14th day after the date the acupuncture board receives the results from the testing service. (b) If the notice of examination results graded or reviewed by a national testing service will be delayed for longer than 90 days after the examination date, the acupuncture board shall notify the examinee of the reason for the delay before the 90th day. The acupuncture board may require a testing service to notify examinees of the results of an examination. (c) If requested in writing by a person who fails a licensing examination administered under this chapter, the acupuncture board shall furnish the person with an analysis of the person's performance on the examination if an analysis is available from the national testing service.
Sec. 205.206. ACUPUNCTURE SCHOOLS. (a) A reputable acupuncture school, in addition to meeting standards set by the acupuncture board, must: (1) maintain a resident course of instruction equivalent to not less than six terms of four months each for a total of not less than 1,800 instructional hours; (2) provide supervised patient treatment for at least two terms of the resident course of instruction; (3) maintain a course of instruction in anatomy-histology, bacteriology, physiology, symptomatology, pathology, meridian and point locations, hygiene, and public health; and (4) have the necessary teaching force and facilities for proper instruction in required subjects. (b) In establishing standards for the entrance requirements and course of instruction of an acupuncture school, the acupuncture board may consider the standards set by the National Accreditation Commission for Schools and Colleges of Acupuncture and Oriental Medicine. (c) In addition to the other requirements of this section, an acupuncture school or degree program is subject to approval by the Texas Higher Education Coordinating Board unless the school or
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program qualifies for an exemption under Section 61.303, Education Code. (d) In reviewing an acupuncture school or degree program as required by Subsection (c), the Texas Higher Education Coordinating Board shall seek input from the acupuncture board regarding the standards to be used for assessing whether a school or degree program adequately prepares an individual for the practice of acupuncture.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.15, eff. September 1, 2005.
Sec. 205.207. RECIPROCAL LICENSE. The medical board may waive any license requirement for an applicant after reviewing the applicant's credentials and determining that the applicant holds a license from another state that has license requirements substantially equivalent to those of this state.
Sec. 205.208. TEMPORARY LICENSE. (a) The acupuncture board may, through the executive director, issue a temporary license to practice acupuncture to an applicant who: (1) submits an application on a form prescribed by the acupuncture board; (2) has passed a national or other examination recognized by the acupuncture board relating to the practice of acupuncture; (3) pays the appropriate fee; (4) if licensed in another state, is in good standing as an acupuncturist; and (5) meets all the qualifications for a license under this chapter but is waiting for the next scheduled meeting of the medical board for the license to be issued. (b) A temporary license is valid for 100 days after the date issued and may be extended only for another 30 days after the date the initial temporary license expires.
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SUBCHAPTER F. LICENSE RENEWAL
Sec. 205.251. ANNUAL RENEWAL REQUIRED. (a) The medical board by rule shall provide for the annual renewal of a license to practice acupuncture. (b) The medical board by rule may adopt a system under which licenses expire on various dates during the year. For the year in which the license expiration date is changed, license fees shall be prorated on a monthly basis so that each license holder pays only that portion of the license fee that is allocable to the number of months during which the license is valid. On renewal of the license on the new expiration date, the total license renewal fee is payable.
Sec. 205.252. NOTICE OF LICENSE EXPIRATION. Not later than the 30th day before the expiration date of a person's license, the medical board shall send written notice of the impending license expiration to the person at the person's last known address according to the records of the medical board.
Sec. 205.253. PROCEDURE FOR RENEWAL. (a) A person who is otherwise eligible to renew a license may renew an unexpired license by paying the required renewal fee to the medical board before the expiration date of the license. A person whose license has expired may not engage in activities that require a license until the license has been renewed under this section or Section 205.254. (b) If the person's license has been expired for 90 days or less, the person may renew the license by paying to the medical board a fee in an amount equal to one and one-half times the required renewal fee.
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(c) If the person's license has been expired for longer than 90 days but less than one year, the person may renew the license by paying to the medical board a fee in an amount equal to two times the required renewal fee. (d) If the person's license has been expired for one year or longer, the person may not renew the license. The person may obtain a new license by submitting to reexamination and complying with the requirements and procedures for obtaining an original license.
Sec. 205.254. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE PRACTITIONER. (a) The medical board may renew without reexamination the license of a person who was licensed to practice acupuncture in this state, moved to another state, and is currently licensed and has been in practice in the other state for the two years preceding application. (b) The person must pay to the medical board a fee in an amount equal to two times the required renewal fee for the license.
Sec. 205.255. CONTINUING EDUCATION. (a) The acupuncture board by rule may require a license holder to complete a certain number of hours of continuing education courses approved by the acupuncture board to renew a license. (a-1) The acupuncture board shall establish written guidelines for granting continuing education credit that specify: (1) procedural requirements; (2) the qualifications needed to be considered a preferred provider of continuing education; and (3) course content requirements. (b) The acupuncture board shall consider the approval of a course conducted by: (1) a knowledgeable health care provider; or (2) a reputable school, state, or professional organization.
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(c) After guidelines are established under Subsection (a-1), the acupuncture board shall delegate to medical board employees the authority to approve course applications for courses that clearly meet the guidelines. Medical board employees shall refer any courses that are not clearly within the guidelines to the acupuncture board for review and approval.
Added by Acts 2001, 77th Leg., ch. 1420, Sec. 14.058(a), eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.16, eff. September 1, 2005.
SUBCHAPTER G. PRACTICE BY LICENSE HOLDER
Sec. 205.301. REFERRAL BY OTHER HEALTH CARE PRACTITIONER REQUIRED. (a) A license holder may perform acupuncture on a person only if the person was: (1) evaluated by a physician or dentist, as appropriate, for the condition being treated within six months before the date acupuncture is performed; or (2) referred by a chiropractor within 30 days before the date acupuncture is performed. (b) A license holder acting under Subsection (a)(1) must obtain reasonable documentation that the required evaluation has taken place. If the license holder is unable to determine that an evaluation has taken place, the license holder must obtain a written statement signed by the person on a form prescribed by the acupuncture board that states the person has been evaluated by a physician or dentist within the prescribed time. The form must contain a clear statement that the person should be evaluated by a physician or dentist for the condition being treated by the license holder. (c) A license holder acting under Subsection (a)(2) shall refer the person to a physician after performing acupuncture 20 times or for 30 days, whichever occurs first, if substantial improvement does not occur in the person's condition for which the referral was made.
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(d) The medical board, with advice from the acupuncture board, by rule may modify: (1) the scope of the evaluation under Subsection (a)(1); (2) the period during which treatment must begin under Subsection (a)(1) or (2); or (3) the number of treatments or days before referral to a physician is required under Subsection (c).
Sec. 205.302. AUTHORIZED PRACTICE WITHOUT REFERRAL. (a) After notice and public hearing, the medical board shall determine by rule whether an acupuncturist may treat a patient for alcoholism or chronic pain without a referral from a physician, dentist, or chiropractor. The medical board shall make the determination based on clinical evidence and what the medical board determines to be in the best interest of affected patients. (b) Notwithstanding Section 205.301, a license holder may, without a referral from a physician, dentist, or chiropractor, perform acupuncture on a person for: (1) smoking addiction; (2) weight loss; or (3) substance abuse, to the extent permitted by medical board rule adopted with advice from the acupuncture board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 719, Sec. 2, eff. Sept. 1, 2001.
Sec. 205.303. ACUDETOX SPECIALIST. (a) The medical board may certify a person as an acudetox specialist under this section if the person: (1) provides to the medical board documentation that the person: (A) is a licensed social worker, licensed professional counselor, licensed psychologist, licensed chemical dependency counselor, licensed vocational nurse, or licensed registered nurse; and
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(B) has successfully completed a training program in acupuncture detoxification that meets guidelines approved by the medical board; and (2) pays a certification fee in an amount set by the medical board. (b) An acudetox specialist may practice acupuncture only: (1) to the extent allowed by rules adopted by the medical board for the treatment of alcoholism, substance abuse, or chemical dependency; and (2) under the supervision of a licensed acupuncturist or physician. (c) A program that includes the services of an acudetox specialist shall: (1) notify each participant in the program of the qualifications of the acudetox specialist and of the procedure for registering a complaint regarding the acudetox specialist with the medical board; and (2) keep a record of each client's name, the date the client received the acudetox specialist's services, and the name, signature, and certification number of the acudetox specialist. (d) The medical board may annually renew the certification of an acudetox specialist under this section if the person: (1) provides to the medical board documentation that: (A) the certification or license required under Subsection (a)(1)(A) is in effect; and (B) the person has successfully met continuing education requirements established by the medical board under Subsection (e); and (2) pays a certification renewal fee in an amount set by the medical board. (e) The medical board shall establish continuing education requirements for an acudetox specialist that, at a minimum, include six hours of education in the practice of acupuncture and a course in either clean needle technique or universal infection control precaution procedures.
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Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.059(a), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 892, Sec. 33, eff. Sept. 1, 2003.
Sec. 205.304. PROFESSIONAL REVIEW ACTION. Sections 160.002, 160.003, 160.006, 160.007(d), 160.013, 160.014, and 160.015 apply to professional review actions relating to the practice of acupuncture by an acupuncturist or acupuncturist student.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.060, eff. Sept. 1, 2001.
Sec. 205.305. LICENSE HOLDER INFORMATION. (a) Each license holder shall file with the acupuncture board: (1) the license holder's mailing address; (2) the address of the license holder's residence; (3) the mailing address of each office of the license holder; and (4) the address for the location of each office of the license holder that has an address different from the office's mailing address. (b) A license holder shall: (1) notify the acupuncture board of a change of the license holder's residence or business address; and (2) provide the acupuncture board with the license holder's new address not later than the 30th day after the date the address change occurs.
SUBCHAPTER H. DISCIPLINARY PROCEDURES
Sec. 205.351. GROUNDS FOR LICENSE DENIAL OR DISCIPLINARY ACTION. (a) A license to practice acupuncture may be denied or, after notice and hearing, a license holder may be subject to disciplinary action under Section 205.352 if the license applicant or license holder:
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(1) intemperately uses drugs or intoxicating liquors to an extent that, in the opinion of the board, could endanger the lives of patients; (2) obtains or attempts to obtain a license by fraud or deception; (3) has been adjudged mentally incompetent by a court; (4) has a mental or physical condition that renders the person unable to perform safely as an acupuncturist; (5) fails to practice acupuncture in an acceptable manner consistent with public health and welfare; (6) violates this chapter or a rule adopted under this chapter; (7) has been convicted of a crime involving moral turpitude or a felony or is the subject of deferred adjudication or pretrial diversion for such an offense; (8) holds the person out as a physician or surgeon or any combination or derivative of those terms unless the person is also licensed by the medical board as a physician or surgeon; (9) fraudulently or deceptively uses a license; (10) engages in unprofessional or dishonorable conduct that is likely to deceive, defraud, or injure a member of the public; (11) commits an act in violation of state law if the act is connected with the person's practice as an acupuncturist; (12) fails to adequately supervise the activities of a person acting under the supervision of the license holder; (13) directly or indirectly aids or abets the practice of acupuncture by any person not licensed to practice acupuncture by the acupuncture board; (14) is unable to practice acupuncture with reasonable skill and with safety to patients because of illness, drunkenness, or excessive use of drugs, narcotics, chemicals, or any other type of material or because of any mental or physical condition; (15) is the subject of repeated or recurring meritorious health-care liability claims that in the opinion of the acupuncture board evidence professional incompetence likely to injure the public; (16) has had a license to practice acupuncture suspended, revoked, or restricted by another state or has been subject to other
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disciplinary action by another state or by the uniformed services of the United States regarding practice as an acupuncturist; or (17) sexually abuses or exploits another person through the license holder's practice as an acupuncturist. (b) If the acupuncture board proposes to suspend, revoke, or refuse to renew a person's license, the person is entitled to a hearing conducted by the State Office of Administrative Hearings. (c) A complaint, indictment, or conviction of a violation of law is not necessary for an action under Subsection (a)(11). Proof of the commission of the act while in the practice of acupuncture or under the guise of the practice of acupuncture is sufficient for action by the acupuncture board. (d) A certified copy of the record of the state or uniformed services of the United States taking an action is conclusive evidence of the action for purposes of Subsection (a)(16).
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.17, eff. September 1, 2005.
Sec. 205.352. DISCIPLINARY POWERS OF ACUPUNCTURE BOARD. (a) On finding that grounds exist to deny a license or take disciplinary action against a license holder, the acupuncture board by order may: (1) deny the person's application for a license, license renewal, or certificate to practice acupuncture or revoke the person's license or certificate to practice acupuncture; (2) require the person to submit to the care, counseling, or treatment of a health care practitioner designated by the acupuncture board as a condition for the issuance, continuance, or renewal of a license or certificate to practice acupuncture; (3) require the person to participate in a program of education or counseling prescribed by the acupuncture board; (4) suspend, limit, or restrict the person's license or certificate to practice acupuncture, including limiting the practice of the person to, or excluding from the practice, one or more specified activities of acupuncture or stipulating periodic review by the acupuncture board;
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(5) require the person to practice under the direction of an acupuncturist designated by the acupuncture board for a specified period of time; (6) assess an administrative penalty against the person as provided by Subchapter J; (7) require the person to perform public service considered appropriate by the acupuncture board; (8) stay enforcement of an order and place the person on probation with the acupuncture board retaining the right to vacate the probationary stay and enforce the original order for noncompliance with the terms of probation or impose any other remedial measure or sanction authorized by this section; (9) require the person to continue or review professional education until the person attains a degree of skill satisfactory to the acupuncture board in those areas that are the basis of the probation under Subdivision (8); (10) require the person to report regularly to the acupuncture board on matters that are the basis of the probation under Subdivision (8); or (11) administer a public reprimand. (b) The acupuncture board may reinstate or reissue a license or remove any disciplinary or corrective measure that the acupuncture board has imposed under this section.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.18, eff. September 1, 2005.
Sec. 205.3522. SURRENDER OF LICENSE. (a) The acupuncture board may accept the voluntary surrender of a license. (b) A surrendered license may not be returned to the license holder unless the acupuncture board determines, under acupuncture board rules, that the former holder of the license is competent to resume practice. (c) The acupuncture board shall recommend rules to the medical board for determining the competency of a former license holder to return to practice.
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Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.19, eff. September 1, 2005.
Sec. 205.3523. PHYSICAL OR MENTAL EXAMINATION. (a) The acupuncture board shall adopt guidelines, in conjunction with persons interested in or affected by this section, to enable the board to evaluate circumstances in which an acupuncturist or applicant may be required to submit to an examination for mental or physical health conditions, alcohol and substance abuse, or professional behavior problems. (b) The acupuncture board shall refer an acupuncturist or applicant with a physical or mental health condition to the most appropriate medical specialist. The acupuncture board may not require an acupuncturist or applicant to submit to an examination by a physician having a specialty specified by the board unless medically indicated. The acupuncture board may not require an acupuncturist or applicant to submit to an examination to be conducted an unreasonable distance from the person's home or place of business unless the acupuncturist or applicant resides and works in an area in which there are a limited number of physicians able to perform an appropriate examination. (c) The guidelines adopted under this section do not impair or remove the acupuncture board's power to make an independent licensing decision.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.20, eff. September 1, 2005.
Sec. 205.354. RULES FOR DISCIPLINARY PROCEEDINGS. Rules of practice adopted by the medical board under Section 2001.004, Government Code, applicable to the proceedings for a disciplinary action may not conflict with rules adopted by the State Office of Administrative Hearings.
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Sec. 205.3541. INFORMAL PROCEEDINGS. (a) The acupuncture board by rule shall adopt procedures governing: (1) informal disposition of a contested case under Section 2001.056, Government Code; and (2) informal proceedings held in compliance with Section 2001.054, Government Code. (b) Rules adopted under this section must require that: (1) an informal meeting in compliance with Section 2001.054, Government Code, be scheduled not later than the 180th day after the date the complaint is filed with the acupuncture board, unless good cause is shown by the acupuncture board for scheduling the informal meeting after that date; (2) the acupuncture board give notice to the license holder of the time and place of the meeting not later than the 30th day before the date the meeting is held; (3) the complainant and the license holder be provided an opportunity to be heard; (4) at least one of the acupuncture board members participating in the informal meeting as a panelist be a member who represents the public; (5) the acupuncture board's legal counsel or a representative of the attorney general be present to advise the acupuncture board or the medical board's staff; and (6) an employee of the medical board be at the meeting to present to the acupuncture board's representative the facts the medical board staff reasonably believes it could prove by competent evidence or qualified witnesses at a hearing. (c) An affected acupuncturist is entitled, orally or in writing, to: (1) reply to the staff's presentation; and (2) present the facts the acupuncturist reasonably believes the acupuncturist could prove by competent evidence or qualified witnesses at a hearing. (d) After ample time is given for the presentations, the acupuncture board panel shall recommend that the investigation be closed or shall attempt to mediate the disputed matters and make a recommendation regarding the disposition of the case in the absence of a hearing under applicable law concerning contested cases.
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(e) If the license holder has previously been the subject of disciplinary action by the acupuncture board, the acupuncture board shall schedule the informal meeting as soon as practicable but not later than the deadline prescribed by Subsection (b)(1).
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.21, eff. September 1, 2005.
Sec. 205.3542. ACUPUNCTURE BOARD REPRESENTATION IN INFORMAL PROCEEDINGS. (a) In an informal proceeding under Section 205.3541, at least two panelists shall be appointed to determine whether an informal disposition is appropriate. (b) Notwithstanding Subsection (a) and Section 205.3541(b)(4), an informal proceeding may be conducted by one panelist if the affected acupuncturist waives the requirement that at least two panelists conduct the informal proceeding. If the acupuncturist waives that requirement, the panelist may be any member of the acupuncture board. (c) The panel requirements described by Subsection (a) apply to an informal proceeding conducted by the acupuncture board under Section 205.3541, including a proceeding to: (1) consider a disciplinary case to determine if a violation has occurred; or (2) request modification or termination of an order. (d) The panel requirements described by Subsection (a) do not apply to an informal proceeding conducted by the acupuncture board under Section 205.3541 to show compliance with an order of the acupuncture board.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.22, eff. September 1, 2005.
Sec. 205.3543. ROLES AND RESPONSIBILITIES OF PARTICIPANTS IN INFORMAL PROCEEDINGS. (a) An acupuncture board member that serves as a panelist at an informal meeting under Section 205.3541 shall make recommendations for the disposition of a complaint or
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allegation. The member may request the assistance of a medical board employee at any time. (b) Medical board employees shall present a summary of the allegations against the affected acupuncturist and of the facts pertaining to the allegation that the employees reasonably believe may be proven by competent evidence at a formal hearing. (c) An acupuncture board or medical board attorney shall act as counsel to the panel and, notwithstanding Subsection (e), shall be present during the informal meeting and the panel's deliberations to advise the panel on legal issues that arise during the proceeding. The attorney may ask questions of participants in the informal meeting to clarify any statement made by the participant. The attorney shall provide to the panel a historical perspective on comparable cases that have appeared before the acupuncture board or medical board, keep the proceedings focused on the case being discussed, and ensure that the medical board's employees and the affected acupuncturist have an opportunity to present information related to the case. During the panel's deliberation, the attorney may be present only to advise the panel on legal issues and to provide information on comparable cases that have appeared before the acupuncture board or medical board. (d) The panel and medical board employees shall provide an opportunity for the affected acupuncturist and the acupuncturist's authorized representative to reply to the board employees' presentation and to present oral and written statements and facts that the acupuncturist and representative reasonably believe could be proven by competent evidence at a formal hearing. (e) An employee of the medical board who participated in the presentation of the allegation or information gathered in the investigation of the complaint, the affected acupuncturist, the acupuncturist's authorized representative, the complainant, the witnesses, and members of the public may not be present during the deliberations of the panel. Only the members of the panel and the attorney serving as counsel to the panel may be present during the deliberations. (f) The panel shall recommend the dismissal of the complaint or allegations or, if the panel determines that the affected acupuncturist has violated a statute or acupuncture board rule, the
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panel may recommend board action and terms for an informal settlement of the case. (g) The panel's recommendations under Subsection (f) must be made in a written order and presented to the affected acupuncturist and the acupuncturist's authorized representative. The acupuncturist may accept the proposed settlement within the time established by the panel at the informal meeting. If the acupuncturist rejects the proposed settlement or does not act within the required time, the acupuncture board may proceed with the filing of a formal complaint with the State Office of Administrative Hearings.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.23, eff. September 1, 2005.
Sec. 205.3544. LIMIT ON ACCESS TO INVESTIGATION FILES. The acupuncture board shall prohibit or limit access to an investigation file relating to a license holder in an informal proceeding in the manner provided by Section 164.007(c).
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.24, eff. September 1, 2005.
Sec. 205.355. REQUIRED DISCIPLINARY ACTION FOR FAILURE TO OBTAIN REFERRAL. Except as provided by Section 205.301(a)(2), a license to practice acupuncture shall be denied or, after notice and hearing, revoked if the applicant or license holder violates Section 205.301(a)(1).
Sec. 205.356. REHABILITATION ORDER. (a) The acupuncture board, through an agreed order or after a contested proceeding, may impose a nondisciplinary rehabilitation order on an applicant, as a prerequisite for issuing a license, or on a license holder based on: (1) the person's intemperate use of drugs or alcohol directly resulting from habituation or addiction caused by medical care or treatment provided by a physician;
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(2) the person's intemperate use of drugs or alcohol during the five years preceding the date of the report that could adversely affect the person's ability to safely practice as an acupuncturist, if the person: (A) reported the use; (B) has not previously been the subject of a substance abuse related order of the acupuncture board; and (C) did not violate the standard of care as a result of the impairment; (3) a judgment by a court that the person is of unsound mind; or (4) the results of a mental or physical examination, or an admission by the person, indicating that the person suffers from a potentially dangerous limitation or an inability to practice as an acupuncturist with reasonable skill and safety by reason of illness or as a result of any physical or mental condition. (b) The acupuncture board may not issue an order under this section if, before the individual signs the proposed order, the board receives a valid complaint with regard to the individual based on the individual's intemperate use of drugs or alcohol in a manner affecting the standard of care. (c) The acupuncture board must determine whether an individual has committed a standard of care violation described by Subsection (a)(2) before imposing an order under this section. (d) The acupuncture board may disclose a rehabilitation order to a local or statewide private acupuncture association only as provided by Section 205.3562.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.25, eff. September 1, 2005.
