Untitled Texas Attorney General Opinion

>- OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

May 23,200l

Dr. Cynthia S. Vaughn, D.C. Opinion No. JC-0379
President, Texas Board of
Chiropractic Examiners Re: Whether a licensed acupuncturist may
333 Guadalupe, Suite 3-825 perform “spinal manipulation” (RQ-0308-JC)
Austin, Texas 78701-3942

Dear Dr. Vaughn:

You have asked this office whether “spinal manipulation” is within the practice of
acupuncture. As we understand it, your question relates specifically to a certain form of acupressure
technique called Tui Na. The Texas State Board of Acupuncture Examiners (“BAE”) and State
Board of Medical Examiners (“BME”), which together regulate the practice of acupuncture in this
state, see TEX. OCC. CODE ANN. 8 205.101 (Vernon 2001) assert that this technique is within the
practice of acupuncture as a form of “energy flow exercise?

This office has generally deferred to the determinations made by boards regulating health
professions as to what constitutes the scope of the practice they regulate. See Tex. Att’y Gen. Op.
Nos. DM-423 (1996) at 3 (hyperbaric oxygen therapy regulated by Board of Medical Examiners to
the extent it constitutes practice of medicine, and by Board of Podiatric Medical Examiners to the
extent it constitutes practice of podiatry); DM-443 (1996) at 4 (needle electromyography constitutes
both practice of medicine and practice of physical therapy). This deference is an application to the
licensed health professions of the general rule that the “construction of a statute by an agency
charged with its execution is entitled to serious consideration so long as the construction is
reasonable and does not contradict the plain language of the statute.” Simplex Elec. Corp. v.
Holcomb, 949 S.W.2d 446,447 (Tex. App.-Austin 1997, writ denied). In this instance, however,
while we do not question the BAE’s and BME’s decision that Tui Na is a form of energy flow
exercise, we note that the definition of acupuncture in the Occupations Code defines the practice to
include only the “recommendation,” rather than the “administration” of such exercises. TEX. OCC.
CODE ANN. 0 205.001(2)(B) (V emon 2001). Accordingly, the administration of such exercises is
not within the statutory definition of acupuncture.

‘See Letter from Michele L. Shackelford, General Counsel, Texas State Board of Medical Examiners, to Susan
D. Gusky, Chair, Opinion Committee, Office of the Attorney General, at 5 (Jan. 19, 2001) (on file with Opinion
Committee) [hereinafter BME Briefj.
Dr. Cynthia S. Vaughn, D.C. - Page 2 (JC-0379)

As we understand it, your concern stems from incidents in which licensed acupuncturists
have engaged in activity which you regard as within the practice of chiropractic, but which the BAl3
has declared to be within the practice of acupuncture. Notably, in an instance you detail in the
attachments to your request letter, an acupuncturist performed what you regard as a spinal
adjustment in a manner that may have been deleterious to the patient. In that case, the BAE found
that the procedure involved was Tui Na, which “involves applying acupressure to acupoints,
channels, and muscle groups. This procedure is considered to be within the scope of practice of
acupuncture.“2 You dispute this determination, and accordingly ask whether “spinal manipulation”
is within the practice of acupuncture.

The practice of acupuncture is defined in section 205.001 of the Occupations Code:

“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; and

(B) the administration of thermal or electrical treatments or the
recommendation of dietary guidelines, energy j7ow exercise, or
dietary or herbal supplements in conjunction with the treatment
described by Paragraph (A).

TEX. OCC. CODE ANN. 8 205.001(2) (Vernon 2001) (emphasis added).

The practice of chiropractic, on the other hand is defined inter alia as:

(1) us[ing] objective or subjective means to analyze, examine, or
evaluate the biomechanical condition of the spine and
musculoskeletal system of the human body; [and]

(2) perforrn[ing] nonsurgical, nonincisive procedures, including
adjustment and manipulation, to improve the subluxation complex or
the biomechanics of the musculoskeletal system; . . . .

Id. tj 201.002(b).

*Letter from Dr. Cynthia S. Vaughn, D.C., to Honorable John Cornyn, Attorney General of Texas (Nov. 1,
2000) (on file with Opinion Committee) (see Attachment B - Letter from Becky Nichols, Chief of Investigations, Texas
State Board of Acupuncture Examiners, to Kevin D. Kanz, D.C. (Aug. 12, 1999)).
Dr. Cynthia S. Vaughn, D.C. - Page 3 (JC-0379)

We note that neither of these statutes refers to “spinal manipulation,” the term about which
you inquire. The chiropractic statute does refer to “manipulation, to improve the subluxation
complex or the biomechanics of the musculoskeletal system.” Id. However, the statute defines none
of these terms.

