Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 5,2004

Mr. Don W. Brown Opinion No. GA-0144
Commissioner of Higher Education
Texas Higher Education Coordinating Board Re: Whether schools of acupuncture are subject
P.O. Box 12788 to regulation by the Texas Higher Education
Austin, Texas 78711 Coordinating Board under chapter 6 1, subchapter
G of the Education Code, or whether they are
exempt from regulation under section 61.303(a) of
the code (RQ-009 1-GA)

Dear Mr. Brown:

You ask whether schools of acupuncture are subject to regulation by the Texas Higher
Education Coordinating Board (the “THECB”) under chapter 6 1, subchapter G of the Education
Code, or whether they are exempt from regulation by the THECB under section 61.303(a) of the
code.’

Chapter 61 of the Education Code creates the THECB, a state agency, and declares that “[i]t
shall perform only the functions which are enumerated in [chapter 6 1] and which the legislature may
assign to it.” TEX. EDUC. CODE ANN. 8 61.021(a) (Vernon 1996). Subchapter G of chapter 61
provides for the regulation of private postsecondary educational institutions, which term is defined
as an educational institution which:

(A) is not an institution of higher education as defined by Section
61.003;

(B) is incorporated under the laws of this state, maintains a place of
business in this state, has a representative present in this state, or
solicits business in this state; and

(C) furnishes or offers to furnish courses of instruction in person, by
electronic media, or by correspondence leading to a degree or
providing credits alleged to be applicable to a degree.

‘See Letter from Don W. Brown, Commissioner of Higher Education, Texas Higher Education Coordinating
Board, to Honorable Greg Abbott, Texas Attorney General, at l-4 (Aug. 5, 2003) (on file with Opinion Committee)
[hereinafter Request Letter].
Mr. Don W. Brown - Page 2 (GA-0144)

Id. 5 61.302(2) (Vernon Supp. 2004). Section 61.304 empowers the THECB to regulate every
private postsecondary educational institution: “A person may not grant or award a degree on behalf
of a private postsecondary educational institution unless the institution has been issued a certificate
of authority to grant the degree by the board in accordance with the provisions of this subchapter.”
Id. 9 61.304 (Vernon 1996).

You note that there are four schools of acupuncture in Texas* and that the THECB “has never
granted a certificate of authority” to any of the Texas acupuncture schools “to allow them to award
degrees, or to use the protected term ‘college.” Request Letter, supra note 1, at 2. The four Texas
schools of acupuncture fall within the definition of “[plrivate postsecondary educational institution”
in section 61.302. TEX. EDUC. CODE ANN. 5 61.302(2) (V emon Supp. 2004). None of them are
“[i]nstitution[ s J of higher education” under section 6 1.003, see id. 8 6 1.003( 8); each “is incorporated
under the laws of this state, maintains a place of business in this state, has a representative present
in this state, or solicits business in this state”; and each of them “furnishes or offers to furnish
courses of instruction in person, by electronic media, or by correspondence leading to a degree or
providing credits alleged to be applicable to a degree.” Id. tj 61 .302(2).3

Your question is whether the exemptions of section 61.303(a) apply to the schools of
acupuncture operating in Texas. See Request Letter, supra note 1, at 2-4. That provision states:

(a) The provisions of this subchapter do not in any way apply to an
institution which is fully accredited by a recognized accrediting
agency, or an institution or degree program that has received approval
by a state agency authorizing the institution’s graduates to take a
professional or vocational state licensing examination administered
by that agency. The granting of permission by a state agency to a
graduate of an institution to take a licensing examination does not by
itself constitute approval of the institution or degree program required
for an exemption under this subsection.

TEX. EDUC. CODE ANN. 8 61.303(a) (Vernon Supp. 2004). Section 61.303(a) essentially furnishes
two exemptions from the THECB’s authority to require a school of acupuncture to obtain a
certificate of authority in order to operate. The first exemption applies when the institution is “fully
accredited by a recognized accrediting agency.” Id. Although we have received several briefs
indicating that the four Texas schools of acupuncture are accredited by the Accreditation

*The four schools of acupuncture are the Texas College of Traditional Chinese Medicine, located in Austin; the
Academy of Oriental Medicine at Austin; the Dallas College of Oriental Medicine; and the American College of
Acupuncture and Oriental Medicine, located in Houston. See http://www.acaom.org/.

‘See Texas College of Traditional Chinese Medicine, avazlable at http://www.texastcm.edu/; Academy of
Oriental Medicine at Austin, available at http://www.aoma.edu/; Dallas College of Oriental Medicine, availabZe at
http://www.diaom.corn/; American College ofAcupuncture and Oriental Medicine, available at http://www.acaom.edu/.
Mr. Don W. Brown - Page 3 (GA-0144)

Commission for Acupuncture and Oriental Medicine (the “ACAOM”),4 an agency recognized by the
United States Department of Education as the national accrediting agency for schools of
acupuncture,5 for purposes of section 61.303(a) of the Education Code, a “[rlecognized accrediting
agency” is “an association or organization so designated by rule of the [THECB] for purposes of this
subchapter.” Id. 5 61.302(8). You state that, while “[a]11 four acupuncture schools that operate in
Texas at this time are accredited by the ACAOM, . . . this is not an accrediting agency that is
recognized” by the THECB. Request Letter, supra note 1, at 3. Thus, the first exemption of section
61.303(a) is not applicable to schools of acupuncture operating in Texas because such institutions
are not “fully accredited by a recognized accrediting agency” as that term is defined in section
61.302(g). See TEX. EDUC. CODE ANN. §§ 61.302(8), .303(a) (Vernon Supp. 2004).