Sec. 205.3561. EXPERT IMMUNITY. An expert who assists the acupuncture board is immune from suit and judgment and may not be subjected to a suit for damages for any investigation, report, recommendation, statement, evaluation, finding, or other action taken without fraud or malice in the course of assisting the board in a
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disciplinary proceeding. The attorney general shall represent the expert in any suit resulting from a service provided by the expert in good faith to the acupuncture board.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.26, eff. September 1, 2005.
Sec. 205.3562. RESPONSIBILITIES OF PRIVATE ASSOCIATIONS. (a) If a rehabilitation order imposed under Section 205.356 requires a license holder to participate in activities or programs provided by a local or statewide private acupuncture association, the acupuncture board shall inform the association of the license holder's duties under the order. The information provided under this section must include specific guidance to enable the association to comply with any requirements necessary to assist in the acupuncturist's rehabilitation. (b) The acupuncture board may provide to the association any information that the board determines to be necessary, including a copy of the rehabilitation order. Any information received by the association remains confidential, is not subject to discovery, subpoena, or other means of legal compulsion, and may be disclosed only to the acupuncture board.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.26, eff. September 1, 2005.
Sec. 205.357. EFFECT OF REHABILITATION ORDER. (a) A rehabilitation order imposed under Section 205.356 is a nondisciplinary private order. If entered by agreement, the order is an agreed disposition or settlement agreement for purposes of civil litigation and is exempt from the open records law. (b) A rehabilitation order imposed under Section 205.356 must contain findings of fact and conclusions of law. The order may impose a revocation, cancellation, suspension, period of probation or restriction, or any other term authorized by this chapter or agreed to by the acupuncture board and the person subject to the order.
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(c) A violation of a rehabilitation order may result in disciplinary action under the provisions of this chapter for contested matters or the terms of the agreed order. (d) A violation of a rehabilitation order is grounds for disciplinary action based on: (1) unprofessional or dishonorable conduct; or (2) any provision of this chapter that applies to the conduct resulting in the violation.
Sec. 205.358. AUDIT OF REHABILITATION ORDER. (a) The acupuncture board shall keep rehabilitation orders imposed under Section 205.356 in a confidential file. The file is subject to an independent audit to ensure that only qualified license holders are subject to rehabilitation orders. The audit shall be conducted by a state auditor or private auditor with whom the acupuncture board contracts to perform the audit. (b) An audit may be performed at any time at the direction of the acupuncture board. The acupuncture board shall ensure that an audit is performed at least once in each three-year period. (c) The audit results are a matter of public record and shall be reported in a manner that maintains the confidentiality of each license holder who is subject to a rehabilitation order.
Sec. 205.359. SUBPOENA. (a) On behalf of the acupuncture board, the executive director of the medical board or the presiding officer of the acupuncture board may issue a subpoena or subpoena duces tecum: (1) for purposes of an investigation or contested proceeding related to: (A) alleged misconduct by an acupuncturist; or (B) an alleged violation of this chapter or other law related to practice as an acupuncturist or to the provision of health care under the authority of this chapter; and
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(2) to determine whether to: (A) issue, suspend, restrict, revoke, or cancel a license authorized by this chapter; or (B) deny or grant an application for a license under this chapter. (b) Failure to timely comply with a subpoena issued under this section is a ground for: (1) disciplinary action by the acupuncture board or any other licensing or regulatory agency with jurisdiction over the individual or entity subject to the subpoena; and (2) denial of a license application.
Sec. 205.360. DELEGATION OF CERTAIN COMPLAINT DISPOSITIONS. (a) The acupuncture board may delegate to a committee of medical board employees the authority to dismiss or enter into an agreed settlement of a complaint that does not relate directly to patient care or that involves only administrative violations. The disposition determined by the committee must be approved by the acupuncture board at a public meeting. (b) A complaint delegated under this section shall be referred for informal proceedings under Section 205.3541 if: (1) the committee of employees determines that the complaint should not be dismissed or settled; (2) the committee is unable to reach an agreed settlement; or (3) the affected acupuncturist requests that the complaint be referred for informal proceedings.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.27, eff. September 1, 2005.
Sec. 205.361. TEMPORARY SUSPENSION. (a) The presiding officer of the acupuncture board, with that board's approval, shall appoint a three-member disciplinary panel consisting of acupuncture board
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members to determine whether a person's license to practice as an acupuncturist should be temporarily suspended. (b) If the disciplinary panel determines from the information presented to the panel that a person licensed to practice as an acupuncturist would, by the person's continuation in practice, constitute a continuing threat to the public welfare, the disciplinary panel shall temporarily suspend the license of that person. (c) A license may be suspended under this section without notice or hearing on the complaint if: (1) institution of proceedings for a hearing before the acupuncture board is initiated simultaneously with the temporary suspension; and (2) a hearing is held under Chapter 2001, Government Code, and this chapter as soon as possible. (d) Notwithstanding Chapter 551, Government Code, the disciplinary panel may hold a meeting by telephone conference call if immediate action is required and convening of the panel at one location is inconvenient for any member of the disciplinary panel.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.28, eff. September 1, 2005.
Sec. 205.362. CEASE AND DESIST ORDER. (a) If it appears to the acupuncture board that a person who is not licensed under this chapter is violating this chapter, a rule adopted under this chapter, or another state statute or rule relating to the practice of acupuncture, the board, after notice and opportunity for a hearing, may issue a cease and desist order prohibiting the person from engaging in the activity. (b) A violation of an order under this section constitutes grounds for imposing an administrative penalty under Section 205.352.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.29, eff. September 1, 2005.
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Sec. 205.363. REFUND. (a) Subject to Subsection (b), the acupuncture board may order a license holder to pay a refund to a consumer as provided in an agreement resulting from an informal settlement conference instead of or in addition to imposing an administrative penalty under this subchapter. (b) The amount of a refund ordered under Subsection (a) may not exceed the amount the consumer paid to the license holder for a service regulated by this chapter. The acupuncture board may not require payment of other damages or estimate harm in a refund order.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.30, eff. September 1, 2005.
Sec. 205.364. MODIFICATION OF FINDINGS OR RULINGS BY ADMINISTRATIVE LAW JUDGE. The acupuncture board may change a finding of fact or conclusion of law or vacate or modify an order of an administrative law judge only if the acupuncture board makes a determination required by Section 2001.058(e), Government Code.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.31, eff. September 1, 2005.
SUBCHAPTER I. CRIMINAL PENALTIES AND OTHER ENFORCEMENT PROVISIONS
Sec. 205.401. CRIMINAL PENALTY. (a) Except as provided by Section 205.303, a person commits an offense if the person practices acupuncture in this state without a license issued under this chapter. (b) Each day a person practices acupuncture in violation of Subsection (a) constitutes a separate offense. (c) An offense under Subsection (a) is a felony of the third degree.
Sec. 205.402. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The acupuncture board, the attorney general, or a district or county
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attorney may bring a civil action to compel compliance with this chapter or to enforce a rule adopted under this chapter. (b) In addition to injunctive relief or any other remedy provided by law, a person who violates this chapter or a rule adopted under this chapter is liable to the state for a civil penalty in an amount not to exceed $2,000 for each violation. (c) Each day a violation continues or occurs is a separate violation for purposes of imposing a civil penalty. (d) The attorney general, at the request of the acupuncture board or on the attorney general's own initiative, may bring a civil action to collect a civil penalty.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.32, eff. September 1, 2005.
SUBCHAPTER J. ADMINISTRATIVE PENALTIES
Sec. 205.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The acupuncture board by order may impose an administrative penalty against a person licensed or regulated under this chapter who violates this chapter or a rule or order adopted under this chapter.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff. September 1, 2005.
Sec. 205.452. PROCEDURE. (a) The acupuncture board by rule shall prescribe the procedure by which it may impose an administrative penalty. (b) A proceeding under this subchapter is subject to Chapter 2001, Government Code.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff. September 1, 2005.
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Sec. 205.453. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $5,000 for each violation. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. (b) The amount of the penalty shall be based on: (1) the seriousness of the violation, including: (A) the nature, circumstances, extent, and gravity of any prohibited act; and (B) the hazard or potential hazard created to the health, safety, or economic welfare of the public; (2) the economic harm to property or the environment caused by the violation; (3) the history of previous violations; (4) the amount necessary to deter a future violation; (5) efforts to correct the violation; and (6) any other matter that justice may require.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff. September 1, 2005.
Sec. 205.454. NOTICE OF VIOLATION AND PENALTY. (a) If the acupuncture board by order determines that a violation has occurred and imposes an administrative penalty, the acupuncture board shall notify the affected person of the board's order. (b) The notice must include a statement of the right of the person to judicial review of the order.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff. September 1, 2005.
Sec. 205.455. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Not later than the 30th day after the date the acupuncture board's order imposing the administrative penalty is final, the person shall: (1) pay the penalty; (2) pay the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both; or
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(3) without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both. (b) Within the 30-day period, a person who acts under Subsection (a)(3) may: (1) stay enforcement of the penalty by: (A) paying the penalty to the court for placement in an escrow account; or (B) giving to the court a supersedeas bond approved by the court for the amount of the penalty and that is effective until all judicial review of the acupuncture board's order is final; or (2) request the court to stay enforcement of the penalty by: (A) filing with the court an affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and (B) giving a copy of the affidavit to the presiding officer of the acupuncture board by certified mail. (c) If the presiding officer of the acupuncture board receives a copy of an affidavit under Subsection (b)(2), the presiding officer may file with the court a contest to the affidavit not later than the fifth day after the date the copy is received. (d) The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the penalty and to give a supersedeas bond.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff. September 1, 2005.
Sec. 205.456. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the presiding officer of the acupuncture board may refer the matter to the attorney general for collection of the penalty.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff. September 1, 2005.
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Sec. 205.457. DETERMINATION BY COURT. (a) If on appeal the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced penalty. (b) If the court does not sustain the determination that a violation occurred, the court shall order that a penalty is not owed.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff. September 1, 2005.
Sec. 205.458. REMITTANCE OF PENALTY AND INTEREST. (a) If after judicial review the administrative penalty is reduced or not imposed by the court, the court shall, after the judgment becomes final: (1) order that the appropriate amount, plus accrued interest, be remitted to the person if the person paid the penalty; or (2) order the release of the bond in full if the penalty is not imposed or order the release of the bond after the person pays the penalty imposed if the person posted a supersedeas bond. (b) The interest paid under Subsection (a)(1) is the rate charged on loans to depository institutions by the New York Federal Reserve Bank. The interest is paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.
Added by Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 3.34, eff. September 1, 2005.
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TITLE 22 EXAMINING BOARDS PART 9 TEXAS MEDICAL BOARD CHAPTER 183 ACUPUNCTURE RULE §183.2 Definitions
The following words and terms, when used in this chapter, shall have the following meanings, unless the content clearly indicates otherwise.
(1) Ability to communicate in the English language--An applicant who has met the requirements set out in §183.4(a)(8) of this title (relating to Licensure).
(2) Acceptable approved acupuncture school--Effective January 1, 1996, and in addition to and consistent with the requirements of §205.206 of the Tex. Occ. Code:
(A) a school of acupuncture located in the United States or Canada which, at the time of the applicant's graduation, was a candidate for accreditation by the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) or another accrediting body recognized by the Texas Higher Education Coordinating Board, provides certification that the curriculum at the time of the applicant's graduation was equivalent to the curriculum upon which accreditation granted, offered a masters degree or a professional certificate or diploma upon graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal studies which at a minimum included the following:
(i) basic herbology including recognition, nomenclature, functions, temperature, taste, contraindications, and therapeutic combinations of herbs;
(ii) herbal formulas including traditional herbal formulas and their modifications or variations based on traditional methods of herbal therapy;
(iii) patent herbs including the names of the more common patent herbal medications and their uses; and
(iv) clinical training emphasizing herbal uses; or
(B) a school of acupuncture located in the United States or Canada which, at the time of the applicant's graduation, was accredited by ACAOM or another accrediting body recognized by the Texas Higher Education Coordinating Board, offered a masters degree or a professional certificate or diploma upon graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal studies which at a minimum included the following:
(i) basic herbology including recognition, nomenclature, functions, temperature, taste, contraindications, and therapeutic combinations of herbs;
(ii) herbal formulas including traditional herbal formulas and their modifications or variations based on traditional methods of herbal therapy;
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(iii) patent herbs including the names of the more common patent herbal medications and their uses; and
(C) a school of acupuncture located outside the United States or Canada that is determined by the board to be substantially equivalent to a Texas acupuncture school or a school defined in subparagraph (B) of this paragraph. An evaluation by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) or an evaluation requested by the board may be utilized when making a determination of substantial equivalence.
(3) Acupuncture Act or "the Act"--Chapter 205 of the Texas Occupations Code.
(4) Acupuncture--
(A) The insertion of an acupuncture needle and the application of moxibustion to specific areas of the human body as a primary mode of therapy to treat and mitigate a human condition, including the evaluation and assessment of the condition; and
(B) the administration of thermal or electrical treatments or the recommendation of dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction with the treatment described by subparagraph (A) of this paragraph.
(5) Acupuncture board or "board"--The Texas State Board of Acupuncture Examiners.
(6) Acupuncturist--A licensee of the acupuncture board who directly or indirectly charges a fee for the performance of acupuncture services.
(7) Agency--The divisions, departments, and employees of the Texas Medical Board, the Texas Physician Assistant Board, and the Texas State Board of Acupuncture Examiners.
(8) APA--The Administrative Procedure Act, Government Code, §2001.001 et seq.
(9) Applicant--A party seeking a license from the board.
(10) Application--An application is all documents and information necessary to complete an applicant's request for licensure including the following:
(A) forms furnished by the board, completed by the applicant:
(i) all forms and addenda requiring a written response must be printed in ink or typed;
(ii) photographs must meet United States Government passport standards;
(B) a fingerprint card, furnished by the acupuncture board, completed by the applicant, that must be readable by the Texas Department of Public Safety;
(C) all documents required under §183.4(c) of this title (relating to Licensure Documentation); and
(D) the required fee, payable by check through a United States bank.
(11) Assistant Presiding Officer--A member of the acupuncture board elected by the acupuncture board to
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fulfill the duties of the presiding officer in the event the presiding officer is incapacitated or absent, or the presiding officer's duly qualified successor under Robert's Rules of Order Newly Revised or board rules.
(12) Board member--One of the members of the acupuncture board, appointed and qualified pursuant to §§205.051 - 205.053 of the Act.
(13) Chiropractor--A licensee of the Texas State Board of Chiropractic Examiners.
(14) Contested case--A proceeding, including but not restricted to, licensing, in which the legal rights, duties, or privileges of a party are to be determined by the board after an opportunity for adjudicative hearing.
(15) Documents--Applications, petitions, complaints, motions, protests, replies, exceptions, answers, notices, or other written instruments filed with the medical board or acupuncture board in a licensure proceeding or by a party in a contested case.
(16) Eligible for legal practice and/or licensure in country of graduation--An applicant who has completed all requirements for legal practice of acupuncture and/or licensure in the country in which the school is located except for any citizenship requirements.
(17) Executive Director--The executive director of the agency or the authorized designee of the executive director.
(18) Full force--Applicants for licensure who possess a license in another jurisdiction must have it in full force and not restricted, canceled, suspended or revoked. An acupuncturist with a license in full force may include an acupuncturist who does not have a current, active, valid annual permit in another jurisdiction because that jurisdiction requires the acupuncturist to practice in the jurisdiction before the annual permit is current.
(19) Full NCCAOM examination--The National Certification Commission for Acupuncture and Oriental Medicine examination, consisting of the following:
(A) if taken before June 1, 2004: the Comprehensive Written Exam (CWE), the Clean Needle Technique Portion (CNTP), the Practical Examination of Point Location Skills (PEPLS), and the Chinese Herbology Exam; or
(B) if taken on or after June 1, 2004: the NCCAOM Foundation of Oriental Medicine Module, Acupuncture Module, Point Location Module, the Chinese Herbology Module, and the Biomedicine Module.
(20) Good professional character--An applicant for licensure must not be in violation of or have committed any act described in the Act, §205.351.
(21) Administrative Law Judge (ALJ)--An individual appointed to preside over administrative hearings pursuant to the APA.
(22) License--Includes the whole or part of any board permit, certificate, approval, registration, or similar form of permission required by law; specifically, a license and a registration.
(23) Licensing--Includes the medical board's and acupuncture board's process respecting the granting,
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denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.
(24) Medical board--The Texas Medical Board.
(25) Misdemeanors involving moral turpitude--Any misdemeanor of which fraud, dishonesty, or deceit is an essential element; burglary; robbery; sexual offense; theft; child molesting; substance diversion or substance abuse; an offense involving baseness, vileness, or depravity in the private social duties one owes to others or to society in general; or an offense committed with knowing disregard for justice or honesty.
(26) Party--The acupuncture board and each person named or admitted as a party in a SOAH hearing or contested case before the acupuncture board.
(27) Person--Any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character.
(28) Physician--A licensee of the medical board.
(29) Pleading--Written documents filed by parties concerning their respective claims.
(30) Presiding officer--The member of the acupuncture board appointed by the governor to preside over acupuncture board proceedings or the presiding officer's duly qualified successor in accordance with Robert's Rules of Order Newly Revised or board rules.
(31) Register--The Texas Register.
(32) Rule--Any agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedures or practice requirements of this board. The term includes the amendment or repeal of a prior section but does not include statements concerning only the internal management or organization of any agency and not affecting private rights or procedures. This definition includes substantive regulations.
(33) Secretary--The secretary-treasurer of the acupuncture board.
(34) Substantially equivalent to a Texas acupuncture school--A school or college of acupuncture that is an institution of higher learning designed to select and educate acupuncture students; provide students with the opportunity to acquire a sound basic acupuncture education through training; to develop programs of acupuncture education to produce practitioners, teachers, and researchers; and to afford opportunity for postgraduate and continuing medical education. The school must provide resources, including faculty and facilities, sufficient to support a curriculum offered in an intellectual and practical environment that enables the program to meet these standards. The faculty of the school shall actively contribute to the development and transmission of new knowledge. The school of acupuncture shall contribute to the advancement of knowledge and to the intellectual growth of its students and faculty through scholarly activity, including research. The school of acupuncture shall include, but not be limited to, the following characteristics:
(A) the facilities for didactic and clinical training (i.e., laboratories, hospitals, library, etc.) shall be adequate to ensure opportunity for proper education.
(B) the admissions standards shall be substantially equivalent to a Texas school of acupuncture.
(C) the basic curriculum shall include courses substantially equivalent to those delineated in the
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Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) core curriculum at the time of applicant's graduation.
(D) the curriculum shall be of at least 1800 hours in duration.
Source Note: The provisions of this §183.2 adopted to be effective May 16, 1994, 19 TexReg 3366; amended to be effective December 20, 1994, 19 TexReg 9598; amended to be effective January 12, 1996, 21 TexReg 108; amended to be effective October 22, 1996, 21 TexReg 9828; amended to be effective September 15, 1997, 22 TexReg 8998; amended to be effective May 10, 1998, 23 TexReg 4266; amended to be effective September 21, 2000, 25 TexReg 9217; amended to be effective May 6, 2001, 26 TexReg 3217; amended to be effective January 6, 2002, 26 TexReg 10866; amended to be effective March 6, 2003, 28 TexReg 1883; amended to be effective September 12, 2004, 29 TexReg 8511; amended to be effective January 9, 2005, 29TexReg12188;amendedto be effective May 1, 2006, 31 TexReg 3534; amended to be effective January 4, 2007, 31 TexReg 10799; amended to be effective May 6, 2009, 34 TexReg 2675
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TITLE 22 EXAMINING BOARDS PART 9 TEXAS MEDICAL BOARD CHAPTER 183 ACUPUNCTURE RULE §183.4 Licensure
(a) Qualifications. An applicant must present satisfactory proof to the acupuncture board that the applicant:
(1) is at least 21 years of age;
(2) is of good professional character as defined in §183.2 of this title (relating to Definitions);
(3) has successfully completed 60 semester hours of general academic college level courses, other than in acupuncture school, that are not remedial and would be acceptable at the time they were completed for credit on an academic degree at a two or four year institution of higher education within the United States accredited by an agency recognized by the Higher Education Coordinating Board or its equivalent in other states as a regional accrediting body. Coursework completed as a part of a degree program in acupuncture or Oriental medicine may be accepted by the acupuncture board if, in the opinion of the acupuncture board, such coursework is substantially equivalent to the required hours of general academic college level coursework;
(4) is a graduate of an acceptable approved acupuncture school;
(5) has taken and passed, within five attempts, each component of the full National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) examination. If an applicant submits to multiple attempts on a component before and on or after June 1, 2004, the number of attempts shall be combined based on the subject matter tested;
(6) has taken and passed the CCAOM (Council of Colleges of Acupuncture and Oriental Medicine) Clean Needle Technique (CNT) course and practical examination;
(7) for applicants who apply for a license on or after September 1, 2007, passes a jurisprudence examination ("JP exam"), which shall be conducted on the licensing requirements and other laws, rules, or regulations applicable to the acupuncture profession in this state. The jurisprudence examination shall be developed and administered as follows:
(A) Questions for the JP Exam shall be prepared by agency staff with input from the Acupuncture board and the agency staff shall make arrangements for a facility by which applicants can take the examination.
(B) Applicants must pass the JP exam with a score of 75 or better within three attempts, unless the Board allows an additional attempt based upon a showing of good cause. An applicant who is unable to pass the JP exam within three attempts must appear before the Licensure Committee of the board to address the applicant's inability to pass the examination and to re-evaluate the applicant's eligibility for licensure. It is at the discretion of the committee to allow an applicant additional attempts to take the JP exam.
(C) An examinee shall not be permitted to bring medical books, compends, notes, medical journals, Appendix E to Brief of Appellant Page 6 of 17
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calculators or other help into the examination room, nor be allowed to communicate by word or sign with another examinee while the examination is in progress without permission of the presiding examiner, nor be allowed to leave the examination room except when so permitted by the presiding examiner.
(D) Irregularities during an examination such as giving or obtaining unauthorized information or aid as evidenced by observation or subsequent statistical analysis of answer sheets, shall be sufficient cause to terminate an applicant's participation in an examination, invalidate the applicant's examination results, or take other appropriate action.
(E) A person who has passed the JP Exam shall not be required to retake the Exam for another or similar license, except as a specific requirement of the board.
(8) is able to communicate in English as demonstrated by one of the following:
(A) passage of the NCCAOM examination taken in English;
(B) passage of the TOEFL (Test of English as a Foreign Language) with a score of at least "intermediate" on the Reading and Listening sections and a score of at least "fair" on the Speaking and Writing sections of the Internet Based Test (iBT®), or a score of 550 or higher on the paper based test (PBT);
(C) passage of the TSE (Test of Spoken English) with a score of 45 or higher;
(D) passage of the TOEIC (Test of English for International Communication) with a score of 500 or higher;
(E) graduation from an acceptable approved school of acupuncture located in the United States or Canada; or
(F) at the discretion of the acupuncture board, passage of any other similar, validated exam testing English competency given by a testing service with results reported directly to the acupuncture board or with results otherwise subject to verification by direct contact between the testing service and the acupuncture board.
(9) can demonstrate current competence through the active practice of acupuncture.
(A) All applicants for licensure shall provide sufficient documentation to the board that the applicant has, on a full-time basis, actively treated persons, been a student at an acceptable approved acupuncture school, or been on the active teaching faculty of an acceptable approved acupuncture school, within either of the last two years preceding receipt of an application for licensure.
(B) The term "full-time basis," for purposes of this section, shall mean at least 20 hours per week for 40 weeks duration during a given year.
(C) Applicants who do not meet the requirements of subparagraphs (A) and (B) of this paragraph may, in the discretion of the executive director or board, be eligible for an unrestricted license or a restricted license subject to one or more of the following conditions or restrictions:
(i) limitation of the practice of the applicant to specified components of the practice of acupuncture and/or exclusion of specified components of the practice of acupuncture;
(ii) remedial education; or
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(iii) such other remedial or restrictive conditions or requirements that, in the discretion of the board are necessary to ensure protection of the public and minimal competency of the applicant to safely practice acupuncture.
(10) Alternative License Procedure for Military Spouse.
(A) An applicant who is the spouse of a member of the armed forces of the United States assigned to a military unit headquartered in Texas may be eligible for alternative demonstrations of competency for certain licensure requirements. Unless specifically allowed in this subsection, an applicant must meet the requirements for licensure as specified in this chapter.
(B) To be eligible, an applicant must be the spouse of a person serving on active duty as a member of the armed forces of the United States and meet one of the following requirements:
(i) holds an active unrestricted medical license issued by another state that has licensing requirements that are substantially equivalent to the requirements for a Texas acupuncture license; or
(ii) within the five years preceding the application date held an acupuncture license in this state that expired and was cancelled for nonpayment while the applicant lived in another state for at least six months.
(C) Applications for licensure from applicants qualifying under paragraph (9)(A) and (B) of this subsection shall be expedited by the board's licensure division.
(D) Alternative Demonstrations of Competency Allowed. Applicants qualifying under paragraph (9)(A) and (B) of this subsection:
(i) are not required to comply with subsection (c)(1) of this section; and
(ii) notwithstanding the one year expiration in subsection (b)(1)(B) of this section, are allowed an additional 6 months to complete the application prior to it becoming inactive; and
(iii) notwithstanding the 60 day deadline in subsection (b)(1)(G) of this section, may be considered for permanent licensure up to 5 days prior to the board meeting.
(b) Procedural rules for licensure applicants. The following provisions shall apply to all licensure applicants.
(1) Applicants for licensure:
(A) whose documentation indicates any name other than the name under which the applicant has applied must furnish proof of the name change;
(B) whose applications have been filed with the board in excess of one year will be considered expired. Any fee previously submitted with that application shall be forfeited unless otherwise provided by §175.5 of this title (relating to Payment of Fees or Penalties). Any further request for licensure will require submission of a new application and inclusion of the current licensure fee. An extension to an application may be granted under certain circumstances, including:
(i) Delay by board staff in processing an application;
(ii) Application requires Licensure Committee review after completion of all other processing and will
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expire prior to the next scheduled meeting;
(iii) Licensure Committee requires an applicant to meet specific additional requirements for licensure and the application will expire prior to deadline established by the Committee;
(iv) Applicant requires a reasonable, limited additional period of time to obtain documentation after completing all other requirements and demonstrating diligence in attempting to provide the required documentation;
(v) Applicant is delayed due to unanticipated military assignments, medical reasons, or catastrophic events;
(C) who in any way falsify the application may be required to appear before the acupuncture board. It will be at the discretion of the acupuncture board whether or not the applicant will be issued a Texas acupuncture license;
(D) on whom adverse information is received by the acupuncture board may be required to appear before the acupuncture board. It will be at the discretion of the acupuncture board whether or not the applicant will be issued a Texas license;
(E) shall be required to comply with the acupuncture board's rules and regulations which are in effect at the time the completed application form and fee are filed with the board;
(F) may be required to sit for additional oral, written, or practical examinations or demonstrations that, in the opinion of the acupuncture board, are necessary to determine competency of the applicant;
(G) must have the application for licensure completed and legible in every detail 60 days prior to the acupuncture board meeting in which they are to be considered for licensure unless otherwise determined by the acupuncture board based on good cause.
(2) Applicants for licensure who wish to request reasonable accommodation due to a disability must submit the request at the time of filing the application.
(3) Applicants who have been licensed in any other state, province, or country shall complete a notarized oath or other verified sworn statement in regard to the following:
(A) whether the license, certificate, or authority has been the subject of proceedings against the applicant for the restriction for cause, cancellation for cause, suspension for cause, or revocation of the license, certificate, or authority to practice in the state, province, or country, and if so, the status of such proceedings and any resulting action; and
(B) whether an investigation in regard to the applicant is pending in any jurisdiction or a prosecution is pending against the applicant in any state, federal, national, local, or provincial court for any offense that under the laws of the state of Texas is a felony, and if so, the status of such prosecution or investigation.
(4) An applicant for a license to practice acupuncture may not be required to appear before the acupuncture board or any of its committees unless the application raises questions about the applicant's:
(A) physical or mental impairment;
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(B) criminal conviction; or
(C) revocation of a professional license.
(c) Licensure documentation.
(1) Original documents/interview. Upon request, any applicant must appear for a personal interview at the board offices and present original documents to a representative of the board for inspection. Original documents may include, but are not limited to, those listed in paragraph (2) of this subsection.
(2) Required documentation. Documentation required of all applicants for licensure shall include the following:
(A) Birth certificate/proof of age. Each applicant for licensure must provide a copy of either a birth certificate and translation, if necessary, to prove that the applicant is at least 21 years of age. In instances where a birth certificate is not available, the applicant must provide copies of a passport or other suitable alternate documentation.
(B) Name change. Any applicant who submits documentation showing a name other than the name under which the applicant has applied must present copies of marriage licenses, divorce decrees, or court orders stating the name change. In cases where the applicant's name has been changed by naturalization the applicant must submit the original naturalization certificate by hand delivery or by certified mail to the board office for inspection.
(C) Examination scores. Each applicant for licensure must have a certified transcript of grades submitted directly from the appropriate testing service to the acupuncture board for all examinations used in Texas for purposes of licensure in Texas.
Cont'd...
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TITLE 22 EXAMINING BOARDS PART 9 TEXAS MEDICAL BOARD CHAPTER 183 ACUPUNCTURE RULE §183.20 Continuing Acupuncture Education
(a) Purpose. This section is promulgated to promote the health, safety, and welfare of the people of Texas through the establishment of minimum requirements for continuing acupuncture education (CAE) for licensed Texas acupuncturists so as to further enhance their professional skills and knowledge.
(b) Minimum Continuing Acupuncture Education. As a prerequisite to the annual registration of the license of an acupuncturist, the acupuncturist shall complete 17 hours of CAE each year.
(1) The required hours shall be from courses that meet one of the following criteria at the time the hours are taken:
(A) are designated or otherwise approved for credit by the Texas State Board of Acupuncture Examiners based on a review and recommendation of the course content by the Education Committee of the board as described in subsection (n) of this section;
(B) are offered by approved providers;
(C) have been approved for CAE credit for a minimum of three years by another state acupuncture board having first gone through a formal approval process;
(D) approved by the NCCAOM (National Certification Commission for Acupuncture and Oriental Medicine) for professional development activity credit; or
(E) are provided outside of the United States by a provider of continuing acupuncture education that are acceptable to the Board.
(2) At least eight hours shall be in general acupuncture in order to ensure that a licensee's CAE is comprehensive and that the licensee's overall acupuncture knowledge, skills, and competence are enhanced.
(3) At least one of the required hours shall be from a course in ethics.
(4) At least two of the required hours shall be in herbology. More than two hours shall be expected of a licensee whose primary practice includes prescriptions of herbs.
(5) Effective for licensees applying for renewal of their licensees on or after November 30, 2010, at least one hour of biomedicine.
(6) No more than two of the required hours may be from courses that primarily relate to practice enhancement or business or office administration.
(7) Courses may be taught through live lecture, distance learning, or the Internet.
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(8) No more than a total of eight hours completed under paragraph (1)(D) or (E) of this subsection may be applied to the total hours required each registration period.
(c) Reporting Continuing Acupuncture Education. An acupuncturist must report on the licensee's annual registration form whether the licensee has completed the required acupuncture education during the previous year.
(d) Grounds for Exemption from Continuing Acupuncture Education. An acupuncturist may request in writing and may be exempt from the annual minimum continuing acupuncture education requirements for one or more of the following reasons:
(1) catastrophic illness;
(2) military service of longer than one year in duration;
(3) acupuncture practice and residence of longer than one year in duration outside the United States; and/or
(4) good cause shown on written application of the licensee which gives satisfactory evidence to the board that the licensee is unable to comply with the requirements of continuing acupuncture education.
(e) Exemption Requests. Exemption requests shall be subject to the approval of the executive director of the board, and shall be submitted in writing at least 30 days prior to the expiration of the license.
(f) Exemption Duration and Renewal. An exemption granted under subsections (d) and (e) of this section may not exceed one year, but may be renewed annually upon written request submitted at least 30 days prior to the expiration of the current exemption.
(g) Verification of Credits. The board may require written verification of continuing acupuncture education hours from any licensee and the licensee shall provide the requested verification within 30 calendar days of the date of the request. Failure to timely provide the requested verification may result in disciplinary action by the board.
(h) Nonrenewal for Insufficient Continuing Acupuncture Education. Unless exempted under the terms of this section, the apparent failure of an acupuncturist to obtain and timely report the 17 hours of continuing education hours as required and provided for in this section shall result in nonrenewal of the license until such time as the acupuncturist obtains and reports the required hours; however, the executive director of the board may issue to such an acupuncturist a temporary license numbered so as to correspond to the nonrenewed license. Such a temporary license issued pursuant to this subsection may be issued to allow the board to verify the accuracy of information related to the continuing acupuncture education hours of the acupuncturist and to allow the acupuncturist who has not obtained or timely reported the required number of hours an opportunity to correct any deficiency so as not to require termination of ongoing patient care.
(i) Fee for Issuance of Temporary License. The fee for issuance of a temporary license pursuant to the provisions of this section shall be in the amount specified under §175.1 of this title (relating to Application Fees); however, the fee need not be paid prior to the issuance of the temporary license, but shall be paid prior to the renewal of a permanent license.
(j) Application of Additional Hours. Continuing acupuncture education hours that are obtained to comply with the requirements for the preceding year as a prerequisite for licensure renewal, shall first be credited to meet the requirements for that previous year. Once the requirements of the previous year are satisfied, any Appendix E to Brief of Appellant Page 12 of 17
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additional hours obtained shall be credited to meet the continuing acupuncture education requirements of the current year. A licensee may carry forward CAE hours earned prior to an annual registration report which are in excess of the 17-hour annual requirement and such excess hours may be applied to the following years' requirements. A maximum of 34 total excess hours may be carried forward. Excess CAE hours may not be carried forward or applied to an annual report of CAE more than two years beyond the date of the annual registration following the period during which the hours were earned.
(k) False Reports/Statements. An intentionally false report or statement to the board by a licensee regarding continuing acupuncture education hours reportedly obtained shall be a basis for disciplinary action by the board pursuant to the Act, §205.351(a)(2) and (6).
(l) Monetary Penalty. Failure to obtain and timely report the continuing acupuncture education hours for renewal of a license shall subject the licensee to a monetary penalty for late registration in the amount set forth in §175.2 and §175.3 of this title (relating to Registration and Renewal Fees and Penalties).
(m) Disciplinary Action, Conditional Licensure, and Construction. This section shall be construed to allow the board to impose requirements for completion of additional continuing acupuncture education hours for purposes of disciplinary action and conditional licensure.
(n) Required Content for Continuing Acupuncture Education Courses. Continuing Acupuncture Education courses must meet the following requirements:
(1) the content of the course, program, or activity is related to the practice of acupuncture or oriental medicine, and shall:
(A) be related to the knowledge and/or technical skills required to practice acupuncture; or
(B) be related to direct and/or indirect patient care;
(2) the method of instruction is adequate to teach the content of the course, program, or activity;
(3) the credentials of the instructor(s) indicate competency and sufficient training, education, and experience to teach the specific course, program, or activity;
(4) the education provider maintains an accurate attendance/participation record on individuals completing the course, program, or activity;
(5) each credit hour for the course, program, or activity is equal to no less than 50 minutes of actual instruction or training;
(6) the course, program, or activity is provided by a knowledgeable health care provider or reputable school, state, or professional organization;
(7) the course description provides adequate information so that each participant understands the basis for the program and the goals and objectives to be met; and
(8) the education provider obtains written evaluations at the end of each program, collate the evaluations in a statistical summary, and makes the summary available to the board upon request.
(o) Continuing Acupuncture Education Approval Requests. All requests for approval of courses, programs,
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or activities for purposes of satisfying CAE credit requirements shall be submitted in writing to the Education Committee of the board on a form approved by the board, along with any required fee, and accompanied by information, documents, and materials accurately describing the course, program, or activity, and necessary for verifying compliance with the requirements set forth in subsection (n) of this section. At the discretion of the board or the Education Committee, supplemental information, documents, and materials may be requested as needed to obtain an adequate description of the course, program, or activity and to verify compliance with the requirements set forth in subsection (n) of this section. At the discretion of the board or the Education Committee, inspection of original supporting documents may be required for a determination on an approval request. The Acupuncture Board shall have the authority to conduct random and periodic checks of courses, programs, or activities to ensure that criteria for education approval as set forth in subsection (n) of this section have been met and continue to be met by the education provider. Upon requesting approval of a course, program, or activity, the education provider shall agree to such checks by the Acupuncture Board or its designees, and shall further agree to provide supplemental information, documents, and material describing the course, program, or activity which, in the discretion of the Acupuncture Board, may be needed for approval or continued approval of the course, program, or activity. Failure of an education provider to provide the necessary information, documents, and materials to show compliance with the standards set forth in subsection (n) of this section shall be grounds for denial of CAE approval or recision of prior approval in regard to the course, program, or activity.
(p) Reconsideration of Denials of Approval Requests. Determinations to deny approval of a CAE course, program, or activity may be reconsidered by the Education Committee or the board based on additional information concerning the course, program, or activity, or upon a showing of good cause for reconsideration. A decision to reconsider a denial determination shall be a discretionary decision based on consideration of the additional information or the good cause showing. Requests for reconsideration shall be made in writing by the education provider, and may be made orally or in writing by board staff or a committee of the board.
(q) Reconsideration of Approvals. Determinations to approve a CAE course, program, or activity may be reconsidered by the Education Committee or the board based on additional information concerning the course, program, or activity, or upon a showing of good cause. A decision to reconsider an approval determination shall be a discretionary decision based on consideration of the additional information or the good cause showing. Requests for reconsideration may be made in writing by a member of the public or may be made orally or in writing by board staff or a committee of the board.
(r) Criteria for Provider Approval.
(1) In order to be an approved provider, a provider shall submit to the board a provider application on a form approved by the board, along with any required fee. All provider applications and documentation submitted to the board shall be typewritten and in English.
(2) To become an approved provider, a provider shall submit to the board evidence that the provider has three continuous years of previous experience providing at least one different CAE course in Texas in each of those years that were approved by the board. In addition the provider must have no history of complaints or reprimands with the board.
(3) The approval of the provider shall expire three years after it is issued by the board and may be renewed upon the filing of the required application, along with any required fee.
(4) Acupuncture schools and colleges which have been approved by the board, as defined under §183.2(2) Appendix E to Brief of Appellant Page 14 of 17
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of this title (relating to Definitions), who seek to be approved providers shall be required to submit an application for an approved provider number to the board.
(s) Requirements of Approved Providers.
(1) For the purpose of this chapter, the title "approved provider" can only be used when a person or organization has submitted a provider application form, and has been issued a provider number unless otherwise provided.
(2) A person or organization may be issued only one provider number. When two or more approved providers co-sponsor a course, the course shall be identified by only one provider number and that provider shall assume responsibility for recordkeeping, advertising, issuance of certificates and instructor(s) qualifications.
(3) An approved provider shall offer CAE programs that are presented or instructed by persons who meet the minimum criteria as described in subsection (t) of this section.
(4) An approved provider shall keep the following records for a period of four years in one identified location:
(A) Course outlines of each course given.
(B) Record of time and places of each course given.
(C) Course instructor curriculum vitaes or resumes.
(D) The attendance record for each course.
(E) Participant evaluation forms for each course given.
(5) An approved provider shall submit to the board the following within ten days of the board's request:
(A) A copy of the attendance record showing the name, signature and license number of any licensed acupuncturists who attended the course.
(B) The participant evaluation forms of the course.
(6) Approved providers shall issue, within 60 days of the conclusion of a course, to each participant who has completed the course, a certificate of completion that contains the following information:
(A) Provider's name and number.
(B) Course title.
(C) Participant's name and, if applicable, his or her acupuncture license number.
(D) Date and location of course.
(E) Number of continuing education hours completed.
(F) Description of hours indicating whether hours completed are in general acupuncture, ethics, herbology, biomedicine, or practice management.
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(G) Statement directing the acupuncturist to retain the certificate for at least four years from the date of completion of the course.
(7) Approved providers shall notify the board within 30 days of any changes in organizational structure of a provider and/or the person(s) responsible for the provider's continuing education course, including name, address, or telephone number changes.
(8) Provider approval is non-transferable.
(9) The board may audit during reasonable business hours records, courses, instructors and related activities of an approved provider.
(t) Instructors.
(1) Minimum qualifications of an acupuncturist instructor. The instructor must:
(A) hold a current valid license to practice acupuncture in Texas or other state and be free of any disciplinary order or probation by a state licensing authority; and
(B) be knowledgeable, current and skillful in the subject matter of the course as evidenced through one of the following:
(i) hold a minimum of a master's degree from an accredited college or university or a post-secondary educational institution, with a major in the subject directly related to the content of the program to be presented;
(ii) have experience in teaching similar subject matter content within the last two years in the specialized area in which he or she is teaching;
(iii) have at least one year's experience within the last two years in the specialized area in which he or she is teaching; or
(iv) have graduated from an acceptable acupuncture school, as defined under §183.2(2) of this title, and have completed 3 years of professional experience in the licensed practice of acupuncture. (2) Minimum qualifications of a non-acupuncturist instructor. The instructor must: (A) be currently licensed or certified in his or her area of expertise if appropriate; (B) show written evidence of specialized training or experience, which may include, but not be limited to, a certificate of training or an advanced degree in a given subject area; and (C) have at least one year's teaching experience within the last two years in the specialized area in which he or she teaches. (u) CAE Credit for Course Instruction. Instructors of board-approved CAE courses or courses taught through a program offered by an approved provider for CAE credit may receive three hours of CAE credit for each hour of lecture, not to exceed six hours of continuing education credit per year, regardless of how many hours taught. Participation as a member of a panel presentation for the approved course shall not entitle the participant to earn CAE credit as an instructor. No CAE credit shall be granted to school faculty members as credit for their regular teaching assignments.
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(v) Expiration, Denial and Withdrawal of Approval.
(1) Approval of any CAE course shall expire three years after the date of approval.
(2) The board may withdraw its approval of a provider or deny an application for approval if the provider is convicted of a crime substantially related to the activities of a provider.
(3) Any material misrepresentation of fact by a provider or applicant in any information required to be submitted to the board is grounds for withdrawal of approval or denial of an application.
(4) The board may withdraw its approval of a provider after giving the provider written notice setting forth its reasons for withdrawal and after giving the provider a reasonable opportunity to be heard by the board or its designee.
(5) Should the board deny approval of a provider, the provider may appeal the action by filing a letter stating the reason(s) with the board. The letter of appeal shall be filed with the board within ten days of the mailing of the applicant's notification of the board's denial. The appeal shall be considered by the board.
Source Note: The provisions of this §183.20 adopted to be effective September 21, 2000, 25 TexReg 9217; amended to be effective January 6, 2002, 26 TexReg 10866; amended to be effective September 19, 2002, 27 TexReg 8770; amended to be effective June 29, 2003, 28 TexReg 4633; amended to be effective September 14, 2003, 28 TexReg 7704; amended to be effective March 6, 2005, 30 TexReg 1076; amended to be effective January 4, 2007, 31 TexReg 10799; amended to be effective May 6, 2009, 34 TexReg 2675; amended to be effective February 28, 2011, 36 TexReg 1278; amended to be effective June 28, 2011, 36 TexReg 3918
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7 of 7 8/6/2015 1:59 PM APPENDIX F hearing denied.
Court of Appeals of Texas, West Headnotes Austin. TEXAS BOARD OF CHIROPRACTIC EXAMINERS, [1] Health 198H 176 Glenn Parker, Executive Director, and Texas Chiropractic Association, Appellants 198H Health v. 198HI Regulation in General TEXAS MEDICAL ASSOCIATION, Texas Medical 198HI(B) Professionals Board, and the State of Texas, Appellees. 198Hk162 Unauthorized Practice 198Hk176 k. Chiropractors. Most Cited No. 03–10–00673–CV. Cases July 6, 2012. Health 198H 192 Background: Medical association brought action against Texas Board of Chiropractic Examiners (TBCE) seeking 198H Health declarations that various provisions of the 198HI Regulation in General scope-of-practice rule that permitted needle electromyog- 198HI(B) Professionals raphy (EMG) and manipulation under anesthesia (MUA) 198Hk191 Regulation of Professional Conduct; were invalid because they exceeded the statutory scope of Boards and Officers chiropractic and constituted the unlawful practice of 198Hk192 k. In general. Most Cited Cases medicine. The District Court, Travis County, Stephen Yelenosky, J., invalidated rules. TBCE appealed. Texas Board of Chiropractic Examiners (TBCE) ex- ceeded its authority in promulgating rules allowing chiro- Holdings: The Court of Appeals, Bob Pemberton, J., held practors to perform needle electromyography (EMG); that: some types of EMG needles had beveled, blade-like edges, (1) TBCE exceeded its authority in promulgating rules which were designed to slice or cut through tissue, and allowing chiropractors to perform needle EMG; thus, the use of the needles constituted an “incisive” pro- (2) MUA was a surgical procedure excluded from the cedure that was excluded by statute from the scope of statutory scope of chiropractic; chiropractic. V.T.C.A., Occupations Code § 201.002(b–c); (3) rule allowing chiropractors to make certain diagnosis 22 TAC § 75.17(a)(3). regarding the biomechanical condition of the spine or musculoskeletal system fell within the statutory scope of [2] Health 198H 176 chiropractic; and (4) rule allowing chiropractors to diagnose a subluxation complex of the spine or musculoskeletal system fell within 198H Health the statutory scope of chiropractic. 198HI Regulation in General 198HI(B) Professionals 198Hk162 Unauthorized Practice Affirmed in part, reversed in part, and remanded; re- 198Hk176 k. Chiropractors. Most Cited
Appendix F to Brief of Appellant Page 1 of 32 Cases corporated the 2004 version of American Medical Asso- ciation's (AMA) Current Procedural Terminology (CPT) Health 198H 192 Codebook in defining “surgical procedure,” rather than the CPT Codebook in whatever manner the AMA might revise or amend it in the future, and thus, the Legislature did not 198H Health improperly delegate its authority in a way that violated the 198HI Regulation in General separation-of-powers clause of the Texas Constitution. 198HI(B) Professionals Vernon's Ann.Texas Const. Art. 3, § 1; V.T.C.A., Occu- 198Hk191 Regulation of Professional Conduct; pations Code § 201.002(a)(4). Boards and Officers 198Hk192 k. In general. Most Cited Cases [4] Health 198H 176 Manipulation under anesthesia (MUA) was a “surgical procedure” excluded from the statutory scope of chiro- 198H Health practic, and thus, rules promulgated by the Texas Board of 198HI Regulation in General Chiropractic Examiners (TBCE) allowing chiropractors to 198HI(B) Professionals perform MUA were invalid, where the American Medical 198Hk162 Unauthorized Practice Association's annual Current Procedural Terminology 198Hk176 k. Chiropractors. Most Cited (CPT) Codebook listed MUA as a medical procedure in the Cases surgery section of the Codebook. V.T.C.A., Occupations Code §§ 201.002(a)(4), 201.154; 22 TAC § Health 198H 192 75.17(e)(2)(O). 198H Health [3] Constitutional Law 92 2442 198HI Regulation in General 198HI(B) Professionals 92 Constitutional Law 198Hk191 Regulation of Professional Conduct; 92XX Separation of Powers Boards and Officers 92XX(B) Legislative Powers and Functions 198Hk192 k. In general. Most Cited Cases 92XX(B)4 Delegation of Powers 92k2442 k. To non-governmental entities. In the absence of a separate notice of appeal filed by Most Cited Cases medical association, appellate court lacked jurisdiction to consider medical association's claim that the statutory Health 198H 105 scope of chiropractic did not include “diagnosing” a con- dition, as opposed to analyzing, examining, or evaluating it, where claim sought relief beyond that which association 198H Health was afforded in the district court's judgment, which 198HI Regulation in General granted motions for partial summary judgment and ren- 198HI(A) In General dered a take-nothing judgment as to association's claims 198Hk102 Constitutional and Statutory Provi- for a declaration that the use of “diagnosis” in itself ren- sions dered applicable rule invalid. Rules App.Proc., Rule 198Hk105 k. Validity. Most Cited Cases 25.1(c); 22 TAC § 75.17(d).
Statute regarding scope of chiropractic practice in- [5] Health 198H 176
Appendix F to Brief of Appellant Page 2 of 32 198Hk192 k. In general. Most Cited Cases 198H Health 198HI Regulation in General Although the definition of subluxation complex as 198HI(B) Professionals used in rule promulgated by the Texas Board of Chiro- 198Hk162 Unauthorized Practice practic Examiners (TBCE) allowing chiropractors to make 198Hk176 k. Chiropractors. Most Cited certain diagnosis indicated that its existence might have Cases functional or pathological consequences or that it might affect essentially every part of the body, the rule itself only Health 198H 192 allowed chiropractors to render an analysis, diagnosis, or other opinion regarding a subluxation complex of the spine or musculoskeletal system, and thus, the rule fell within the 198H Health statutory scope of chiropractic. V.T.C.A., Occupations 198HI Regulation in General Code § 201.002(b); 22 TAC § 75.17(d)(1)(B). 198HI(B) Professionals 198Hk191 Regulation of Professional Conduct; Boards and Officers West Codenotes 198Hk192 k. In general. Most Cited Cases Held Invalid22 TAC § 75.17(a)(3), (e)(2)(O). *465 Jason D. Ray, Jennifer S. Riggs, Riggs, Aleshire & Ray, P.C., Joe H. Thrash, Assistant Attorney General, Environmental Rule promulgated by the Texas Board of Chiropractic Protection & Administrative Law Division, Matt C. Wood, Examiners (TBCE) allowing chiropractors to make certain Baker Botts, L.L.P., Austin, TX, for appellant. diagnosis restricted any such diagnosis to the biomechan- ical condition of the spine or musculoskeletal system, and thus, the rule fell within the statutory scope of chiropractic. David F. Bragg, Law Offices of David F. Bragg, P.C., V.T.C.A., Occupations Code § 201.002(b)(1); 22 TAC § Bastrop, TX, Nancy K. Juren, Angela V. Colmenero, As- 75.17(d)(1)(A). sistant Attorney General, General Litigation Division, Donald P. Wilcox, Andrea Schwab, C.J. Francisco, Office of General Counsel, Texas Medical Association, Austin, [6] Health 198H 176 TX, for appellee.
198H Health *466 Before Chief Justice JONES, Justices PEMBERTON 198HI Regulation in General and HENSON. 198HI(B) Professionals 198Hk162 Unauthorized Practice 198Hk176 k. Chiropractors. Most Cited OPINION Cases BOB PEMBERTON, Justice. We withdraw our opinion and judgment dated April 5, 2012, and substitute the following in its place. The motion Health 198H 192 for rehearing filed by appellee Texas Medical Association is denied. 198H Health 198HI Regulation in General The Texas Board of Chiropractic Examiners (TBCE), 198HI(B) Professionals its executive director, and the Texas Chiropractic Associ- 198Hk191 Regulation of Professional Conduct; ation appeal a final district court judgment invalidating Boards and Officers portions of TBCE's recently adopted administrative rule
Appendix F to Brief of Appellant Page 3 of 32 defining the scope of practice of chiropractic. See 22 Tex. However, the Legislature has carved out of this broad Admin. Code § 75.17 (2011) (Tex. Bd. of Chiropractic definition of “practicing medicine”—and, thus, exempted Exam'rs, Scope of Practice). The rule provisions at issue from the Medical Practice Act's education, training, and purport to authorize TBCE's licensees to perform proce- licensing standards and the TMB's regulatory authority—a dures known as manipulation under anesthesia and needle variety of other health-related fields on which it has im- electromyography, and to “diagnose” certain conditions. posed different legal requirements and regulations. See id. See id. § 75.17(a)(3), (c)(2)(D), (c)(3)(A), (d)(1)(A)–(B), § 151.052. Such exemptions, our Texas high courts have (e)(2)(O). We will affirm the judgment in part and reverse reasoned, do not amount to an unconstitutional “preference and remand in part. ... to any school[ ] of medicine” to the extent the exempted treatment or method does not extend to the “whole body.” BACKGROUND See Schlichting v. Texas State Bd. of Med. Exam'rs, 158 Article XVI, section 31 of the Texas Constitution Tex. 279, 310 S.W.2d 557, 564 (1958); Ex parte Halsted, authorizes the Legislature to “pass laws prescribing the 147 Tex.Crim. 453, 182 S.W.2d 479, 486 (1944). Among qualifications of practitioners of medicine in this State,” the exemptions, the Legislature *467 has included “a li- with the caveat that “no preference shall ever be given by censed chiropractor engaged strictly in the practice of law to any schools of medicine.” Tex. Const. art. XVI, § chiropractic as defined by law.” See Tex. Occ.Code Ann. § 31. In turn, the Legislature has enacted the Medical Prac- 151.052(a)(3). Chiropractors are currently regulated under tice Act, in which it has delegated broad authority to the chapter 201 of the occupations code, which defines the Texas Medical Board (TMB) to regulate the “practice of permissible scope of chiropractic practice, imposes its own medicine” in this state, mandated that a person cannot set of educational and licensing requirements, and dele- lawfully “practice medicine” without a TMB-issued li- gates authority to TBCE to administer the regime. See id. cense, and imposed rigorous education and training re- §§ 201.001–.606 (West 2004 & Supp. 2011). quirements as a prerequisite to licensing eligibility. See Tex. Occ.Code Ann. §§ 151.001–.056 (West 2004 & Supp. The net effect of the statutory interplay is that a person 2011) (Medical Practice Act); id. §§ 151.003(2) (providing licensed by TBCE as a chiropractor but not by the TMB to that TMB “should remain the primary means of licensing, “practice medicine” (i.e., as a physician FN1) can lawfully regulating, and disciplining physicians.”), 152.001(a) do things that would otherwise constitute “practicing (West Supp. 2011) (designating TMB as agency with medicine” as long as he remains within the statutory scope power to regulate the practice of medicine), 153.001(3) of chiropractic under chapter 201. However, to the extent (West 2004) (granting TMB the authority to adopt rules to he exceeds the statutory scope of chiropractic, he would regulate the practice of medicine), 155.001 (West 2004) subject himself to the Medical Practice Act—and practice (requiring license to practice medicine), 155.003 (West medicine unlawfully. See id. §§ 151.002(a)(13), 201.002; FN2 Supp. 2011) (setting forth requirements for license to see also Teem v. State, 79 Tex.Crim. 285, 183 S.W. practice medicine). The Legislature has defined “practic- 1144 (1916) (involving prosecution of chiropractor for ing medicine” under the Medical Practice Act as “the di- unlawfully practicing medicine prior to Texas's legislative agnosis, treatment, or offer to treat a mental or physical recognition and legalization of chiropractic). Another disease or disorder or a physical deformity or injury by any consequence of this statutory interplay is a long history of system or method, or the attempt to effect cures of those professional, scientific, or economic antagonism between conditions” by a person who either “directly or indirectly chiropractors and the medical community, and resultant charges money or other compensation for those services” disputes, spanning all three branches of government, re- or publicly professes to be a physician or surgeon. See id. § garding where any legal line between chiropractic and the 151.002(a)(13). practice of medicine is or should be. Key participants in these disputes have included the two professional associa-
Appendix F to Brief of Appellant Page 4 of 32 tions that are parties to this appeal, the Texas Chiropractic the biomechanical condition of the spine and musculo- Association (TCA) and the Texas Medical Association skeletal system of the human body” and (2) “adjustment, (TMA), which advocate on behalf of the respective inter- manipulation, or other *469 procedures in order to im- ests of chiropractors and physicians and their some- prove subluxation or the biomechanics of the musculo- times-competing views of patient welfare. skeletal system.” See id. §§ 1, 3, 1989 Tex. Gen. Laws at 1005–06. FN1. See Tex. Occ.Code Ann. § 151.002(a)(12) (West Supp. 2011) (“physician” refers to a li- FN3. While different cultures throughout history censee under the Medical Practice Act). have employed manipulation of human bones and tissue as an intended means of improving health, FN2. Conversely, physicians do not subject David D. Palmer is typically credited with origi- themselves to chapter 201 if their conduct comes nating the modern theory of chiropractic in 1895, within the statutory scope of chiropractic. See id. when he reportedly restored a man's hearing by § 201.003(b) (West 2004) (Chapter 201 “does not using spinal manipulation. See Walter I. Ward- limit or affect the rights and powers of a physician well, Chiropractic: History & Evolution of a New licensed in this state to practice medicine.”). Profession 2 (1992); Erland Pettman, A History of Manipulative Therapy, 15 The Journal of Manual & Manipulative Therapy 165, 165–66 (2007); Chiropractic was historically rooted in a theory that a Judith Turner, Gale Encyclopedia of Medicine: wide range of human health problems stem from spinal Chiropractic (2006). Palmer concluded that mis- misalignment—or a broader category of spinal disorders alignment or “subluxations” in the spine created termed “subluxations”—and can be cured through manip- pressure on or irritation of nerves that, in turn, ulation of vertebrae.FN3 At its 1949 inception, Texas's could lead to various health problems, disease, or statutory regime defining and regulating chiropractic re- disability. Wardwell at 2; Pettman at 168. Based flected*468 this traditional focus on ascertaining spinal on this theoretical premise, Palmer sought to de- problems and manipulating vertebrae as an intended means velop a procedure for adjusting misaligned ver- of cure.FN4 However, over the ensuing decades, Texas tebrae as a means of improving health and, chiropractors evidently came to engage in identifying and eventually, founded this country's first chiro- treating a wider range of musculoskeletal problems with a practic school, the Palmer School of Cure in wider range of procedures or methods. In 1989, the Leg- Davenport, Iowa, currently known as the Palmer islature saw fit to take account of these developments College of Chiropractic. See Palmer College of through amendments to the statutory definition of chiro- Chiropractic, http:// www. palmer. edu/ History practic practice that expanded the focus of chiropractic (last visited Mar. 13, 2011). While today's chiro- beyond the spine to the more general “biomechanics” of practors typically recognize the importance of the “musculoskeletal system,” and added somewhat other factors in disease causation, they still ma- broader language regarding the treatments or methods nipulate spines to correct musculoskeletal prob- chiropractors could perform. See Act of May 12, 1989, lems. See Wardwell at 2. 71st Leg., R.S., ch. 227, §§ 1–3, 1989 Tex. Gen. Laws 1005, 1005–06. FN5 Although procedures entailing “sur- gery, drugs that require a prescription to be dispensed, FN4. The 1949 enactment defined the practice of x-ray therapy, or therapy that exposes the body to radio- chiropractic as follows: active material” were expressly excluded from the prac- tice, chiropractors were now permitted to use (1) “objec- Any person shall be regarded as practicing tive or subjective means to analyze, examine, or evaluate chiropractic within the meaning of this Act who
Appendix F to Brief of Appellant Page 5 of 32 shall employ objective or subjective means lyze, examine, or evaluate the biomechanical without the use of drugs, surgery, X-ray therapy condition of the spine and musculoskeletal or radium therapy, for the purpose of ascer- system of the human body; taining the alignment of the vertebrae of the human spine, and the practice of adjusting the (2) uses adjustment, manipulation, or other vertebrae to correct any subluxation or misa- procedures in order to improve subluxation or lignment thereof, and charge therefor, directly the biomechanics of the musculoskeletal sys- or indirectly, money or other compensation; or tem; or who shall hold himself out to the public as a chiropractor or shall use either the term “chi- (3) holds himself out to the public as a chiro- ropractor,” “chiropractic,” “doctor of chiro- practor or uses the term “chiropractor,” “chi- practic,” or any derivative of any of the above ropractic,” “doctor of chiropractic,” “D.C.,” or in connection with his name. any derivative of those terms in connection with his name. See Act of Apr. 21, 1949, 51st Leg., R.S., ch. 94, § 1, 1949 Tex. Gen. Laws 160, 160–61. The Act of May 12, 1989, 71st Leg., R.S., ch. 227, § Texas Legislature first enacted a statute recog- 1, 1989 Tex. Gen. Laws 1005. Excluded from nizing chiropractic and exempting it from the the scope of chiropractic practice, however, laws governing the practice of medicine in were the provision of “surgery, drugs that re- 1943. See Act of May 5, 1943, 48th Leg., R.S., quire a prescription to be dispensed, x-ray ch. 359, §§ 1–17, 1943 Tex. Gen. Laws 627. therapy, or therapy that exposes the body to The 1943 statute authorized chiropractors to radioactive material.” See id. § 3, 1989 Tex. treat the “spinal column, and its connecting Gen. Laws at 1006. Amendment proponents tissues.” Id. § 3, 1943 Tex. Gen. Laws at evidently touted the changes as necessary to 628–29. The Court of Criminal Appeals later modernize the “outdated” statutory definition invalidated this law as an unconstitutional to “reflect the education, training, and clinical “preference” to chiropractic, reasoning that expertise of chiropractors today” and to ac- “the spinal column and its connecting tissues count for a study showing that “86.8% of the embraces the entire body and all organs there- conditions treated by chiropractors can be of.” See Ex parte Halsted, 147 Tex.Crim. 453, classified as musculoskeletal problems” rather 182 S.W.2d 479, 486 (1944) (emphasis added). than spinal misalignment. See Senate Comm. The current statutory regime defining and reg- on Health & Human Servs., Bill Analysis, Tex. ulating chiropractic traces back to the 1949 S.B. 169, 71st Leg., R.S. (1989). enactment.
In the aftermath of the 1989 amendments, a number of FN5. The amended definition provided: controversies arose concerning whether particular exami- nation or treatment procedures exceeded the statutory A person shall be regarded as practicing chi- scope of chiropractic and, relatedly, the extent to which ropractic within the meaning of this Act if the TBCE, by permitting chiropractors to perform them, was person: abetting unlawful encroachments upon the practice of medicine. Areas of dispute included the extent to which (1) uses objective or subjective means to ana- chiropractors could perform procedures entailing the in-
Appendix F to Brief of Appellant Page 6 of 32 sertion of needles into the human body, such as acupunc- under anesthesia.” See id. § 19, 1995 Tex. Gen. Laws at ture and a procedure known as needle electromyography, 4803. These provisions were later codified in sections or “needle EMG.” Simply described, needle EMG entails 201.002 and 201.154 of the occupations code. See Tex. the insertion of needle electrodes into a patient's muscle Occ.Code Ann. §§ 201.002(a)(3) (“ ‘Incisive or surgical and transmitting a small electric current as a means of procedure’ includes making an incision into any tissue, evaluating nerve conductivity. Another subject of contro- cavity or organ by any person or implement. The term does versy was a treatment method known as manipulation not include the use of a needle for the purpose of drawing under anesthesia, or “MUA.” As the term suggests, MUA blood for diagnostic testing.”), .002(c) ( “The practice of entails a chiropractor's manipulation of the musculoskele- chiropractic does not include ... incisive or surgical pro- tal system while the patient is under general anesthesia so cedures.”), .154 (“Notwithstanding any other provision of as to facilitate a greater range of motion than if the patient this chapter, the [TBCE] may not adopt a process to certify was feeling pain or resisting.FN6 chiropractors to perform manipulation under anesthe- sia.”).FN7 FN6. The anesthesia itself is evidently adminis- tered by a qualified health-care professional other FN7. TMA and TMB, in particular, place great than a chiropractor, including an anesthesiologist, emphasis on the legislative history of these a physician. amendments. Although versions of the changes had appeared in earlier bills considered by the Against this backdrop, in 1995 the Legislature made Seventy–Fourth Legislature, the amendments' several important amendments to the statutory scope of immediate origins were a House floor amendment chiropractic. These included specifying that the treatment that Representative Tom Uher proposed to add to methods that defined the scope of chiropractic were a bill that had theretofore focused chiefly on rural “nonsurgical, nonincisive procedures, including but not health-care issues. Although containing the same limited to adjustment and manipulation, in order to im- limitation of treatment methods to “nonsurgical, prove the subluxation complex or the biomechanics of the nonincisive procedures” and exclusion of “inci- musculoskeletal system,” and likewise excluding “incisive sive or surgical procedures” that ultimately ap- or surgical procedures” from the scope of chiropractic peared in the final, enacted version, Uher's practice. See Act of May 29, 1995, 74th Leg., R.S., ch. 965, amendment defined “incisive procedure” to “in- §§ 13, 18, 1995 Tex. Gen. Laws 4789, 4802–03 (current clude[ ] entry into any tissue, cavity, or organ by version at Tex. Occ.Code Ann. § 201.002(b)–(c)). The any person or implement,” subject to some broad Legislature defined or described “incisive or surgical exceptions: procedures” as follows: [“incisive procedure”] does not include exam- In this act, “incisive or surgical procedure” includes but ination of the ear, nose, and throat, drawing is not limited to making an incision into any tissue, cav- blood for the purposes of diagnostic testing, or ity or organ by any person or implement. It does not in- acupuncture or needle EMG if the chiropractor clude the use of a needle for the purpose of drawing is certified to perform acupuncture or needle blood for diagnostic testing. EMG under ... this Act.
See id. § 18, 1995 Tex. Gen. Laws at 4803. Addition- Floor Amendment No. 9 to Tex. S.B. 673, at 2, ally, the Legislature prohibited TBCE from “adopt[ing] a 74th Leg., R.S. (May 22, 1995). Additionally, process to certify chiropractors to perform manipulation as the exceptions contemplated, other provi- sions of Uher's proposed amendment would
Appendix F to Brief of Appellant Page 7 of 32 have required TBCE to adopt procedures and needle EMG, acupuncture, or MUA beyond the scope of standards for “certifying” chiropractors to chiropractic practice.FN8 Meanwhile, the Attorney General perform needle EMG and acupuncture. See id. issued opinions reasoning that, to the contrary, any pro- at 6. The amendment imposed a similar man- cedure involving the insertion of a needle into the body date requiring TBCE to adopt procedures to (other than the excepted blood draw for diagnostic use) certify chiropractors to perform MUA. See id. was “incisive” and thus excluded it from the scope of at 5. chiropractic.FN9 Applying this reasoning, for example, the Attorney General opined that acupuncture was an “inci- In response to Uher's proposed amendment, sive” procedure and thus excluded from the scope of chi- then-Representative (later Senator) Kyle Janek, ropractic. FN10 Thereafter, the Legislature amended the a physician, proposed to amend Uher's statutory definition of acupuncture, which had previously amendment to, in relevant part, (1) delete the been stated in terms of “the insertion of an acupuncture exceptions for needle EMG and acupuncture in needle,” see Act of May 30, 1993, 73d Leg., R.S., ch. 862, Uher's definition or description of “incisive” § 37, 1993 Tex. Gen. Laws 3374, 3400, to refer instead to procedures; (2) delete the mandate that TBCE “the nonsurgical, nonincisive insertion of an acupuncture adopt processes for certifying chiropractors to needle.” See Act of May 28, 1997, 75th Leg., R.S., ch. perform needle EMG and acupuncture; and (3) 1170, § 1, 1997 Tex. Gen. Laws 4418 (emphasis added) invert the mandate that TBCE “shall adopt” (current version at Tex. Occ.Code Ann. § 205.001(2)(A) processes for certifying chiropractors to per- (West Supp. 2011)); see also Tex. Att'y Gen. Op. No. form MUA into an explicit prohibition that DM–471 (1998) (concluding that the *471 1997 amend- TBCE “shall not” adopt processes to “certify” ment served to ensure that the practice of acupuncture chiropractors to perform MUA. See Floor would be within the practice of chiropractic, thereby su- Amendment No. 12 to Tex. S.B. 673, 74th perseding the prior opinion). But the broader underlying Leg., R.S. (May 22, 1995). During the debate disagreement concerning the use of needles in chiropractic on these amendments, Representative Janek remained,FN11 as did the controversy regarding whether expressed his opinion that “[t]his amendment chiropractors could perform MUA. However, due in part to would take out any ability by the chiropractors the advisory nature of the administrative pronouncements to put needles in people.” Debate on S.B. 673 and related jurisdictional and procedural limitations, the on the Floor of the House, 74th Leg., R.S. (May controversies eluded judicial resolution for several 22, 1995) (statement of Rep. Janek) (transcript years.FN12 available from Senate Staff Services). The House of Representatives ultimately adopted FN8. See Tex. Bd. of Chiropractic Exam'rs, Ac- Uher's amendment with Janek's modifications upuncture, MUA, and Needle EMG (ratified and a few additional, less sweeping changes September 11, 1997, amended May 7, 1998, and and refinements. See Floor Amendment Nos. May 1999); Tex. Bd. Chiropractic Exam'rs, RE: 9–14 to Tex. S.B. 673 (May 22–24, 1995). Scope of Practice Clarification regarding Nerve These changes, in turn, were ultimately enacted Conduction Studies (Jan. 25, 2002) (memo. to all into law, as described above. Texas chiropractic licensees).
*470 In the aftermath of these changes to the statutory FN9. See, e.g., Tex. Att'y Gen. Op. No. DM–472, scope of chiropractic, TBCE issued what it styled as in- at 3 (1998). formal “statements” or “memoranda” advising its licensees of its view that the 1995 amendments had not rendered FN10. See Tex. Att'y Gen. Op. No. DM–415, at
Appendix F to Brief of Appellant Page 8 of 32 4–6 (1996). properly before the court).
FN11. See Tex. Att'y Gen. Op. No. DM–472, at 6 The Legislature returned to chiropractic (concluding that “the use of a needle ... for any scope-of-practice issues in 2005 when TBCE came up for purpose other than the drawing of blood for di- sunset review. Although it did not address either needle agnostic purposes or the practice of acupuncture EMG or MUA through statutory amendments expressly is not within the scope of practice of a licensed mentioning either procedure, the Legislature did add a new Texas chiropractor.”). description of the “surgical procedures” that were excluded from chiropractic: FN12. See O'Neal v. Texas Bd. of Chiropractic Exam'rs, No. 03–03–00270–CV, 2004 WL “Surgical procedure” includes a procedure described in 2027787, at *3, 2004 Tex.App. LEXIS 8254, at the surgery section of the common procedure coding *9 (Tex.App.-Austin Sept. 10, 2004, no pet.) system as adopted by the Centers for Medicare and (mem. op.) (holding that suit by chiropractor Medicaid Services of the United States Department of against TBCE seeking declaration that needle Health and Human Services. EMG was within the scope of chiropractic prac- tice did not present a justiciable controversy See Act of May 27, 2005, 79th Leg., R.S., ch. 1020, § “where the ... Board indisputably agrees with the 1, 2005 Tex. Gen. Laws 3464, 3465 (codified at Tex. legal interpretation ... that [the chiropractor] Occ.Code Ann. § 201.002(a)(4)). The Legislature also seeks” and there was no more than speculation mandated that TBCE “adopt rules clarifying what activities that it would change that view; also observing that are included within the scope of the practice of chiropractic Attorney General opinions did not in themselves and what activities are outside of that scope,” including present a justiciable controversy); Continental “clearly specify[ing] the procedures that chiropractors may Cas. Co. v. Texas Bd. of Chiropractic Exam'rs, perform” and “any equipment and the use of that equip- No. 03–00–00513–CV, 2001 WL 359632, at *1, ment that is prohibited.” See id. § 8, 2005 Tex. Gen. Laws 2001 Tex.App. LEXIS 2336, at *2 at 3466 (codified at Tex. Occ.Code Ann. §§ (Tex.App.-Austin Apr. 12, 2001, no pet.) (mem. 201.1525–.1526). Among other implications, this op., not designated for publication) (holding court rule-making mandate ensured that TBCE would issue lacked jurisdiction to hear insurance company's scope-of-practice directives to its licensees in a form that claim that TBCE improperly authorized chiro- opponents could test in court to determine whether they practors to perform MUA and needle EMG be- exceeded the underlying statutory scope of chiropractic. cause there was no justiciable controversy where See Tex. Gov't Code Ann. § 2001.038 (West 2008) (cre- company was not a licensee or otherwise subject ating cause of action for declaratory relief regarding “the to TBCE); see also Texas Mut. Ins. Co. v. Stelzer, validity or applicability of a rule” where “it is alleged that No. 03–06–00675–CV, 2010 WL 142501, at the rule or its threatened *472 application interferes with or *1–3, 2010 Tex.App. LEXIS 236, *2–10 impairs, or threatens to interfere with or impair, a legal (Tex.App.-Austin 2010, no pet.) (mem. op.) (re- right or privilege of the plaintiff”); see also Texas Ortho- jecting carrier's challenge to workers' compensa- paedic Ass'n v. Texas State Bd. of Podiatric Med. Exam'rs, tion division order requiring reimbursement of 254 S.W.3d 714, 718 n. 1 (Tex.App.-Austin 2008, pet. chiropractor for needle-EMG procedure; holding denied) (recognizing physician's standing to challenge that division properly deferred to TBCE inter- validity of podiatric board rule that included ankle within pretation of statutory scope of practice and that the definition of “foot” and ultimately holding that rule underlying scope-of-practice dispute was not exceeded board's rule-making authority).FN13
Appendix F to Brief of Appellant Page 9 of 32 This former version of the rule was the subject of FN13. In fact, one of the Sunset recommendations the interlocutory jurisdictional appeal we ad- preceding the 2005 amendments had criticized dressed in Texas Board of Chiropractic Examin- TBCE's “practice of issuing Board opinions” to ers v. Texas Medical Association, 270 S.W.3d define the scope of chiropractic and recom- 777, 780–83 (Tex.App.-Austin 2008, no pet.). mended that the agency be required to promulgate During the pendency of the litigation, TBCE administrative rules instead. See Sunset Advisory amended the text of the rule to include an explicit Comm'n, Sunset Comm'n Decisions: Tex. Bd. of authorization for chiropractors to perform MUA, Chiropractic Exam'rs (May 2004) at 3; Sunset discussed above. See 34 Tex. Reg. 4331 (2009) Advisory Comm'n: Tex. Bd. of Chiropractic (codified at 22 Tex. Admin. Code § 75.17) (pro- Exam'rs, Staff Report, at 5 (Feb. 2004). posed Jan. 2, 2009).
In response to this rule-making mandate, TBCE FN15. TMA also named TBCE's executive di- promulgated a “Scope of Practice” rule authorizing chiro- rector as a defendant, and he appears in his offi- practors to perform both needle EMG and MUA. See 22 cial capacity as a party to this appeal. Because any Tex. Admin. Code § 75.17.FN14 Invoking section 2001.038 distinction between the two parties is not material of the Administrative Procedures Act, TMA sued TBCE to this appeal, for convenience we will use FN15 seeking declarations that various provisions of the “TBCE” hereinafter to refer both to the agency scope-of-practice rule that permitted needle EMG and itself and the agency and executive director col- MUA were invalid because they exceeded the statutory lectively. scope of chiropractic and, therefore, constituted the un- lawful practice of medicine.FN16 TMA also asserted similar FN16. TMA also sought a declaration that TBCE claims concerning a provision of the rule permitting chi- had failed to provide an adequate “reasoned jus- ropractors to “diagnose” certain conditions. In the alterna- tification” for the challenged rules, as required by tive, if any of the challenged rule provisions proved to be the Administrative Procedure Act. These claims within TBCE's statutory authority, TMA sought declara- are not at issue on appeal. tions that the underlying statutes granted chiropractors a “preference” over physicians in practicing “medicine” in On petition of TMA, the TMB was joined in the suit as violation of article XVI, section 31 of the Texas Constitu- a plaintiff. After TBCE was unsuccessful in challenging tion. TMA further sought injunctive relief barring en- TMA's standing, TCA intervened as a defendant and also forcement of the challenged rules or, alternatively, statutes. asserted its own affirmative claims for declarations that each of the challenged rules were within the statutory FN14. When it initially promulgated the scope of chiropractic. In the alternative, TCA sought a scope-of-practice rule in 2006, TBCE purported declaration that a statutory definition of “surgical” added to leave MUA unaddressed pending further by the Legislature in the 2005 Sunset legislation was un- rule-making while also emphasizing in the rule's constitutional on grounds that included *473 improper preamble that MUA “ha[d] been part of the prac- delegation of legislative authority to a private entity. See tice of chiropractic in Texas for more than 25 Texas Boll Weevil Eradication Found., Inc. v. Lewellen, years” and that the agency was leaving this “sta- 952 S.W.2d 454, 465–75 (Tex.1997). tus quo” undisturbed. See 31 Tex. Reg. 4613 (2006) (proposed Dec. 16, 2005), amended in TMA, joined by TMB (hereafter, the “Physician Par- part by 34 Tex. Reg. 4331 (2009) (proposed Jan. ties”), sought traditional partial summary judgment on 2, 2009) (former 22 Tex. Admin. Code § 75.17).
Appendix F to Brief of Appellant Page 10 of 32 their claims seeking to invalidate, as beyond the statutory In light of TCA's non-suit, and concluding that the scope of chiropractic, TBCE's rules authorizing chiro- Physician Parties' “constitutional challenges” had been practors to perform needle EMG and MUA. The district rendered “moot” by its summary-judgment rulings, the court granted the motion as to these claims. district court rendered a final judgment incorporating its summary-judgment rulings and declaring the aforemen- In the same motion, the Physician Parties similarly tioned rule provisions concerning needle EMG, MUA, and sought summary judgment invalidating TBCE's rule per- “diagnoses” “invalid and void.” Both of the Chiropractor mitting chiropractors to make “diagnoses” as beyond the Parties filed notices of appeal. statutory scope of chiropractic. TBCE and TCA (hereafter the “Chiropractor Parties”) countered with a cross-motion ANALYSIS for partial summary judgment dismissing the Physician In five issues on appeal, TCA challenges the district Parties' claims challenging whether TBCE's rules permit- court's judgment invalidating TBCE rules regarding needle ting “diagnoses” were within the statutory scope of chiro- EMG, MUA, and “diagnoses.” TBCE brings three issues practic.FN17 The district court denied the Physician Parties' challenging only the portions of the judgment invalidating motion and granted the Chiropractor Parties' motion in part the needle-EMG and MUA rules. “as to the Chiropractic Board's use of the word ‘diagnosis' in its rule.” “However,” the court emphasized, it “re- Standard of review serve[d] judgment regarding ‘diagnosis' as it related to The challenged portions of the district court's judg- scope of practice.” (Emphasis in original.) Following a ment are predicated on its rulings granting or denying second round of summary-judgment filings, however, the motions for partial summary judgment. We review the district court granted summary judgment for the Physician district court's summary judgments de novo. Valence Op- Parties as to a narrower portion of the “diagnosis” rule than erating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); they had challenged previously. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Summary judgment is proper when FN17. The district court's final judgment also there are no disputed issues of material fact and the movant references cross-motions purportedly filed by the is entitled to judgment as a matter *474 of law. Tex.R. Civ. Chiropractor Parties concerning the needle-EMG P. 166a(c). When reviewing a summary judgment, we take and MUA issues. However, no such motions ap- as true all evidence favorable to the non-movant, and we pear in the appellate record, nor does the docket indulge every reasonable inference and resolve any doubts sheet reflect that any such motions were ever in the non-movant's favor. Valence Operating Co., 164 filed. S.W.3d at 661; Knott, 128 S.W.3d at 215. When parties file cross-motions for summary judgment on overlapping is- In the meantime, the Attorney General had intervened sues and the trial court grants one motion and denies the on behalf of the State of Texas to defend against each side's other, we review the summary-judgment evidence sup- alternative constitutional claims, see Tex. Civ. Prac. & porting both motions and determine all questions presented Rem.Code Ann. § 37.006(b) (West 2008), and the Attor- and preserved. See FM Props. Operating Co. v. City of ney General and various other parties had filed pleadings Austin, 22 S.W.3d 868, 872 (Tex.2000). We “should ren- attacking those claims. After the district court indicated its der the judgment that the trial court should have rendered.” intended disposition of the second round of partial sum- Id. mary-judgment motions, but before it signed an order, TCA non-suited its affirmative claims for relief. In this case, the parties' respective entitlements to summary judgment turn principally on whether the rules in question were within TBCE's statutory authority to adopt.
Appendix F to Brief of Appellant Page 11 of 32 To resolve such questions, we consider whether each rule: “title,” id. § 311.023(1)-(5), (7) (West 2005). However, (1) contravened specific statutory language; (2) ran counter only when the statutory text is ambiguous—i.e., suscepti- to the general objectives of the underlying statute, chapter ble to more than one reasonable interpretation—“do we 201 of the occupations code; or (3) imposed additional ‘resort to rules of construction or extrinsic aids.’ ” See burdens, conditions, or restrictions in excess of or incon- Entergy Gulf States, Inc., 282 S.W.3d at 437 (quoting In re sistent with the relevant statutory provisions. See City of Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007)). Garland v. Public Util. Comm'n, 165 S.W.3d 814, 819 (Tex.App.-Austin 2005, pet. denied). As the Chiropractor Parties emphasize, in certain circumstances courts may be required to defer to an ad- Statutory construction presents a question of law that ministrative agency's construction of its own statutory we review de novo. State v. Shumake, 199 S.W.3d 279, 284 authority. See *475Railroad Comm'n v. Texas Citizens for (Tex.2006). Our primary objective in statutory construc- a Safe Future & Clean Water, 336 S.W.3d 619, 624–25 tion is to give effect to the Legislature's intent. See id. We (Tex.2011). But these principles apply only where the seek that intent “first and foremost” in the statutory text. statute in question is ambiguous and only to the extent that Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 the agency's interpretation is one of those reasonable in- (Tex.2006). “Where text is clear, text is determinative of terpretations. See id. “Consequently, to determine whether that intent.” Entergy Gulf States, Inc. v. Summers, 282 this rule of deference applies, a reviewing court must first S.W.3d 433, 437 (Tex.2009) (op. on reh'g) (citing Shu- make a threshold determination that the statute is ambig- make, 199 S.W.3d at 284; Alex Sheshunoff Mgmt. Servs. v. uous and the agency's construction is reasona- Johnson, 209 S.W.3d 644, 651–52 (Tex.2006)). We use ble—questions that turn on statutory construction and are definitions prescribed by the Legislature and any technical reviewed de novo.” City of Waco v. Texas Comm'n on or particular meaning the words have acquired; otherwise Envtl. Quality, 346 S.W.3d 781, 800 (Tex.App.-Austin we construe the words according to their plain and com- 2011, pet. filed) (citing Texas Citizens, 336 S.W.3d at mon meaning unless a contrary intent is apparent from the 625). Additionally, this Court has recognized that these context. City of Rockwall v. Hughes, 246 S.W.3d 621, principles of deference may be subject to further qualifi- 625–26 (Tex.2008). We also presume that the Legislature cations where the subject matter is not within any spe- was aware of the background law and acted with reference cialized expertise of the agency, see id. (citing Texas Cit- to it. See Acker v. Texas Water Comm'n, 790 S.W.2d 299, izens, 336 S.W.3d at 630), and where “a nontechnical 301 (Tex.1990). We further presume that the Legislature question of law” is involved, see Rogers v. Texas Bd. of selected statutory words, phrases, and expressions delib- Architectural Exam'rs, –––S.W.3d ––––, ––––, 2011 WL erately and purposefully. See Texas Lottery Comm'n v. 3371543 (Tex.App.-Austin 2011, no pet. h.) (citing First State Bank of DeQueen, 325 S.W.3d 628, 635 Rylander v. Fisher Controls Int'l, Inc., 45 S.W.3d 291, 302 (Tex.2010); Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.-Austin 2001, no pet.)). (Tex.App.-Austin 2010, no pet.). Our analysis of the stat- utory text may also be informed by the presumptions that To the extent our analysis turns on administrative “the entire statute is intended to be effective” and that “a construction of the rules themselves, we defer to an just and reasonable result is intended,” see Tex. Gov't Code agency's interpretation of its own rules unless that inter- Ann. § 311.021(2), (3) (West 2005), and consideration of pretation is plainly erroneous or inconsistent with the text such matters as “the object sought to be attained,” “cir- of the rule or underlying statute. See Public Util. Comm'n cumstances under which the statute was enacted,” legisla- v. Gulf States Utils. Co., 809 S.W.2d 201, 207 (Tex.1991); tive history, “common law or former statutory provisions, Tennessee Gas Pipeline Co. v. Rylander, 80 S.W.3d 200, including laws on the same or similar subjects,” “conse- 203 (Tex.App.-Austin 2002, pet. denied). We construe quences of a particular construction,” and the enactment's administrative rules in the same manner as statutes because
Appendix F to Brief of Appellant Page 12 of 32 they have the force and effect of statutes. Rodriguez v. under standards set *476 forth by the [TBCE] but may Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999). not be used for procedures that are incisive or surgical.