When a statute does not define a particular term, we are charged to give the term its ordinary
meaning. See TEX. GOV’T CODE ANN. 8 3 12.002 (Vernon 1998). “Manipulate” is defined by the
Oxford English Dictionary as “[t]o handle, esp. with dexterity; to manage, work, or treat by manual
(and, by extension, any mechanical) means.” IX OXFORDENGLISHDICTIONARY3 19 (2d ed. 1989).
“Manipulation” is defined in the same source as “[tlhe handling of objects for a particular purpose;
manual management; in Surgery, the manual examination of a part of the body.” Id.

The BME argues:

There are several types of licensed practitioners in Texas whose work
involves manipulation in the spinal area. To adopt the definition of
spinal manipulation as set out by Chiropractic Law could exclude
anyone other than licensees of the Chiropractic Board from
performing procedures involving the spinal area. This would have
the effect of one regulatory board establishing and enforcing the
scope of practice for licensees not under its authority.

BME Brief, supra note 1, at 4.

However, section 201.003 of the Occupations Code specifically exempts registered nurses,
vocational nurses, persons providing spinal screening services, physical therapists, massage
therapists, and massage therapy instructors from regulation under chapter 201, relating to
chiropractors, and further states that the chapter “does not limit or affect the rights and powers of a
physician licensed in this state to practice medicine.” TEX. Oct. CODE ANN. 6 201.003(a), (b)
(Vernon 2001). We note that licensed acupuncturists are not listed among those exempted.

The BME asserts that the specific kind of spinal manipulation at issue here is a recognized
form of “energy flow exercise” within the meaning of section 205.001(2)(B) of the Occupations
Code, a term which, they inform us “includes acupressure and Oriental bodywork.” BME Brief,
supra note 1, at 3. “Within acupuncture, there are different therapies involving touching the patient
including massages, Tui Na, and Shiatsu. Acupressure does not involve severe thrusting as that
described by the chiropractic definition of spinal manipulation. Instead, acupressure involves some
gentle, subtle, gross and/or specific pressure to acupuncture points.” Id.
Dr. Cynthia S. Vaughn, D.C. - Page 4 (JC-0379)

This office has and professes no expertise with regard to matters such as these. CL’ Tex.
Att’y Gen. Op. No. JC-0211 (2000) at 1 (“This office does not have the expertise to make the
decision as to whether a particular act is being done to ‘hair’ or ‘beard.“‘). However, while the BAE
and BME doubtless are better able to determine what constitutes an energy flow exercise or spinal
manipulation than are we, the statutory definition of the practice of acupuncture, upon which we
must rely, does not encompass the administration of such exercise, but only its recommendation4
Indeed, the subsection contrasts such “recommendation” with “the administration of thermal or
electrical treatments,” by permitting an acupuncturist to administer thermal or electrical treatments
and to recommend dietary guidelines, energy flow exercise, or dietary or herbal supplements. TEX.
Oct. CODE ANN. 8 205.001(2)(B) (V emon 2001). We cannot therefore concur with the view that
the administration of such energy flow exercise is within the statutory definition of the practice of
acupuncture.

4While there is some evidence that the administration of “energy flow exercise” as within the practice of
acupuncture may have been considered in a conference committee report, the actual text of the statutory definition as
adopted reads “recommendation of. . . energy flow exercise.” Act ofMay 13, 1999,76thLeg., R.S., ch. 388, 0 1, sec.
205.001,1999Tex.Gen.Laws 1431,161l (emphasisadded). SeeCONFERENCECOMM.RPT.,Tex. S.B. 1062,73dLeg.,
R.S. (1993) (Conference Committee Report, May 29,1993, comparing Senate and House versions of the bill, notes that
“house version strikes the term ‘therapeutic’ [exercise] and replaces it with the terms ‘energy flow’ [exercise] to describe
the types of exercises allowed in acupuncture treatments.“) (emphasis added)).
Dr. Cynthia S. Vaughn, D.C. - Page 5 (JC-0379)

SUMMARY

While the technique called Tui Na, which involves some
manipulation of the spinal area, may be an energy flow exercise
within the meaning of section 205.001 of the Texas Occupations
Code, the administration of such exercise is not within the statutory
definition of the practice of acupuncture.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee