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 7670545 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/3/2015 8:31:01 PM JEFFREY D. KYLE CLERK

American College of Acupuncture and Oriental Medicine RECEIVED IN 3rd COURT OF APPEALS 9100 Park West Drive, Houston, TX 77063. Phone (713) 780.9777. www.acaom.edu AUSTIN, TEXAS 11/3/2015 8:31:01 PM JEFFREY D. KYLE Clerk

Honorable Jeffrey D. Kyle Clerk, Third Court of Appeals 209 W 14th Street, Room 101 Austin, TX 78701

Re: Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners and Yvette Yarborough, Executive Director in Her Official Capacity, No. 3-15-00262-CV

Mr. Kyle:

On behalf of the American College of Acupuncture and Oriental Medicine1, I

respectfully submit this amicus curiae letter for your consideration in the above

referenced matter.

My perspective on the issue before the court is both personal and professional. I

am the president of the American College of Acupuncture and Oriental Medicine

in Houston, Texas, a school founded by my father, Shen Ping Liang, Ph.D., L.Ac.,

who also played an instrumental role in negotiating the original language of the

Acupuncture Chapter of the Texas Occupations Code as a founding member of the

1 The American College of Acupuncture and Oriental Medicine, available at https://acaom.edu. Texas Acupuncture Association, now the Texas Association of Acupuncture and

Oriental Medicine. Not in his wildest dreams would my father have imagined, just

four years after the long and arduous struggle to make acupuncture a legally

recognized and regulated profession in Texas, that another regulatory agency

would step in and undermine these efforts.

Traditional Chinese Medicine is a cultural treasure for all of mankind, and to

diminish the integrity of the practice of acupuncture for the gain of the chiropractic

profession diminishes not just the integrity of acupuncture, but also that of

chiropractic. I have previously stated my concern to the Chiropractic Board in the

rule making process that if a patient has an unfavorable experience with

acupuncture performed by a chiropractor as a result of insufficient training; both

the acupuncture and chiropractic professions bear the brunt.

Just as an acupuncturist wanting to practice chiropractic manipulation would be

required to become licensed in the practice of chiropractic, so too should a

chiropractor wanting to practice acupuncture be required to become licensed to

practice acupuncture. The Texas Board of Chiropractic Board Examiners itself

recognizes a Masters level of training as an entry level standard in articulating the

National Certification Commission for Acupuncture and Oriental Medicine

(NCCAOM) acupuncture examination as one pathway by which chiropractors may

be allowed to practice acupuncture in Texas (A Masters level training is required to sit for the NCCAOM exam).2 But unfortunately, the Chiropractic Board

simultaneously allows a far less rigorous standard of entry to practice with the 100

hour/no clinical training required National Board of Chiropractic Examiners

acupuncture exam.3

An ordinary citizen of Texas, when seeking acupuncture treatment, likely has

no knowledge of or way to discern the disparity of training that currently exists

between Licensed Acupuncturists and chiropractors who practice acupuncture and

who technically can legally represent themselves as acupuncturists without actually

being licensed in acupuncture4. Most people would likely just assume that if a

healthcare provider is performing acupuncture they must be a Licensed

Acupuncturist. A 2013 Houston Chronicle article on acupuncture exemplifies this 5 perfectly. In this article a Doctor of Chiropractic who practices acupuncture is

incorrectly identified as a Licensed Acupuncturist.

2 22 TEX. ADMIN. CODE §78.14. See also National Certification Commission for Acupuncture and Oriental Medicine, NCCAOM Certification Handbook 2015, available at http://www.nccaom.org/wp-content/uploads/pdf/Certification%20Handbook.pdf. 3 See National Board of Chiropractic Examiners, Acupuncture Brochure (page 3, Applicant Eligibility), available at http://nbce.wpengine.com/wp-content/uploads/acu_brochure.pdf. 4 Even the Chiropractic Board confuses the issue. During a 2012 Chiropractic Board meeting, Janet Kirben, then Chiropractic Board Chair refers to chiropractic licensees, “…who already are licensed to practice acupuncture in this state and have been for quite a time.” Chiropractic Board July 11, 2012 ad hoc meeting, at 0:02:41, available at https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3. See also CR 249, Admission No. 14 (admitting that the Chiropractic Board does not certify or license chiropractors in acupuncture.) 5 See Houston Chronicle, Doctors Increasingly Are Turning to Acupuncture for Treatment of Pain, available at http://www.chron.com/news/health/article/Doctors-increasingly-are-turning-to- acupuncture-4919724.php. At my school we have two dually licensed Doctors of Chiropractic/Licensed

Acupuncturists on faculty, and not one of these individuals thinks that how the

Chiropractic Board has operated is in the best interest of the chiropractic

profession, the acupuncture profession, or the public.

The State of Texas has seen fit to regulate the practice of acupuncture and to

establish minimum standards for practice. The rules adopted by the Chiropractic

Board undermine the requirements of both the Acupuncture Chapter and the

Chiropractic Chapter of the Occupations Code, and erode the integrity of both

professions. For these reasons, the American College of Acupuncture and Oriental

Medicine submits this amicus letter and humbly requests that the Third Court of

Appeals reverse the decision by the District Court and render judgement in favor of

the Texas Association of Acupuncture and Oriental Medicine.

Sincerely, /s/ John Paul Liang

John Paul Liang Ph.D., L.Ac. President American College of Acupuncture and Oriental Medicine 9100 Westpark Drive Houston, TX 77063 Phone: (713) 780-9786 jpliang@acaom.edu Certificate of Amicus

Pursuant to Rule 11 of the Texas Rules of Appellate Procedure, this will

confirm that the American College of Acupuncture and Oriental Medicine has not

incurred any legal fees related to the drafting of this letter. The undersigned is an

employee and the President of the American College of Acupuncture and Oriental

Medicine and neither the American College of Acupuncture and Oriental Medicine

nor the undersigned have received or will receive any direct compensation for the

drafting or submission of this amicus letter.

/s/ John Paul Liang John Paul Liang

Certificate of Compliance

I certify on behalf of Amicus Curiae, that this Amicus letter contains 729

words according to the word count feature of the software used to prepare this

amicus letter.

/s/ John Paul Liang John Paul Liang Certificate of Service

I hereby certify that a true and correct copy of the above and foregoing

Amicus letter has been served to all attorneys of record as listed below on

November 3, 2015.

Joe H. Thrash Assistant Attorney General Administrative Law Division P.O. Box 12548 Austin, Texas 78711 Joe.Thrash@texasattorneygeneral.gov

Craig T. Enoch Enoch Kever, PLLC. 600 Congress Avenue, Suite 2800 Austin, Texas 78701 cenoch@enochkever.com /s/John Paul Liang John Paul Liang