Needle EMG (A) The use of a needle for a procedure is incisive if the TCA's second issue and TBCE's first two issues procedure results in the removal of tissue other than for challenge the district court's summary judgment invali- the purpose of drawing blood. dating rules relating to needle EMG. (B) The use of a needle for a procedure is surgical if the As previously noted, the statutory scope of chiroprac- procedure is listed in the surgical section of the CPT tic practice includes “using objective or subjective means Codebook. to analyze, examine, or evaluate the biomechanical condi- tion of the spine and musculoskeletal system of the human Id. § 75.17(a)(3). The “CPT Codebook” is defined body,” see Tex. Occ.Code Ann. § 201.002(b)(1); see also elsewhere in the rule as “the American Medical Associa- 22 Tex. Admin. Code § 75.17(a)(1)(A) (tracking the same tion's annual Current Procedural Terminology Codebook language in TBCE's scope-of-practice rule), but excludes (2004) .... adopted by the Centers for Medicare and Med- any “incisive or surgical procedure,” see Tex. Occ.Code icaid Services of the United States Department of Health Ann. § 201.002(c)(1); see also 22 Tex. Admin. Code § and Human Services as Level I of the common procedure 75.17(a)(2)(A), (c)(4), (d)(2), (e)(3) (tracking same exclu- coding system.” See id. § 75.17(b)(2). sion in scope-of-practice rule), a term that: Applying this standard, TBCE concluded that needle includes making an incision into any tissue, cavity, or EMG was neither an “incisive” nor “surgical” procedure organ by any person or implement.... and, thus, was not excluded from the scope of chiropractic practice. Premised on that conclusion, TBCE promulgated [but] does not include the use of a needle for the purpose two additional rule provisions addressing needle EMG of drawing blood for diagnostic testing. specifically. The first, paragraph (c)(2)(D), listed “elec- tro-diagnostic testing” among several examples of testing Tex. Occ.Code Ann. § 201.002(a)(3) (formatting al- and measurement procedures that chiropractic licensees tered for emphasis). were permitted to use in evaluating or examining patients. See id. § 75.17(c)(2)(D). In the second provision, para- graph (c)(3)(A), TBCE imposed certification and supervi- In its scope-of-practice rule, TBCE construed and de- sion requirements on any licensees who administered fined the term “incision”—i.e., that which characterizes an “electro-neuro diagnostic testing” that varied according to “incisive procedure”—as “[a] cut or a surgical wound; whether the testing was “surface (non-needle)” or involved also, a division of the soft parts made with a knife or hot the use of needles. See id. § 75.17(c)(3)(A). The import or laser.” 22 Tex. Admin. Code § 75.17(b)(3). TBCE further effect of paragraphs (c)(2)(D) and (c)(3)(A), as the parties determined that the insertion of a needle into the human agree, was that chiropractors with specified training and body might or might not “cut” the body or be “incisive” in certification could utilize needle EMG in evaluating or the sense of the exclusion, or be “surgical,” and promul- examining patients. gated a standard, found in subparagraph (a)(3) of the rule, for distinguishing “incisive” or “surgical” needle inser- tions from non-incisive and non-surgical ones: In their live petition and summary-judgment motions, the Physician Parties challenged the validity of the two rule provisions specifically addressing needle (3) Needles may be used in the practice of chiropractic
Appendix F to Brief of Appellant Page 13 of 32 EMG—75.17(c)(2)(D) and (c)(3)(A)—plus the general “surgical” procedures from the practice of chiropractic, standard regarding use of needles—75.17(a)(3)—based on changed the definition of acupuncture to refer to “the the assertions that each rule permitted chiropractors to nonsurgical, nonincisive insertion of an acupuncture nee- perform needle EMG, and needle EMG was an “incisive” dle ... to specific areas of the human body.” See Act of May procedure excluded from the statutory scope of chiroprac- 28, 1997, § 1, 1997 Tex. Gen. Laws at 4418 (codified at tic. The district court granted the motions and rendered Tex. Occ.Code Ann. § 205.001(2)(A)); Tex. Att'y Gen. judgment declaring that “22 Tex. Admin. Code §§ Op. No. DM–471 (1998) (observing that 1997 amendment 75.17(a)(3), 75.17(c)(2)(D) and 75.17(c)(3)(A), concern- responded to prior opinion concluding that acupuncture ing needle electromyography, are ... invalid and void.” The was an “incisive” procedure outside the scope of chiro- Physician Parties did not challenge, and the district court practic). By expressly contemplating, in a related statute, did not invalidate, TBCE's definition of “incision” as a that the insertion of a needle into the human body may be “cut,” “surgical wound,” or “division of the soft parts.” See “nonincisive” (not to mention “nonsurgical”), the Legis- id. § 75.17(b)(3). lature, in the Chiropractor Parties' view, confirmed that needle insertions may either be “incisive” or “nonincisive” In holding that the three rules improperly permitted within the meaning of the statutory exclusion from chiro- chiropractors to perform an “incisive” procedure, the dis- practic. And it follows, they add, that the mere fact a needle trict court, the Chiropractor Parties assert, misconstrued insertion creates some degree of hole or separation of unambiguous statutory language or at least erred in failing tissue along the length of the inserted instrument, as all to give required deference to TBCE's reasonable con- needle insertions will, cannot in itself be the criterion that struction of ambiguous language. They concede that the distinguishes an “incisive” needle insertion from a “non- last sentence of occupations code section incisive” one within the Legislature's contemplation. 201.002(a)(3)—“[an incisive or surgical procedure] does not include the use of a needle for the purpose of drawing The Chiropractor Parties add that TBCE's standard for blood for diagnostic testing”—negatively implies that the distinguishing “incisive” from “nonincisive” needle use, use of a needle to draw blood for diagnostic testing would which focuses on whether the procedure results in the otherwise have been considered an “incisive” procedure in removal of tissue, see 22 Tex. Admin. Code § 75.17(a)(3), the view of the Legislature, as otherwise the exception is consistent with this statutory framework. They reason created in that sentence would have amounted to a redun- that (1) if using needles for blood draws for diagnostic use dant nullity. See DeQueen, 325 S.W.3d at 638 (“Courts ‘do is an “incisive” procedure (again, the negative implication not lightly presume that the Legislature may have done a of the Legislature's exception of blood draws from “inci- useless act.’ ” (quoting *477Liberty Mut. Ins. Co. v. Gar- sive or surgical” procedures, see Tex. Occ.Code Ann. § rison Contractors, Inc., 966 S.W.2d 482, 485 (Tex.1998)); 201.002(a)(3)), (2) but needle insertion in itself cannot be Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex.2005) (“We what makes the procedure “incisive” (as implied by the must avoid, when possible, treating statutory language as statutory definition of acupuncture as entailing “noninci- surplusage.”). But the fact that this procedure involving sive” needle insertion into the body, see Tex. Occ.Code use of a needle would be considered “incisive,” the Chi- Ann. § 205.001(2)(A)), (3) then the “incisive” character of ropractor Parties insist, does not imply that every proce- a needle blood draw must relate to the fact that it results in dure involving the insertion of a needle into the human the separation and removal of the blood itself or, more body necessarily is. They urge that any such construction generally, tissue, as blood is considered to be a form of or inference ignores the Legislature's 1997 amendments to connective tissue. That distinguishing feature, the Chiro- the statutory definition of acupuncture. In those amend- practor Parties assert, is properly reflected in TBCE's ments, as previously explained, the Legislature, with evi- standard for determining “incisive” needle use. In striking dent reference to its prior exclusion of “incisive” and down that standard, they argue, the district court over-
Appendix F to Brief of Appellant Page 14 of 32 looked the unambiguous text of the relevant statutes, or at Parties remind us that statutory construction turns not on least failed to give required deference to TBCE's reasona- the statements of individual legislators but on the text of ble construction of ambiguous text. And the same error, the statutes the Legislature collectively enacts. See Ojo v. they add, led the district court to improperly strike down Farmers Grp., Inc., 356 S.W.3d 421, 435 (Tex.2011) the two rules permitting needle EMG, as it is undisputed (noting that courts should apply “text-centric model” when that the procedure does not entail the removal of tissue. construing statutes, using extrinsic aids such as legislative history only when text is not clear). And that statutory text, The Physician Parties' core contention in response, as they urge, stops well short of evidencing intent to outlaw it was in their summary-judgment motions, is that occu- needle EMG by chiropractors, especially considering that pations code section 201.002(a)(3)'s express exception for the procedure has been performed by Texas chiropractors needle blood draws for diagnostic purposes from the “in- since the early 1990s and been a frequent concern of the cisive or surgical” procedures excluded from chiropractic medical community for much of that time. If the Legisla- reflects the Legislature's intent that all other procedures ture had truly meant to prohibit chiropractors from per- involving needle usage, including *478 needle EMG, be forming needle EMG, they suggest, it presumably would excluded from the scope of chiropractic practice. Such a have said so more clearly and directly instead of con- construction, they reason, is necessary both to give effect demning “incisive” procedures and delegating power to to the exclusion, see Liberty Mut. Ins. Co. v. American TBCE to promulgate scope-of-practice rules. Emp'rs Ins. Co., 556 S.W.2d 242, 245 (Tex.1977) (in context of construing a contract, observing “the purpose of As for the implications of the acupuncture statute's an exclusion is to take something out ... that would other- reference to “nonsurgical, nonincisive” needle insertions, wise have been included in it”), and by the canon of stat- the Physician Parties first suggest that this language is utory construction known as expressio unius est exclusio simply irrelevant because chiropractors acting within the alterius—literally “the specific mention of one is the ex- scope of their license are exempted from the acupuncture clusion of the other”—under which we would presume that statutes. FN18 They similarly question the premise of the the Legislature's explicit mention or inclusion of one thing Chiropractor Parties (and the Attorney General) FN19 that signals its intention to exclude the other or the alternative the definition of acupuncture as “nonsurgical” and “non- thing. See Johnson v. Second Injury Fund, 688 S.W.2d incisive” under the statutes regulating its practice neces- 107, 108–09 (Tex.1985) (citing Bryan v. Sundberg, 5 Tex. sarily resolves whether or not it is “incisive” under the 418, 422–23 (Tex.1849)). They similarly rely on the more meaning of the chiropractic statutes. However, the Physi- general principle that courts must assume that the Legis- cian Parties have also relied on the narrower point (so to lature chose its words carefully and deliberately, and in- speak) that the types of needles used in needle EMG have cluded or excluded particular words purposefully. See, physical*479 features that materially distinguish them e.g., DeQueen, 325 S.W.3d at 635; USA Waste Servs. of from those used in acupuncture. Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex.App.-Austin 2004, pet. denied). FN18. See Tex. Occ.Code Ann. § 205.003 (West 2004) (government code chapter 205, the chapter In further support, the Physician Parties emphasize the regulating acupuncture, “does not apply to a legislative history of the 1995 amendments that added the health care professional licensed under another exclusion and description of “incisive or surgical proce- statute and acting within the scope of the li- dures.” In their view, this history confirms the Legislature's cense”). intent to forbid chiropractors from performing needle EMG and any other procedure entailing the insertion of FN19. See Tex. Att'y Gen. Op. No. DM–471 needles into the human body. In reply, the Chiropractor (1998); Tex. Att'y Gen. Op. No. DM–472 (1998).
Appendix F to Brief of Appellant Page 15 of 32 Ltd. v. Moreno, 201 S.W.3d 686, 689 (Tex.2006) In support of their summary-judgment motion, TMA (holding that bare legal conclusion is not com- presented the affidavit of Dr. Sara G. Austin, a physician, petent summary-judgment evidence); see also who compared the characteristics of acupuncture needles City of San Antonio v. Pollock, 284 S.W.3d 809, versus those used in needle EMG. Attached to her affidavit 816 (Tex.2009) (observing that unsupported legal were photographs comparing what she averred were “a conclusions are not competent evidence and may standard needle used in performing acupuncture” along- not support a judgment even in the absence of an side “two of the types of needles I use in performing objection). EMG.” The photographs reflected that the two nee- dle-EMG needles were longer and somewhat thicker than The Physician Parties portray this summary-judgment the acupuncture needle, with one of the needle-EMG nee- evidence as establishing conclusively that needle-EMG dles appearing to extend four or five times the length of the needles characteristically have a beveled or cutting edge. acupuncture needle.FN20 Austin further testified that the Consequently, they reason, the insertion of such a needle tips of the types of needles used in needle EMG “typically into the human body effects a “cut” or “incision” and, thus, are beveled”—i.e., have an angled side or end, character- is an “incisive procedure” within the meaning of the stat- istic of a blade or cutting edge FN21—and, consequently, utory exclusion. In reply, the Chiropractor Parties empha- “incise tissue” (in the sense of cutting it like a blade) when size Dr. Austin's deposition testimony, which they pre- they are inserted during the EMG examination.FN22 She did sented with their summary-judgment response. During her not, however, speak directly to the types of tips found on deposition, Austin acknowledged that while she used acupuncture needles. needle-EMG needles that have a beveled, blade-like edge, some other practitioners performing the procedure instead FN20. The photographic depictions show the used needles having a tapered or blunt edge. acupuncture needle as approximately three-quarters to one inch long, one of the nee- [1] Our analysis of the parties' competing contentions dle-EMG needles appears to be roughly begins, in the first instance, with a threshold question of one-and-a-half inches long, and the remaining whether the Legislature intended the term “incisive” pro- needle-EMG needle is approximately four or five cedure as used in the statutory exclusion to be afforded its inches long. However, Austin indicated that while ordinary meaning or a somewhat narrower technical the photographs accurately depicted the needles' meaning. See City of Rockwall, 246 S.W.3d at 625–26. comparative sizes, shapes, and configurations, the Especially in the context of health care, “incisive” is used “photocopying process” had created some dif- to refer to the act of cutting, usually tissue. See Stedman's ferences from their actual sizes. Medical Dictionary 700 (5th Unabridged Lawyers' ed. 1982) (defining “incisive” as “cutting; having the power to FN21. Austin also referenced an attached magni- cut”); Dorland's Illustrated Medical Dictionary 940 (31st fied image of a needle tip showing such an edge. ed. 2007) (defining “incisive” as “having the power or quality of cutting,” and listing under its heading for “inci- sion” various types of *480 medical tissue incisions). By FN22. Austin did not purport to opine as to contrast, the ordinary meaning of “incisive” embraces not whether the needle would be “incisive” in the only the concept of cutting, but also “piercing” (“run[ning] sense that term is used in the statutory exclusion. into or through as a pointed instrument ... does, stab [bing] To the extent her testimony might be so con- ...[,] mak[ing] a hole in or through”) and “penetrating” strued, we note that the testimony would amount (“pass[ing] into or through”).FN23 A needle insertion into to an incompetent legal conclusion. See LMB, the human body would quite obviously satisfy the ordinary
Appendix F to Brief of Appellant Page 16 of 32 meaning of “incisive,” as such a procedure would plainly its own regulation, we cannot defer to an administrative “penetrate” tissue, if not also “pierce” it. But it is a closer interpretation that is ‘plainly erroneous or inconsistent with question whether a needle insertion likewise “cuts” tissue the regulation.’ ” (quoting Gulf State Utils. Co., 809 and meets the narrower, technical definition. S.W.2d at 207)).
FN23. See Webster's Third New Int'l Dictionary Here the summary-judgment evidence becomes rele- 1142 (defining “incisive” as “having a cutting vant to our analysis. Although the summary-judgment edge or a piercing point”), 1670 (defining “pene- evidence falls short of establishing conclusively that all trate”), 1712 (defining “pierce”) (2002); Ameri- needle-EMG needles have a beveled, blade-like edge, Dr. can Heritage College Dictionary 687 (defining Austin's testimony remains undisputed that at least some of “incisive” as penetrating), 1010 (defining “pene- the types of needles used by practitioners in performing trate” as “to enter or force a way into; pierce”), that procedure do have that feature. And the very purpose 1035 (defining “pierce” as “to cut or pass through of having such an edge on a needle, as Austin further ex- with or as if with a sharp instrument; stab or plained, is to make the needle cut or slice through tissue, penetrate”) (2000). like a blade or knife. This evidence conclusively estab- lishes that at least some types of needles used in needle In this case, our choice between the ordinary and EMG “cut” into tissue under any conceivable definition of technical meaning of “incisive” has been narrowed that term. In its ordinary usage, “cut” with reference to somewhat by TBCE's rule provision, unchallenged by the something being inserted into or applied to tissue means Physician Parties and undisturbed by the district court's “to penetrate with or as if an edged instrument” or to sep- judgment, construing the related term “incision.” See Tex. arate into parts with a sharp instrument. See Webster's Occ.Code Ann. § 201.002(c) (providing that “ ‘[i]ncisive Third New Int'l Dictionary 560 (2002) (defining “cut” as or surgical procedure’ includes making an incision into any “to penetrate with or as if with an edged instrument .... tissue, cavity, or organ by any person or implement ...) *481 make an incision in .... to separate into parts”); (emphasis added). Consistent with the technical meaning American Heritage College Dictionary 341 (2000) (de- of “incisive,” TBCE has defined “incision” to mean, in fining “cut” as “to penetrate with a sharp edge; .... [t]o relevant part, “a cut or surgical wound.” See 22 Tex. Ad- separate into parts with or as if with a sharp-edged in- min. Code § 75.17(b)(3). Consequently, whether the use of strument; sever”); Random House Dictionary of the Eng- a needle is “incisive” so as to be excluded from chiro- lish Language 494 (2d ed. 1987) (defining “cut” as “to practic turns on whether such use “cuts” or makes a “sur- penetrate with or as if with a sharp-edged instrument or gical wound” “into any tissue, cavity, or organ.” And, in object ... to divide with or as if with a sharp-edged in- light of this rule definition, our analytical focus must shift strument or object”). We also observe that in the context of to determining whether the three invalidated rules permit- health care, needles with beveled edges are said to “cut” or ting needle EMG are premised on a construction and ap- have a “cutting edge,” as contrasted with differently edged plication of “cut” that is clearly erroneous or inconsistent needles that do not “cut.” Compare Dorland's at 1255 with the rule's text and underlying statutes. See (defining “cope needle” as “blunt-ended hook like needle TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, with a concealed cutting edge and snare” and “Hagedorn's 438 (Tex.2011) (“If there is vagueness, ambiguity, or room needles” as “surgical needles that are flat from side to side for policy determinations in a statute or regulation, ... we with a straight, cutting edge near the point”) with id. (de- normally defer to the agency's interpretation unless it is fining “spatula needle” as “minute needle with a flat or plainly erroneous or inconsistent with the language of the slightly curved concave surface that does not cut or statute, regulation, or rule.”); Rodriguez, 997 S.W.2d at pierce”). Further, while the question of whether acupunc- 254 (“While we defer to the Commission's interpretation of ture is within the chiropractic scope of practice is not be-
Appendix F to Brief of Appellant Page 17 of 32 fore us, nor does the summary-judgment evidence address ropractors to perform needle EMG, and 75.17(a)(3) states whether or not acupuncture needles have a beveled edge, that a procedure involving a needle is “incisive” only if it this distinction between beveled, “cutting” needles and results in removal of tissue. In so doing, these rules exceed other kinds that do not “cut” would perhaps explain how, the statutory limits of chiropractic by, at a minimum, au- in the Legislature's view, acupuncture needles would be thorizing chiropractors to perform needle EMG with bev- capable of being inserted into the body in a “nonincisive” eled-edged needles that are made to cut or incise tissue. and “nonsurgical” manner. See Tex. Occ.Code Ann. § They were, accordingly, beyond TBCE's statutory author- 205.001(2)(A). ity and void. See *482Gulf States Utils. Co., 809 S.W.2d at 207. The district court did not err in granting summary In contending that needle EMG is not a “cutting” or judgment to that effect. We overrule the Chiropractor “incisive” procedure, the Chiropractor Parties ultimately Parties' issues concerning needle EMG. rely upon an asserted distinction predicated on the size of a needle's cutting edge as compared to that of scalpels, MUA knives, or other larger cutting instruments. As they explain [2] TCA's first and TBCE's third issue challenge the their position on appeal, “[a] ‘cut’ or ‘wound’ involves an district court's summary judgment invalidating a provision appreciable separation of tissue in at least two directions, of the scope-of-practice rule, subsection 75.17(e)(2)(O), as when a knife cuts into and along the body at the same that included MUA among the treatment procedures or time,” (citing dictionary definition of “cut” as “an opening services that chiropractors are expressly authorized to made with an edged instrument”), “[b]ut a needle entry perform. See 22 Tex. Admin. Code § 75.17(e)(2)(O). As typically creates an appreciable separation of tissue in only previously noted, chiropractors are generally authorized to one direction—along the length of the needle—because the “perform[ ] nonsurgical, nonincisive procedures, including width of most needles is small.” Consequently, in their adjustment and manipulation, to improve the subluxation view, “[t]he resulting hole is not obviously a ‘cut,’ ” cre- complex or the biomechanics of the musculoskeletal sys- ating “a conceptually difficult question of interpretation: tem.” See Tex. Occ.Code Ann. § 201.002(b)(2); see also when does a needle entry qualify as a ‘cut’ or ‘wound’ (and 22 Tex. Admin. Code § 75.17(a)(1)(B) (tracking the same hence become ‘incisive’),” answered in turn by TBCE's language in TBCE's scope-of-practice rule). In their “rational” conclusion focused on tissue removal. But these summary-judgment motions, the Physician Parties sought musings about needle points ultimately miss the to invalidate the rule's authorization of MUA on two basic point—regardless of the relative size of the instrument, or grounds. First, they asserted that the authorization was whether its effects on tissue are “obvious,” it remains that contrary to the prohibition in occupations code section the insertion of a needle EMG needle having a beveled 201.154 barring TBCE from “adopt[ing] a process to cer- edge would “cut” tissue, as it is designed to do, under any tify chiropractors to perform manipulation under anesthe- definition of that term. It would, therefore, be an “incisive” sia.” See Tex. Occ.Code Ann. § 201.154. Second, the use of a needle. Consequently, the Chiropractor Parties' Physician Parties urged that MUA was a “surgical” pro- construction is contrary to the text of its own definition of cedure excluded from the scope of chiropractic. See id. § “incision” as well as the underlying statutes. See Gulf State 201.002(b)(2), (c)(1). In this regard, they relied on the Utils. Co., 809 S.W.2d at 207; City of Garland, 165 definition or description of “surgical procedure” added by S.W.3d at 819. the Legislature in 2005: “ ‘[s]urgical procedure’ includes a procedure described in the surgery section of the common It follows that the three challenged rule provisions procedure coding system as adopted by the Centers for purport to authorize chiropractors to perform “incisive” Medicare and Medicaid Services of the United States procedures that are beyond chiropractic's statutory Department of Health and Human Services.” Id. § scope—75.17(c)(2)(D) and 75.17(c)(3)(A) authorize chi- 201.002(a)(4). The district court did not specify in its