The second exemption applies to “an institution or degree program that has received approval
by a state agency authorizing the institution’s graduates to take a professional or vocational state
licensing examination administered by that agency.” Id. 8 61.303(a). The exemption includes the
caveat that “[t]he granting of perrnission by a state agency to a graduate of an institution to take a
licensing examination does not by itself constitute approval of the institution or degree program
required for an exemption under this subsection.” Id. It is clear from this caveat that in order for
the second exemption to apply, a state agency must do more than permit graduates of an institution
to take the agency’s licensing examination. Rather, the second exemption requires that a state
agency has approved the institution or degree program. Thus, we must determine whether any other
law authorizes the Texas State Board of Acupuncture Examiners (the “TSBAE”) to approve an
“institution or degree program.”

Section 205.101 (a) of the Occupations Code sets forth that “[slubject to the advice and
approval of the [Texas State Board of Medical Examiners],” the TSBAE 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;

4See Briefs from Michele Shackelford, General Counsel, Texas State Board of Medical Examiners (Oct. 3,
2003); Jill Warren, Bracewell & Patterson, L.L.P. (Oct. 3, 2003); Claire Bondy Hyder & Leslie Lynn Myers, Texas
Association ofAcupuncture and Oriental Medicine (Sept. 19,2003); Jimmie L. Coombes, Academy of Oriental Medicine
at Austin (Sept. 1,2003) (all briefs on file with Opinion Committee).

‘See http://www.ed.gov/admins/fmaid/accred/accreditationqg6.html; http://www.acaom.org.
Mr. Don W. Brown - Page 4 (GA-0144)

(5) prescribe the application form for a license to practice acupunc-
ture;

(6) make recommendations on applications for licenses to practice
acupuncture;

(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.

TEX. OCC. CODEANN. 9 205.101 (a) (Vernon 2004). Moreover, “[tlhe acupuncture board does not
have independent rulemaking authority.” Id. 5 205.101 (b). On the other hand, section 205.206 of
the Occupations Code provides:

(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 [now
the ACAOM] .6

Id.5 205.206.

6See http://www.acaom.org/accdtd-cndtdschls.htm.
Mr. Don W. Brown - Page 5 (GA-0144)

Although the TSBAE is directed to “establish minimum education and training requirements
necessary for the acupuncture board to recommend that the medical board issue a license to practice
acupuncture”’ id. 5 205.101 (a)(2), this requirement is not equivalent to the authority to approve an
“institution or degree program” offered by a school of acupuncture. See TEX. EDUC. CODEANN.
8 61.303(a) (V emon Supp. 2004). The TSBAE’s duty is directed at “minimum education and
training requirements” that individuals must meet. See TEX. OCC. CODE ANN. 4 205.101(a)(2)
(Vernon 2004). Section 61.303(a) of the Education Code makes this point abundantly clear in
declaring that “[tlhe granting of permission by a state agency to a graduate of an institution to take
a licensing examination does not by itselfconstitute approval of the institution or degree program
required for an exemption under this subsection.” TEX. EDUC. CODEANN. 8 61.303(a) (Vernon
Supp. 2004) (emphasis added). Moreover, although subsection (b) of section 205.206 declares that
the TSBAB may establish “standards for the . . . course of instruction of an acupuncture school,”
TEX. OCC. CODEANN. $205.206(b) (Vernon 2004)’ we do not believe that this language is specific
enough to permit the TSBAE to approve an “institution or degree program.” TEX.EDUC. CODEANN.
9 61.303(a) (V emon Supp. 2004).

By contrast, the Board of Nurse Examiners is specifically empowered to “approve schools
of nursing and educational programs that meet the board’s requirements” as well as “deny or
withdraw approval from a school of nursing or educational program that fails to meet . . . prescribed
. . . standard[s].” TEX. OCC. CODEANN. 9 301.157(b)(4)-(5) (Vernon 2004). And section 301.252
declares that the Board of Nurse Examiners may waive a particular licensing requirement “if the
applicant provides satisfactory sworn evidence that the applicant has completed an acceptable level
of education in. . . a professional nursing school approved by the board.” Id. 8 301.252(b)( 1). Thus,
when the legislature intends to confer on a licensing board the authority to approve an institution or
degree program, it knows how to do so. We conclude, therefore, that because the TSBAE is not
empowered to approve any “institution or degree program,” a school of acupuncture is not excepted
from regulation by the THECB by the second exemption of section 6 1.303(a) of the Education Code.
See TEX. EDUC. CODEANN. § 61.303(a) (Vernon Supp. 2004).

Accordingly, in answer to your specific question, acupuncture schools are not exempt from
regulation by the THECB under section 61.303(a) of the Education Code. Those schools may not
use the protected term “college” or award degrees without approval by the THECB.
Mr. Don W. Brown - Page 6 (GA-0144)

SUMMARY

Schools of acupuncture are subject to regulation by the Texas
Higher Education Coordinating Board.

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee