ACCEPTED
03-15-00262-CV
7960791
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/23/2015 8:35:53 PM
JEFFREY D. KYLE
CLERK
Council of Colleges of
Acupuncture and Oriental Medicine
RECEIVED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
November 20, 2015 11/23/2015 8:35:53 PM
JEFFREY D. KYLE
Clerk
Honorable Jeffrey D. Kyle
Clerk, Third Court of Appeals
209 West 14th Street, Roon1 101
Austin, TX 78701
RE: Texas Association of Acupuncture and Oriental Medicine v.
Texas Board of Chiropractic Examiners, No. 3- 15-00262-CV
Dear Mr. Kyle:
This letter is on behalf of the Council of Colleges of Acupuncture
and Oriental Medicine (Council) and in support of the position of the
Texas Association of Acupuncture and Oriental Medicine (TAAOM) in
the above captioned case.
The Council is a 501 (c)(6) nonprofit corporation and since 1982
has been the national membership association for colleges and programs
of acupuncture and Oriental medicine (AOM) in the U.S. All of the
Council's member colleges, which are located in 21 states in the U.S.,
have been accredited or pre-accredited by the Accreditation Commission
P.O. Box 65 120 • Ba.l rimore.MD21209 1(410)464-6040 (410)464-6042
Committed to Excellence in Acupm1dure and Onenta! 1i1etft'c/ne tdticaiion
2
for Acupuncture and Oriental Medicine (ACAOM), the national agency
recognized by the U.S . Department of Education for the accreditation of
AOM educational programs. The mission of the Council is to support its
inember institutions to deliver educational excellence and quality patient
care. Three of the Council's 56 member colleges are located in Texas. 1
The Council publishes an acupuncture safety manual entitled
Clean Needle Technique (C1VT) Manual- Best Practices for
Acupuncture Needle Safety and Related Procedures (7th ed. 2015). 2 This
manual represents evidenced-based best safety practices in the use of
acupuncture needles and related techniques and forms the basis of CNT
courses that the Council offers throughout the U.S. to acupuncture
students who have been professionaJly trained at ACAOM-approved
AOM programs. Successful completion of the Council's CNT course is
required for any person who wishes to obtain national certification in
acupuncture by the National Certification Commission for Acupuncture
1
These are the American CoUege of Acupuncture and Oriental Medicine (Houston), AOMA
Graduate School of Integrative Medicine (Austin). and Texas Health and Science University
(Austin). For a complete list of all member schools of the Council, see
http://www.ccaom.org/members.asp?sort=state. Concerning the Council generally, see
www.ccaom.org.
2 See http://'www.ccaom.org/downloads/7thEditionManual EnglishPDFVersion.pdf [hereinafter
cited as CNT ManuaIJ.
3
and Oriental Medicine (NCCAOM).3 Forty-four states plus the District
of Columbia recognize NCCAOM' s certification or examinations as a
prerequisite for acupuncture licensure.4 As noted in TAAOM's brief, an
applicant for an acupuncture license in Texas must pass NCCAOM's
national certification examinations.5 In addition, successful completion
of the Council's national CNT course and practical examination is also
mandated under Texas law. 6
In addition to fully supporting the position of the TAAOM, the
Council would like to emphasize in the succeeding discussion the
importance this court's decision will have upon public safety in Texas
for those patients seeking acupuncture treatments from unqualified
chiropractors, rather than from professionally trained acupuncturists who
have completed their education and training at an ACAOM accredited
AOM program and who are currently subject to the regulation of the
Texas State Board of Acupuncture Examiners.
3
See file:!!IC :/Users/CCA OM/Downloads/CNT%20Requirements.pdf.
4
See http://www.nccaom.org/regulato1y-affairs/state-licensure-map. Most recently, North
Dakota authorized recognition of the national ceriification exams ofNCCAOM. See N.D. Cent.
Code § 43-6105(l)(b), added by Sen. Bill No. 2 191 (2015),
https://legiscan.com/ND/text/21 91 /20J5.
5
TAAOM Brief at 30.
6
Id. at 29.
4
There is a significant disparity in the training that a chiropractor
receives in acupuncture, which is an adjunctive therapy a chiropractor
may seek to incorporate into his/her practice, and the amount of training
a professionally trained acupuncturist receives. Typically, a chiropractor
receives about 100 hours or less in acupuncture instruction. 7 Under the
accreditation standards of ACAOM, the minimum length of a
professional acupuncture curriculu1n must be at least three academic
years and composed of at least 705 hours in Oriental medical theory,
diagnosis, and treatment techniques in acupuncture and related studies
and 660 hours in clinical training.8 That is a total minimum of 1,365
hours of education and training solely in acupuncture, which is distinct
from additional education m subject areas not directly relating to
acupuncture per se, such as the biomedical sciences, counseling,
7
Id. at 2.
8
ACAOM, Accreditation Manual-Structure, Scope, Process, Eligibility Requirements, and
Standards 26 (July 2012), Standard 8.la. See
http://www.acaom.org/documents/accreditation manual 712.pdf. The minimum length of an
Oriental Medicine curriculum, which includes the study of Chinese herbology in addition to
acupuncture, is at least four academic years and consists of at least 2,625 hours of which there
are 705 hours in Oriental medical theory, diagnosis, and treatment techniques in acupuncture and
related studies; 450 hours in didactic Oriental herbal studies; and 870 hours in integrated
acuptmcture and herbal clinical training. Id.
5
communications, ethics, and practice management that are commonly
taught in most health education programs.
The gross disparity in acupuncture training between these two
health professions makes a difference not only from the perspective of
achieving efficacy in treatment, but most importantly in protecting the
safety of the public in Texas. As indicated in the Council's authoritative
CNT Manual, acupuncture is associated with rare, but predictable
adverse events. 9 These include bleeding, bruising, local pain, nerve
injury, infections, and organ puncture and. pneumothorax caused by
needling at an unsafe depth. "Given the nature of acupuncture needling,
it is difficult to prevent all bleeding and bruising." 10 In addition, there is
a risk that needles may break or become stuck during treatment, or the
practitioner may forget to remove the needles from the patient. The
arteries and larger veins should be avoided when acupuncture needling
is performed and special consideration should be given when needling
the scalp and pinna/auricle of the ear because bleeding is more common
9
CNT Manual at 3-23.
(http://www.ccaom.org/downloads/7thEditionManuaJEnglishPDFVersion.pQf).
10
Id. at 4.
,-
6
due to the vascular anatomy of these structures. Among the factors that
may produce needle site pain is poor technique by the practitioner,
needling into dense connective tissue, or needling into a nerve.
The documented presence of bleeding after acupuncture and the
risk for nerve injury and pneumothorax indicate that acupuncture
involves puncturing body tissues. Accordingly, the studies cited in the
CNT Manual amply support a conclusion by this court that acupuncture
is an incisive needling procedure and thus prohibited for chiropractors
11
under Texas law.
The extensive training 1n acupuncture that professional
acupuncturists in Texas must complete, coupled with the further
statutory mandate that acupuncture licensees in Texas must successfully
pass the Council's national needle safety course based upon the CNT
Manual, ensures that proper needle safety protocol is comprehensively
addressed including the risks associated with adverse needling events.
This degree of training, hov.rever, is not one that chiropractors in the
11
As stated in the TAAOM Brief, " ... the Chiropractic Chapter limits chiropractic to treatment of
the musculoskeletal system and expressly prohibits chiropractors from perfonnirig incisive
procedures, with only one narrow exception for the use of needles for diagnostic blood draws."
TAAOM Brief at 1.
7
state are currently undertaking because of the Chiropractic Board's
contention that chiropractors practicing acupuncture in Texas are not
subject to the regulatory jurisdiction of the Texas State Board of
Acupuncture Examiners.
In view of the significant public safety issues noted above and for
all of the reasons so compelling presented in the TAAOM brief, the
Council respectfully requests this court to reverse the judgment of the
trial court and render judgment in favor of TAAOM.
Sincerely,
~iJ7;,
Jason Wright, MS, LAc
President
2360 State Rte. 89
Seneca Falls, NY 13148
Tele: (315) 568-3268
E-mail: jwright@nycc.edu
8
CERTIFICATION OF AMICUS
I certify on behalf of Amicus Curiae, that no persons other than
Amicus Curiae or its counsel made any monetary contribution to the
preparation or submission of this Amicus letter.
·~ / - . tJ,,,/lu
/
Jason Wright, MS, LAc
President
CERTIFICATION OF COMPLIANCE
I certify on behalf of Amicus Curiae, that thi s Amicus letter
contains 1, 184 words according to the word count feature of the
software used to prepare this Amicus letter.
-~-;/t:. ;J~·I·*
I
Jason Wright, MS, LAc
President
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 23, 2015 .
9
Joe H. Thrash Craig T. Enoch
Assistant Attorney General Melissa A. Lorber
Administrative Law Division Shelby O'Brien
P.O. Box 12548 Enoch Kever PLLC
Austin, Texas 78711 600 Congress Ave.
Joe.Thrash@texasatto1neygeneral.gov Suite 2800
Austin, Texas 78701
sobrien@enochkever.com
<' ~~ fa),,,;/.J.
/
Jason Wright, MS, LAc
President
Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity
Combined Opinion