Appendix F to Brief of Appellant Page 18 of 32 summary-judgment order and judgment the ground or Department of Health and Human Services,” referenced in grounds on which it relied.FN24 The Chiropractor Parties the statute, referred to “the American Medical Associa- challenge both grounds on appeal, which they perceive to tion's annual Current Procedural Terminology Codebook be related to one another. (2004),” which “has been adopted by the Centers for Medicare and Medicaid Services ... as Level 1 of the FN24. Although both sides reference explanatory common procedure coding system.” See 22 Tex. Admin. letters from the district court that preceded its Code § 75.17(b)(2) (defining “CPT Codebook”). Simply summary-judgment order and judgment, they described, the CPT Codebook identifies several thousand acknowledge that the letters do not impact the medical procedures and services and provides a five-digit standard or scope of our appellate review. See code and brief description for each. The American Medical Cherokee Water Co. v. Gregg County Appraisal Association began the development of the CPT coding Dist., 801 S.W.2d 872, 878 (Tex.1990) (holding system in 1966 to— that trial court's letter to parties was not compe- tent evidence of the trial court's basis for judg- encourage the use of standard terms and descriptors to ment); Summers v. Fort Crockett Hotel, Ltd., 902 document procedures in the medical record; help[ ] S.W.2d 20, 25 (Tex.App.-Houston [1st Dist.] communicate accurate information on procedures and 1995, writ denied) (refusing to consider trial services to agencies concerned with insurance claims; court's letter to parties explaining reasons why provide[ ] the basis for a computer oriented system to judge would grant summary judgment). evaluate operative procedures; and contribute [ ] basic information for actuarial and statistical purposes. Regarding section 201.154's ban on TBCE “adopt[ing] a process to certify chiropractors to perform American Medical Association, CPT Coding Billing [MUA],” the Chiropractor Parties insist that a ban on & Insurance, CPT Application Process FAQ, http:// www. “certifying” chiropractors to perform MUA means only ama- assn. org/ ama/ pub/ physician- resources/ solutions- that TBCE cannot create some sort of advanced training or managing- your- practice/ coding- billing- insurance/ cpt/ “certification” process beyond licensing minimums as a cpt- process- faq/ code- becomes- cpt. page (last visited prerequisite to being allowed to perform MUA, but does Mar. 13, 2012). Currently, the CPT is used “to report not prohibit chiropractors from performing the procedure medical procedures and services under public and private itself. They add that such a ban further implies that MUA health insurance programs ... [and] is also used for ad- itself could not be banned anywhere in chapter 201, as ministrative management purposes such as claims pro- otherwise section 201.154's “certification” ban would be cessing and developing guidelines for medical care re- redundant surplusage. See Columbia Med. Ctr. of Las view.” Id. The AMA updates the CPT each year, effective Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008) January 1, to reflect new developments in medical proce- (citing general rule that courts should avoid statutory con- dures and services. See id.; Practice Mgmt. Info. Corp. v. structions that create surplusage or fail to give effect to American Med. Ass'n, 121 F.3d 516, 517 (9th Cir.1997). provisions). The summary-judgment record contains excerpts from what appears to be a CPT Codebook for 2007,FN25 one of As for the implications of occupations code the versions in effect during the course of this litigation. 201.002(a)(4)'s definition or description of “surgical pro- cedure” (i.e., the language added in 2005), TBCE in its FN25. See American Medical Association, Cur- scope-of-practice rule elaborated that “the common*483 rent Procedural Terminology (CPT®) 2007 (4th procedure coding system as adopted by the Centers for ed. 2006). Medicare and Medicaid Services of the United States
Appendix F to Brief of Appellant Page 19 of 32 In contrast to TBCE, TCA vigorously disputes that The five-digit codes in the CPT are divided into three MUA is “described in the surgery section” of the CPT categories: Category I covers medical services and pro- Codebook in any sense relevant to chiropractors. While not cedures; Category II includes codes related to performance disputing that the “surgery” section of the book has con- measurement; and Category III lists the temporary codes tained a description of MUA at all times relevant to our for new and emerging technology. Category I is further inquiry here,FN26 TCA insists that the reference “does not divided into six sections—“evaluation,” “anesthesia,” encompass chiropractic procedures.” It emphasizes a “radiology,” “pathology,” “medicine,” and, of relevance cross-reference that appears in the 2007 CPT Codebook's here, “surgery.” See American Medical Association Cur- description of MUA: rent Procedural Terminology (CPT®) 2007 xiv (4th ed. 2006). Within each section, procedures are arranged to FN26. In fact, the 1970 edition of the CPT enable the user to locate the code number readily. In the Codebook lists “22505 MANIPULATION “surgical” section, the procedures are grouped according to SPINE ANY REGION, REQUIRING ANES- the body system on which surgery is performed. THESIA” in the surgery section using the same five-digit code used in the most current version of On appeal, TBCE concedes that “MUA is listed in the the CPT. See American Medical Association, surgery section of the CPT Codebook and [is] thus a sur- Current Procedural Terminology 135 (2d ed. gical procedure under the Chiropractic Act.” See also 31 1970); American Medical Association, Current Tex. Reg. 4615 (2006) (Texas Bd. of Chiropractic Ex- Procedural Terminology CPT® 2012 75 (4th ed. am'rs) (stating the same thing). Nonetheless, TBCE insists 2011) (“22505 Manipulation of spine requiring that we must “harmonize” occupations code 201.002(a)(4), anesthesia, any region”). which would otherwise serve to exclude MUA from the scope of chiropractic, see Tex. Occ.Code Ann. § Manipulation 201.002(c)(1), with the general statutory authorization of chiropractors to perform “adjustment and manipulation,” (For spinal manipulation without anesthesia, use see id. § 201.002(b)(2), and what it perceives to be *484 an 97140) implicit authorization or recognition in occupations code 201.154 that chiropractors can perform MUA because, as 22505 Manipulation of spine requiring anesthesia, any previously explained, TBCE maintains that the section's region ban on “certification” of chiropractors to perform MUA would otherwise be redundant surplusage. Relatedly, American Medical Association, 2007 Current Proce- TBCE also invokes the principle that when statutory pro- dural Terminology (CPT®) 2007 85 (4th ed. 2006). visions irreconcilably conflict, the “more specific” provi- TCA represents that the referenced code “97140” does sion—what they view as the implicit authorization of not apply to chiropractors because there are different MUA present in section 201.154—should control over the codes—98940 through 98943—that cover “chiropractic “general” statutory exclusion of surgical procedures from manipulative treatment.” And because manipulation by chiropractic. See Tex. Gov't Code Ann. § 311.026(b) (West chiropractors is not covered by the cross-referenced 2005) (providing that specific provision prevails over code 91740, it reasons, the “manipulation of spine re- general); MBM Fin. Corp. v. Woodlands Operating Co., quiring anesthesia” code from which the reference is L.P., 292 S.W.3d 660, 670 n. 56 (Tex.2009) (citing to made must likewise not apply to chiropractors. See id. at government code section 311.026(b) for same proposi- xiv, 85 (describing the “Surgery” section of the CPT tion). codebook as including code numbers 10021 through
Appendix F to Brief of Appellant Page 20 of 32 69990). The portions of the CPT Codebook concerning possibly have intended. See Molinet v. Kimbrell, 356 chiropractic manipulation do not appear in our record. S.W.3d 407, 411 (Tex.2011) ( “The plain meaning of the Regardless, assuming that TCA's description of those text is the best expression of legislative intent unless a codes is accurate, and even assuming it is correct in different meaning is apparent from the context or the plain concluding that code 22505 (“manipulation of the spine meaning leads to absurd or nonsensical results.” (citing requiring anesthesia,” i.e., MUA) would not actually be City of Rockwall, 246 S.W.3d at 625–26)). It is also un- the code applied by a chiropractor who was billing for supported by the text of section 201.154 itself. the treatment, it remains undisputed that this code and accompanying description have appeared in the CPT The Chiropractor Parties' construction of section Codebook's “surgery” section at all relevant times. This 201.154 assumes that the word “certify” expresses an is all that the Legislature has required in order for MUA intent to grant some special or additional type of authority to be deemed a “surgical” procedure excluded from the to perform MUA beyond that conveyed through licensing. scope of chiropractic: “ ‘[s]urgical procedure’ includes a But “certify” simply means “to designate as having met the procedure described in the surgery section of the [CPT requirements for pursuing a certain kind of study or work.” Codebook].” See Tex. Occ.Code Ann. § 201.002(a)(4); See Webster's 367 (defining “certify” and comparing to 22 Tex. Admin. Code § 75.17(b)(2). The Legislature did “license”); see also Black's Law Dictionary 258 (9th ed. not condition this requirement on the identity or type of 2009) (describing “certify” as “attest as being true or as health-care provider who performs the procedure. And meeting certain criteria”). It does not necessarily require in the face of this unambiguous statutory language, it is some underlying, preexisting authority that would be en- simply irrelevant whether, as TCA insists, a chiropractor hanced, as it were, by the certification. In fact, the plain *485 would actually bill under code 22505. To the con- language of section 201.154—i.e., “the board may not trary, such a fact would, if anything, further confirm that adopt a process to certify chiropractors to perform the Legislature intended procedures “described” in the [MUA]”—suggests that without certification, chiroprac- Codebook's “surgical” section be off-limits to chiro- tors lack the authority to perform MUA. See Tex. practors. Occ.Code Ann. § 201.154 (emphasis added).
Nor should we construe section 201.002(a)(4) any If the Legislature had intended “certify” to have the differently to “harmonize” or avoid “conflict” with section meaning that the Chiropractor Parties suggest here—i.e., 201.154, the provision barring TBCE from “adopt[ing] a that “certification” contemplates some special designation process to certify chiropractors to perform [MUA].” As an and presumes a status quo in which chiropractors can initial observation, the gravamen of the Chiropractor Par- perform the procedure—a clearer statement of that intent ties' position concerning section 201.154 is that the Leg- would have been a prohibition against TBCE adopting a islature, despite its specific prohibition barring chiroprac- process to certify chiropractors, for example, “as an MUA tors from performing procedures listed under the CPT specialist” or “in the field of MUA.” See, e.g., Tex. surgery codes, intended to impliedly allow chiropractors to Occ.Code Ann. § 205.303(a) (West 2004) (“The medical perform one of the listed procedures. Their position further board may certify a person as an acudetox specialist....”) suggests that the Legislature intended (without explicitly (emphasis added); id. § 1701.404(b) (West Supp. 2011) saying so) that chiropractors be allowed to perform MUA, (“The commission may certify a sheriff, sheriff's deputy, yet went out of its way to bar TBCE from requiring any constable, other peace officer, county jailer, or justice of additional training or qualifications beyond licensing the peace as a special officer for offenders with mental minimums to ensure that chiropractors perform that pro- impairments....”) (emphasis added). But the plain language cedure safely. Such a construction yields what approaches of section 201.154 does not do this. Rather, it merely for- “absurd results” that we presume the Legislature could not bids TBCE from designating chiropractors as having met
Appendix F to Brief of Appellant Page 21 of 32 the requirements to perform MUA. Therefore, it does not emphasize the anecdotal legislative history of section necessarily follow that chiropractors already have the 201.154, the statutory text is dispositive here. See authority to perform MUA. DeQueen, 325 S.W.3d at 635 (noting that courts should look first to the plain meaning of statutory text as ex- For similar reasons, we also reject the TBCE's related pressing legislative intent); Alex Sheshunoff, 209 S.W.3d at contention that the “more specific” language of section 652 n. 4 (noting that reliance on secondary materials such 201.154 *486 should control over the statute's general ban as legislative history should be avoided when text is un- on surgical procedures. But even if we were to apply this ambiguous). We must, however, consider one final argu- canon of construction, section 201.154 cannot be said to be ment asserted by TCA. “more specific” than the ban on surgical procedures with regard to whether chiropractors may perform MUA. At [3] TCA urges that if we construe section best, section 201.154 implies that chiropractors may per- 201.002(a)(4) to deem MUA performed by chiropractors a form MUA, but section 201.002(a)(4) specifically pro- “surgical procedure,” we must invalidate the provision as vides that chiropractors may not perform MUA. Thus, an improper delegation of legislative authority that violates 201.002(a)(4) is the specific provision that should control. the separation-of-powers clause of the Texas Constitu- tion.FN27 See Tex. Const. art. III, § 1 (vesting the legislative Although our construction here could appear, at first power in the Senate and House of Representatives).FN28 glance, to render section 201.154 superfluous given the Specifically, the Chiropractor Parties assert that by effec- Act's ban on MUA as a surgical procedure, it also can be tively incorporating a coding system developed by the viewed as reinforcing the Legislature's intent that chiro- AMA—a private association (not to mention a longtime practors not perform MUA. See Nash, 220 S.W.3d at professional rival to chiropractors and chiropractic)—to 917–18 (noting that “there are times when redundancies supply a definition or description of “surgical procedure,” are precisely what the Legislature intended”); In re City of the Legislature has delegated its *487 authority to the Georgetown, 53 S.W.3d 328, 335–36 (Tex.2001) (con- AMA in a manner that fails the eight-factor balancing test struing duplicative provisions of the Open Records Act and articulated by the supreme court in Texas Boll Weevil concluding that “the Legislature repeated itself out of an Eradication Foundation, Inc., 952 S.W.2d at 472, for abundance of caution, for emphasis or both”). In any event, delegations of authority to private entities.FN29 Although occupations code section 201.002(a)(4) means what it we agree that a delegation of unbridled discretion to the says, and we cannot ignore this clear expression of legis- AMA to define “surgical procedures” would potentially lative intent in the cause of avoiding any redundancy with raise constitutional concerns, see id. at 471–75, we disa- section 201.154. See City of San Antonio v. City of Boerne, gree that the Legislature has delegated its authority in this 111 S.W.3d 22, 29 (Tex.2003) (“ ‘It is an elementary rule situation. of construction that, when possible to do so, effect must be given to every sentence, clause, and word of a statute so FN27. As was the case with TCA's assertion that that no part thereof be rendered superfluous.’ ”) (quoting MUA performed by chiropractors is not described Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597, 601 in the surgical section of the CPT Codebook, (1915)). TBCE does not join in this argument.
Based on the unambiguous text of occupations code FN28. Both the Physician Parties and the State of section 201.002(a)(4), we conclude that MUA is a “sur- Texas assert that TCA waived this argument by gical procedure” excluded from the statutory scope of non-suiting its affirmative claims for relief. To chiropractic and that occupations code section 201.154 is the contrary, TCA also raised this contention de- not to the contrary. Although the Physician Parties also fensively, as a ground for denying the Physician
Appendix F to Brief of Appellant Page 22 of 32 Parties' summary-judgment motion, thereby pre- S.W.2d 737, 741 (Tex.App.-Austin 1998, pet. ref'd). This serving it for appeal. See Tex.R. Civ. P. 166a(c). sort of cross-reference to fixed external fact, source, or Furthermore, in its notice of non-suit, TCA ex- standard is no more a delegation of legislative authority plicitly disclaimed any intent to waive its right to than a statutory reference to a measure of time or volume. assert any defensive arguments. Although no party has emphasized it, we observe that FN29. Although the text of section 201.002(a)(4) TBCE's scope-of-practice rule defines the “CPT Code- itself refers to an agency of the federal govern- book” as the version published by the AMA in 2004. See ment rather than the AMA (“the Centers for 22 Tex. Admin. Code § 75.17(b)(2) (identifying “the Medicare and Medicaid Services of the United American Medical Association's annual Current Proce- States Department of Health and Human Ser- dural Terminology CodeBook (2004)”). That is, in fact, the vices”), there is no dispute that at all relevant version of the CPT Codebook that was in effect when the times CMS has fully incorporated the AMA's Legislature adopted section 201.002(a)(4) in May CPT coding system, as TBCE has acknowledged 2005.FN30 Thus, TBCE has interpreted section in its rules. See Department of Health & Human 201.002(a)(4) to incorporate a fixed version of the CPT Services Medical Data Code Sets Rule, 45 C.F.R. Codebook. See Ex parte Elliott, 973 S.W.2d at 741. § 162(b)(1) (2012) (adopting AMA's CPT code- Moreover, we would reach the same conclusion even in the book for the period from October 16, 2003 absence of this rule. In Ex parte Elliott, we considered, in through September 30, 2013); 22 Tex. Admin. the context of a habeas proceeding, whether the Legisla- Code § 75.17(a)(4) (2011) (Tex. Bd. of Chiro- ture's incorporation of the Environmental Protection practic Exam'rs, Scope of Practice); see also Agency's definition of “hazardous waste” was an uncon- HCPCS–General Information, Centers for Med- stitutional delegation of legislative authority. See id. at icare & Medicaid Servs., https:// www. cms. gov/ 741. We held that the Legislature intended to adopt the Med HCPCSGen Info (last visited Mar. 13, 2012) EPA's definition of hazardous waste that existed on the (“Level I of the HCPCS is comprised of CPT date the relevant legislation was enacted. See id. In (Current Procedural Terminology), a numeric reaching our holding, we relied on supreme court prece- coding system maintained by the American dent that (1) a statute that *488 adopts another statute by Medical Association (AMA).”). Consequently, reference adopts the referenced statute as it exists at the the statutory reference to the “common procedure time of adoption, but not as it may be amended in the fu- coding system adopted” by CMS was, at least at ture, see id. (citing Trimmier v. Carlton, 116 Tex. 572, 296 the time of the statute's 2005 enactment, tanta- S.W. 1070, 1074 (1927)), and that (2) we must construe a mount to incorporating the AMA's CPT Code- statute subject to varying interpretations in a manner that book. assumes the Legislature's intent to enact a constitutional statute. See id. at 742 (citing Brady v. Fourteenth Court of Whether the Legislature has, in fact, delegated its Appeals, 795 S.W.2d 712, 715 (Tex.1990)); see also Tex. authority to define “surgical procedures” to the AMA Gov't Code Ann. § 311.021(1) (West 2005) (establishing depends initially on whether section 201.002(a)(4) incor- presumption that the Legislature intended for statutes to be porates (1) some fixed version of the CPT Codebook or (2) constitutional); but see id. § 311.027 (West 2005) the CPT Codebook in whatever manner the AMA may (providing that statutory references to a statute or rule revise or amend it in the future. If the former, the Legis- applies to revisions or amendments to the statute or rule). lature has not delegated its authority to define “surgical In this case, we would similarly construe section procedure,” but has instead defined that term itself, albeit 201.002(a)(4) so as to avoid the potential constitutional by reference to another source. See Ex parte Elliott, 973 infirmities and hold that it references the version of the
Appendix F to Brief of Appellant Page 23 of 32 CPT Codebook in effect on the date of its enactment, May The district court did not err in granting summary judg- 27, 2005. Under that construction, no delegation of the ment to that effect. We overrule the Chiropractor Parties' Legislature's authority to define “surgical procedure,” issues concerning MUA. much less an unlawful one, has occurred. See Ex parte Elliott, 973 S.W.2d at 742. “Diagnosis” In its remaining issues, TCA (but not TBCE) chal- FN30. According to the evidence in the record, lenges the district court's judgment invalidating rules au- the AMA publishes the CPT Codebook annually thorizing chiropractors to make certain “diagnoses.” In in the late summer or early fall, to be effective addition to responding to TCA's issues, the Physician Par- January 1. Thus, the CPT Codebook in effect for ties assert what they term a “cross-point” urging affir- the calendar year 2005—i.e., CPT 2005—would mance based on the grounds they raised in their first mo- have had a publication date of 2004. See, e.g., tion for partial summary judgment, and also what is sub- American Medical Association Current Proce- stantively a motion to dismiss one of TCA's issues for lack dural Terminology CPT 2012 (4th ed. 2011) of subject-matter jurisdiction. Before turning to the parties' (designated as “CPT 2012,” but published in competing contentions, it is necessary to clarify, at some 2011). length, the specific rules at issue, the scope of the district court's ruling, and the procedural posture of the remaining TCA counters that construing section 201.002(a)(4) to issues on appeal. adopt a fixed version of the CPT Codebook poses due-process concerns because the AMA updates the CPT The statutory scope of chiropractic, again, includes Codebook annually and prior versions of the CPT Code- “us[ing] objective or subjective means to analyze, exam- book are “inaccessible.” We simply note that, in addition ine, or evaluate the biomechanical condition of the spine to the fact that there is no summary-judgment evidence in and musculoskeletal system of the human body” and the record that the 2004 edition of the CPT Codebook was “perform[ing] nonsurgical, nonincisive procedures ... to inaccessible to any party, our own independent research on improve *489 the subluxation complex or the biome- the delegation question has confirmed that this specific chanics of the musculoskeletal system.” See Tex. publication is available through public sources, including Occ.Code Ann. § 201.002(b)(1), (2). In subpart (d)(1) of its interlibrary loan from the Texas State Law Library. Thus, scope-of-practice rule, TBCE construed these provisions to although not as readily accessible as the current version of permit chiropractors to render certain “analyses,” “diag- the CPT Codebook, the 2004 CPT Codebook is not inac- noses,” and “other opinions”: cessible. (d) Analysis, Diagnosis, and Other Opinions As previously noted, there is no dispute that MUA was described in the “surgical” section of the CPT Codebook (1) In the practice of chiropractic, licensees may ren- throughout the period at issue, including in its 2004 ver- der an analysis, diagnosis, or other opinion regarding sion. As there is no constitutional barrier to section the findings of examinations and evaluations. Such 201.002(a)(4)'s enforcement, we must give it effect and opinions could include, but are not limited to, the hold that MUA is a “surgical procedure” excluded from the following: statutory scope of chiropractic practice. See Tex. Occ.Code Ann. § 201.002(b)(2), (c)(1). Consequently, subsection (A) An analysis, diagnosis or other opinion re- 75.17(e)(2)(O), which purports to authorize chiropractors garding the biomechanical condition of the spine or to perform MUA, is beyond TBCE's statutory authority musculoskeletal system including, but not limited and void. See Gulf States Utils. Co., 809 S.W.2d at 207.
Appendix F to Brief of Appellant Page 24 of 32 to, the following: or condition;
(i) the health and integrity of the structures of the (D) An opinion regarding the likelihood of recovery system; of a patient or condition under an indicated course of treatment; (ii) the coordination, balance, efficiency, strength, conditioning and functional health and integrity of (E) An opinion regarding the risks associated with the system; the treatment procedures that are indicated in the therapeutic care of a patient or condition; (iii) the existence of structural pathology, functional pathology or other abnormality of the system; (F) An opinion regarding the risks associated with not receiving the treatment procedures that are in- (iv) the nature, severity, complicating factors and dicated in the therapeutic care of a patient or con- effects of said structural pathology, functional pa- dition; thology, or other abnormality of the system; (G) An opinion regarding the treatment procedures (v) the etiology of said structural pathology, func- that are contraindicated in the therapeutic care of a tional pathology or other abnormality of the system; patient or condition; and (H) An opinion that a patient or condition is in need (vi) the effect of said structural pathology, func- of care from a medical or other class of provider; tional pathology or other abnormality of the system on the health of an individual patient or population (I) An opinion regarding an individual's ability to of patients; perform normal job functions and activities of daily living, and the assessment of any disability or im- (B) An analysis, diagnosis or other opinion regard- pairment; ing a subluxation complex of the spine or muscu- loskeletal system including, but not limited to, the (J) An opinion regarding the biomechanical risks to following: a patient, *490 or patient population from various occupations, job duties or functions, activities of (i) the nature, severity, complicating factors and daily living, sports or athletics, or from the ergo- effects of said subluxation complex; nomics of a given environment; and
(ii) the etiology of said subluxation complex; and (K) Other necessary or appropriate opinions con- sistent with the practice of chiropractic. (iii) the effect of said subluxation complex on the health of an individual patient or population of pa- 22 Tex. Admin. Code § 75.17(d)(1). In a subpart tients; (d)(2) to the rule, however, TBCE described several ex- amples of “analyses,” “diagnoses,” or “other opinions” that would be, in its view, outside the permissible scope of (C) An opinion regarding the treatment procedures chiropractic practice: that are indicated in the therapeutic care of a patient
Appendix F to Brief of Appellant Page 25 of 32 (2) Analysis, diagnosis, and other opinions regard- 75.17(d) (or any of the challenged rules) were held to be ing the findings of examinations and evaluations within the statutory scope of chiropractic, TMA asserted which are outside the scope of chiropractic include: an alternative constitutional challenge to the underlying statutes themselves under article XVI, section 31 of the (A) incisive or surgical procedures; Texas Constitution.
(B) the prescription of controlled substances, dan- In their first motion for partial summary judgment, the gerous drugs, or any other drug that requires a pre- Physician Parties sought judgment on their broader de- scription; claratory claim challenging 75.17(d). The Chiropractor Parties countered with their own motion for partial sum- mary judgment seeking dismissal of the Physician Parties' (C) the use of x-ray therapy or therapy that exposes claims that the use of the term “diagnosis” in its the body to radioactive materials; or scope-of-practice rule exceeded chiropractic's statutory scope. They asserted that “diagnosis” in its ordinary (D) other analysis, diagnosis, and other opinions meaning broadly denoted a process of analysis and evalu- that are inconsistent with the practice of chiropractic ation and was, therefore, included or implicit in the express and with the analysis, diagnosis, and other opinions statutory authorizations of chiropractors to “analyze,” described under this subsection. “examine,” and “evaluate,” if not also the authorizations to treat certain conditions. The district court denied the Phy- Id. § 75.17(d)(2). sician Parties' motion and granted the Chiropractors' mo- tions “in part as to the Chiropractic *491 Board's use of the In their live pleadings, the Physician Parties sought word ‘diagnosis' in its rule.” “However,” the court em- two declarations that 75.17(d) was invalid for exceeding phasized in its order, it “reserve[d] judgment regarding the scope of chiropractic practice and permitting chiro- ‘diagnosis' as it relates to scope of practice.” (Emphasis in practors to practice medicine without a medical license, in original.) turn violating the Medical Practice Act and, alternatively, article XVI, section 31 of the Texas Constitution. First, Subsequently, the Physician Parties filed a second they sought a declaration that 75.17(d)'s use of “diagnosis” motion for partial summary judgment seeking relief only in itself rendered this rule and various related rules invalid, as to two portions of 75.17(d)—(d)(1)(A), which author- reasoning that the statutory scope of chiropractic permits ized “analysis, diagnosis or other opinion” concerning a licensees to “analyze, examine, or evaluate” certain con- list of six specific subjects “regarding the biomechanical ditions, but not to “diagnose” them, and that “diagnose” is condition of the spine or musculoskeletal system”; and instead reserved to the practice of medicine and certain (d)(1)(B), which authorized “analysis, diagnosis or other other health care professions. Compare Tex. Occ.Code opinion” concerning a list of three specific subjects “re- Ann. § 201.002(b)(1) (providing that one practices chiro- garding a subluxation complex of the spine or musculo- practic if he or she “uses objective or subjective means to skeletal system.” See 22 Tex. Admin. Code § analyze, examine, or evaluate ...”) with id. § 151.002(a)(3) 75.17(d)(1)(A), (B). In this motion, they relied on their (“ ‘[p]racticing medicine’ means the diagnosis, treatment, narrower claim that these provisions exceeded chiroprac- or offer to treat ...”). Second, they sought a narrower dec- tic's statutory scope of practice and also violated article laration that 75.17(d) exceeded the statutory scope of XVI, section 31 of the Texas Constitution by permitting chiropractic by permitting licensees to “diagnose” condi- chiropractors to “diagnose” conditions, such as diseases, tions beyond the biomechanical condition of the spine and that were beyond the “biomechanical condition[s] of the musculoskeletal system. Additionally, in the event spine and musculoskeletal system of the human body” that
Appendix F to Brief of Appellant Page 26 of 32 chiropractors were statutorily permitted to “analyze, ex- third and fourth issues, the Physician Parties assert what amine, or evaluate.” See Tex. Occ.Code Ann. § they style as a “cross-point” urging that we affirm the 201.002(b)(1). The Chiropractor Parties countered with a summary judgment as to (d)(1)(A) and (B) on the ground, joint “supplemental” motion for partial summary judgment originally presented in their first motion for partial sum- and request for judicial notice urging that “diagnose” mary judgment, that the statutory scope of chiropractic (which, again, they viewed as synonymous or implicit in does not include “diagnosing” a condition, as opposed to “analyze,” “examine,” and “evaluate”) encompassed di- “analyzing, examining, or evaluating” it. TCA *492 re- agnosis of diseases and any other matter listed in plies, and we agree, that the Physician Parties' 75.17(d)(1) and (2).FN31 Without stating the specific “cross-point” seeks relief beyond that which they were grounds on which it relied, the district court granted the afforded in the district court's judgment, which explicitly Physician Parties' second motion for partial summary granted the Chiropractor Parties' motion for partial sum- judgment and, as before, denied the Chiropractor Parties' mary judgment and rendered a take-nothing judgment as to motions except to the extent of granting them “as to the use the Physician Parties' claims for a declaration that the use of the word ‘diagnosis' in the rule.” Both sum- of “diagnosis” in itself rendered 75.17(d) invalid. Conse- mary-judgment rulings were merged into and expressly quently, to raise this contention on appeal, the Physician memorialized in the final judgment, which further declared Parties were required to file their own notice of appeal. See “22 Tex. Admin. Code §§ 75.17(d)(A) and (B), concerning Tex.R.App. P. 25.1(c) (“A party who seeks to alter the trial diagnosis, ... invalid and void” and ordered that the parties court's judgment ... must file a notice of appeal.”); Lubbock take nothing on any claims for relief not awarded therein. County, Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex.2002); Quimby v. Texas Dep't of Transp., 10 FN31. Additionally, in the meantime, TBCE filed S.W.3d 778, 781 (Tex.App.-Austin 2000, pet. denied). a motion for partial summary judgment seeking They did not do so. We thus lack jurisdiction to consider dismissal of the Physician Parties' constitutional the Physician Parties' “cross-point” and dismiss it.FN32 See claims challenging 75.17(d) and, alternatively, its Tarrant Restoration v. TX Arlington Oaks Apartments, underlying statutes. However, we cannot discern Ltd., 225 S.W.3d 721, 733–34 (Tex.App.-Dallas 2007, pet. from the record that TBCE ever obtained a ruling dism'd w.o.j.). on this motion. FN32. We emphasize that we express no opinions In its third issue, TCA urges that the district court regarding the merits of the cross-point that the erred in concluding that (d)(1)(A) (concerning “analysis, Physician Parties attempt to assert. diagnosis or other opinion” regarding what were termed aspects of “the biomechanical condition of the spine or Conversely, the Physician Parties suggest that we lack musculoskeletal system”) exceeded chiropractic's statutory subject-matter jurisdiction to consider TCA's fifth issue scope of practice. In its fourth issue, it advances a similar challenging the potential summary-judgment ground that contention as to the district court's invalidation of (d)(1)(B) 75.17(d)(1)(A) and (B) violate article XVI, section 31 of (concerning “analysis, diagnosis or other opinion regard- the Texas Constitution. Citing the portion of the district ing a subluxation complex of the spine or musculoskeletal court's judgment stating that its summary-judgment rulings system”). In its fifth and final issue, TCA challenges the had rendered “moot” “TMA's and TMB's constitutional Physician Parties' alternative summary-judgment ground challenges,” the Physician Parties accuse TCA of seeking that (d)(1)(A) and (B) violated article XVI, section 31 of an “advisory opinion” regarding a claim or issue that the the Texas Constitution. district court never reached. We observe that while TMA's alternative constitutional challenges to the underlying [4] In addition to joining issue on the merits of TCA's statutes were never adjudicated below and would indeed
Appendix F to Brief of Appellant Page 27 of 32 have been mooted by the district court's sum- diagnosis or other opinion regarding the biomechanical mary-judgment rulings, it is unclear whether the district condition of the spine or musculoskeletal system” and court's reference to “moot” “constitutional challenges” was provides a non-exclusive list of examples of such analyses, intended also to refer to the constitutional challenge to rule diagnoses, and opinions that TBCE has determined fit 75.17(d)(1)(A) and (B), as opposed to the statutes, that the within this provision. See 22 Tex. Admin. Code § Physician Parties had presented as a ground for partial 75.17(d)(1)(A). Although the *493 district court did not summary judgment. Regardless, we ultimately agree with specify the grounds on which it relied to find this provision the Physician Parties that TCA's fifth issue is moot, if for invalid, the Physician Parties argued in support of their no other reason than that the Physician Parties, by taking motion for summary judgment, and also in their briefs to the position that the district court never reached their this Court, that this provision improperly allows chiro- summary-judgment ground concerning the constitutional- practors to diagnose diseases that cannot be considered ity of 75.17(d)(1)(A) and (B), have conceded that we biomechanical conditions of the spine or musculoskeletal cannot affirm the summary judgment invalidating those system. On appeal, TCA responds that when read in the provisions on that basis. context of the rule as a whole, subpart (d)(1)(A) does not exceed the statutory scope of chiropractic because it limits Having thus clarified and narrowed the matters in chiropractors to making diagnoses only regarding the dispute, the sole dispositive questions remaining before us biomechanical condition of the spine or musculoskeletal in regard to 75.17(d)(1)(A) and (B) are whether those rule system, consistent with the statutory scope of chiropractic. provisions exceed the statutory scope of chiroprac- See Tex. Occ.Code Ann. § 201.002(b)(1); 22 Tex. Admin. tic—assuming, as we must do in the present procedural Code § 75.17(d)(1)(A). We agree. posture, that TBCE's use of the term “diagnosis” does not in itself cause the provision to exceed the statutory or The effect of our procedurally required assumption permissible constitutional scope of chiropractic practice. that TBCE's use of the term “diagnosis” does not in itself cause the scope-of-practice rule to exceed the statutory “Diagnoses” and “opinions” regarding the “biome- scope of chiropractic is that the word “diagnose” is syn- chanical condition of the spine or musculoskeletal system onymous with the phrase “analyze, examine, or evaluate” ” in the statutory scope of chiropractic. See Tex. Occ.Code [5] Subpart (d)(1)(A) of TBCE's scope-of-practice Ann. § 201.002(b)(1). As such, subpart (d)(1)(A) effec- rule allows a chiropractor, again, to render “an analysis, tively tracks the Legislature's scope of chiropractic:
Tex. Occ.Code Ann. § 201.002(b)(1) 22 Tex. Admin. Code § 75.17(d)(1)(A) (b) A person practices chiropractic under [the Chiropractic (1) In the practice of chiropractic, licensees may render and Act] if the person: analysis, diagnosis, or other opinion regarding the findings of examinations and evaluations. Such opinions could include, but are not limited to, the following:
(1) uses objective or subjective means to analyze, examine, or (A) An analysis, diagnosis or other opinion regarding the evaluate the biomechanical condition of the spine and mus- biomechanical condition of the spine or musculoskeletal sys- culoskeletal system of the human body[.] tem including, but not limited to, the following [list of exam- ples]. Id.; 22 Tex. Admin. Code § 75.17(d)(1)(A). Thus, the
Appendix F to Brief of Appellant Page 28 of 32 plain language of (d)(1)(A) limits chiropractors to diag- disease, see Dorland's at 690 (defining “etiology” as “the nosing—i.e., “analyzing, examining, or evaluat- study or theory of the factors that cause disease”), 1416 ing”—biomechanical conditions of the spine or musculo- (defining “pathology” as “the branch of medicine that skeletal system. Further, because the list of non-exclusive deals with the essential nature of disease”), to argue that examples of such “diagnoses” are grammatically depend- this provision of the scope-of-practice rule allows chiro- ent on or otherwise stem from the paragraph's initial practors to diagnose a wide range of diseases and condi- statement that the diagnosis regard the biomechanical tions, including various cancers, arthritis, osteoporosis, condition of the spine or musculoskeletal system, the listed gout, ALS, and bone fractures. examples are likewise limited to the biomechanical condi- tion of the spine or musculoskeletal system of the human FN33. “The system of muscles and tendons and body. In other words, the non-exclusive list of example ligaments and bones and joints and associated opinions or diagnoses cannot be read in isolation; rather, tissues and nerves that move the body and main- they must be read as being dependent upon or bounded by tain its form.” 22 Tex. Admin. Code § the restriction that they also regard the biomechanical 75.17(b)(4). condition of the spine or musculoskeletal system. To that extent, this complies with the statutory scope of chiro- FN34. “[A] neuromusculoskeletal condition that practic. involves an aberrant relationship between two adjacent articular structures that may have func- The Physician Parties counter that this provision does tional or pathological sequelae, causing an alter- not restrict chiropractors to the biomechanical condition of ation in the biomechanical and/or neu- the spine or musculoskeletal system because it allows them ro-physiological reflections of these articular to diagnose diseases without limitation. In support of this structures, their proximal structures, and/or other contention, they point to the rule's “expansive definitions” body systems that may be directly or indirectly of “musculoskeletal system” FN33 and “subluxation*494 affected by them.” Id. § 75.17(b)(7). complex,” FN34 the rule's “broad catch-all phrases “in- cluding but not limited to,” “structural pathology,” “func- But apart from the fact that the common, ordinary tional pathology,” and “etiology,” and finally to their as- meaning of “diagnosis” also includes the identification of a sertion that the common, ordinary meaning of the word “condition” or an “injury,” see Webster's at 622; American “diagnose” incorporates identification of diseases, see Heritage College Dictionary at 383, the Physician Parties' Webster's at 622 (defining “diagnose” as “to identify (as a argument presumes that “disease” would extend beyond disease or condition) by symptoms or distinguishing the biomechanical condition of the spine or musculoskel- characteristics”); American Heritage College Dictionary at etal system of the human body. This construction, as pre- 383 (defining “diagnosis” as “act or process of determining viously suggested, ignores the plain language of the rule the nature and cause of a disease or injury through exam- restricting any such diagnosis to the biomechanical condi- ination of a patient”). Specifically, they assert that because tion of the spine or musculoskeletal system. The text and “biomechanical” refers only to the application of me- format of this provision plainly shows that “the system” chanical principles—i.e., the action of forces on matter or discussed in each of the examples is “the biomechanical material, see Webster's at 1401 (defining “mechanics” and condition of the spine and musculoskeletal system” re- “mechanical”)—to living bodies and does not involve ferred to at the beginning of the provision. Stated another diseases of any kind, chiropractors may not render a di- way, each of the listed examples is limited to the Legisla- agnosis, which by definition involves the identification of ture's standard of “biomechanical condition of the spine a disease. Relatedly, they point to the rule's use of “pa- and musculoskeletal system.” Thus, regardless of whether thology” and “etiology,” which also involve the study of diagnosis, pathology, or etiology invoke concepts of dis-
Appendix F to Brief of Appellant Page 29 of 32 ease as the Physician Parties suggest, the bottom line is that tion services to: paragraph (d)(1)(A) limits chiropractors to diagnoses re- garding “the biomechanical condition of the spine and (A) Determine the bio-mechanical condition of the musculoskeletal system” as required by the statutory scope spine and musculoskeletal system of the human of chiropractic. Accordingly, the provision does not exceed body including, but not limited to, the following.... the statutory scope of chiropractic. .... In a related argument, the Physician Parties challenge TBCE's use of the phrase “could include, but are not lim- (B) Determine the existence of subluxation com- ited to” in subpart (d)(1) of the scope-of-practice rule, plexes of the spine and musculoskeletal system of suggesting that it, in combination with the issues discussed the human body and to evaluate their condition in- above, eviscerates any purported limitation on chiroprac- cluding, but not limited to.... tors' authority to diagnose by allowing chiropractors to “diagnose any diseases (pathology) that relate to the bio- Id. § 75.17(c)(1)(A), (B). Thus, the plain language of mechanical condition of the spine and musculoskeletal 75.17(d)(1) provides that chiropractors may render diag- system (redefined to include nerves and other tissues), noses regarding findings and examinations within the determine their origins *495 (etiology) and provide a statutory scope of chiropractic, and offers a non-exclusive prognosis on the disease's effect.” But this argument re- list of examples of such opinions. It does not, by its plain quires reading 75.17(d)(1) in an unnecessarily strained language, allow them to render diagnoses that do not in- manner. volve the statutory scope of chiropractic. As such, it does not exceed the statutory scope of chiropractic. As set forth above, paragraph (d)(1) states that chiro- practors “may render an analysis, diagnosis, or other We sustain TCA's third issue. opinion regarding the findings of examinations and eval- uations. Such opinions could include, but are not limited to, the following[.]” See 22 Tex. Admin. Code § 75.17(d)(1) “Diagnoses” and “opinions” regarding “a subluxation (emphases added). “But are not limited to” as it is used complex of the spine or musculoskeletal system ” here merely means that the list of examples that follows is [6] Relatedly, the Physician Parties argued success- not a comprehensive list of every type of authorized fully to the district court that the following paragraph of opinion—i.e., there could be other types of opinions that fit TBCE's scope-of-practice rule, (d)(1)(B), also exceeds the within the parameters of the provision that are not men- statutory scope of chiropractic: tioned in the list. Also, use of this phrase does not alter the limitation in the rule that the “diagnosis” referred to must (1) In the practice of chiropractic, licensees may regard the findings of “examinations and evaluations,” a render an analysis, diagnosis, or other opinion re- phrase that itself is described earlier in the garding the findings of examinations and evalua- scope-of-practice rule in terms of the statutory scope of tions. Such opinions could include, but are not lim- chiropractic: ited to, the following:
(c) Examination and Evaluation ...
(1) In the practice of Chiropractic, licensees of this (B) An analysis, diagnosis or other opinion regard- board provide necessary examination and evalua- ing a subluxation complex of the spine or muscu-
Appendix F to Brief of Appellant Page 30 of 32 loskeletal system including, but not limited to, the following: [list of examples]. neuromusculoskeletal condition that involves an aber- rant relationship between two adjacent articular struc- 22 Tex. Admin. Code § 75.17(d)(1)(B). Initially, the tures that may have functional or pathological sequelae, Physician Parties argue that this paragraph of the causing an alteration in the biomechanical and/or neu- scope-of-practice rule is invalid because it allows chiro- ro-physiological reflections of these articular structures, practors to diagnose a subluxation complex despite the fact their proximal structures, and/or other body systems that that the statutory scope of chiropractic only allows chiro- may be directly or indirectly affected by them. practors to treat the subluxation complex. Compare Tex. Occ.Code Ann. § 201.002(b)(1) (allowing chiropractors 22 Tex. Admin. Code § 75.17(b)(7). The rule also “to analyze, examine, or evaluate the biomechanical con- defines “musculoskeletal system” as the “system of mus- dition of the spine or musculoskeletal system”) (emphasis cles and tendons and ligaments and bones and joints and added) with id. § 201.002(b)(2) (allowing chiropractors “to associated tissues and nerves that move the body and ... perform procedures*496 to improve the subluxation maintain its form.” See id. § 75.17(b)(4). “Neuro-” is a complex or the biomechanics of the musculoskeletal sys- prefix meaning “nerve,” see Dorland's at 1284, and “ar- tem) (emphasis added). Stated another way, the Physician ticular” refers to joints, see id. at 160. To a certain extent, Parties argue that while chiropractors—again assuming then, use of the prefix “neuro-“ with the adjective “artic- our procedural limitations as to “diagnosis”—may diag- ular” in connection with “musculoskeletal” is redundant in nose the biomechanical condition of the spine or muscu- that TBCE's definition of “musculoskeletal system” al- loskeletal system, they can only treat, but not diagnose, the ready includes both nerves and joints. Nevertheless, the subluxation complex. We find this argument unpersuasive. bottom line here is that 75.17(d)(1)(B) allows chiroprac- tors to diagnose a condition that under unchallenged rules This argument suggests that the Legislature intended is part of the musculoskeletal system of the human body. to allow chiropractors to treat a condition that is undis- To that extent, it comports with the statutory scope of putedly unique to the practice of chiropractic, while also chiropractic. deliberately depriving them of the ability to analyze, ex- amine, evaluate, or (given our procedural posture) “diag- The Physician Parties also contend that the language nose” that condition. We cannot see how a chiropractor of paragraph (d)(1)(B) allows chiropractors, in violation of would know to treat a subluxation complex if he had not the statutory scope of chiropractic, to diagnose neurolog- first determined from an analysis, examination, or evalua- ical conditions, pathological and neuro-physiological tion/ “diagnosis” that there was a problem with the sub- consequences that effect the spine and musculoskeletal luxation complex that needed chiropractic treatment. A system, and “other body systems” that are affected by more logical interpretation, and one supported by the text subluxation. We disagree that this provision sweeps so of both the occupations code and TBCE's broadly. Although the definition of “subluxation complex” scope-of-practice rule and by the summary-judgment ev- indicates that its existence may have functional or patho- idence, is that a subluxation complex is part of the bio- logical consequences or that it may affect essentially every mechanical condition of the spine or musculoskeletal sys- part of the body, the rule itself only allows chiropractors to tem of the human body and, thus, may be analyzed, eval- render an analysis, diagnosis, or other opinion regarding a uated, examined, and diagnosed by chiropractors. subluxation complex of the spine or musculoskeletal sys- tem. Accordingly, it does not exceed the statutory scope of TBCE's unchallenged definition of “subluxation chiropractic. complex” establishes that it is a—
Appendix F to Brief of Appellant Page 31 of 32 We sustain TCA's fourth issue.
CONCLUSION Having determined that, in the procedural posture of this appeal, the district *497 court erred in its judgment invalidating subparts 75.17(d)(1)(A) and (B) of TBCE's scope-of-practice rule, we reverse that portion of the judgment. In light of our reversal of the district court's summary judgment invalidating subparts 75.17(d)(1)(A) and (B) of the scope-of-practice rule, we remand the case for further proceedings regarding the Physician Parties' alternative constitutional challenges. Having otherwise overruled each of the Chiropractor Parties' issues on ap- peal, we affirm the remainder of the district court's judg- ment that subparts 75.17(a)(3), (c)(2)(D), (c)(3)(A), and (e)(2)(O) of TBCE's scope-of-practice rule are void.
Tex.App.–Austin,2012. Texas Bd. of Chiropractic Examiners v. Texas Medical Ass'n 375 S.W.3d 464
END OF DOCUMENT
Appendix F to Brief of Appellant Page 32 of 32
Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity (Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.