Untitled Texas Attorney General Opinion

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DAN MORALES
ATTORNEY
GENERAL September 23,1996

Bruce A. Levy, M.D., J.D. Opiion No. DM-415
Executive Director
Texas State Board Re: Whether the practice of acupuncture
of Acupuncture Examiners is within the scope of practice for a
1812 Centre Creek Drive, Suite 300 licensed Texas chiropractor and related
P.O. Box 149134 questions (RQ-853)
Austin, Texas 787149134

Dear Dr. Levy:

You inform us that certain health-care practitioners, who are licensed as
chiropractors but not as acupuncturists.1 have been advertising that they perform. and
presumably do perform, acupuncture at their chiropractic clinics. You ask three questions
in an attempt to determine whether this phenomenon indicates a violation of V.T.C.S.
article 4495b, subchapter F, which governs the practice of acupuncture, or V.T.C.S.
article 4512b, which governs the practice of chiropractic. Specifically, you seek our
opinion regarding the following issues:
1. Whether the practice of acupuncture is within the scope of
practice for a licensed Texas chiropractor72
2. Whether licensure as an acupuncturist is required for a
licensed Texas chiropractor to engage in the practice of acupuncture?
3. If the answer to the first question is yes and the answer to the
second question is no, whether advertising the practice of
acupuncture by a licensed chiropractor violates statutes prohibiting
false or misleading advertising if the chiropractor fails to indicate in
the advertisement that he or she is not licensed by the Texas State
Board of Acupuncture Examiners?
We will begin by discussing the two statutes that are most relevant to your questions,
V.T.C.S. article4495b, subchapterF, andV.T.C.S. article4512b.

The legislature enacted subchapter F of article 4495b to provide for the
“establishment of statewide standards for the training, education, and discipline of

‘Anantpunchvistia a QraaitiOnn ofacupmchur.SeeV.T.C.8.art.46’5b.0 6.020).
Bruce A Levy, M.D., J.D. - Page 2 (DM-415)

acupuncturists and for “an orderly system of regulating the practice of acupuncture.”
V.T.C.S. art. 4495b, 8 6.01. See generuZ&Attorney General Opiion DM-336 (1995) at
l-2 (summa&mg V.T.C.S. art. 495b, subch. P). Section 6.02(l) defines “acupuncture”
as foliows:
(A) the insertion of an acupuncture needle and the application
of moxibustions 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 thermaJ or electricaJtreatments or the
recommendation of dietary guidelines, energy flow exercise, or
dietary or herbal supplements in conjunction with the treatment
described by Paragraph (A) of this subdivision.* Footnotes added.]
No individual may practice acupuncture in this state unless he or she has obtained
a license to practice acupuncture 6om the Board of Medical Examiners, upon the
recommendation of the Board of Acupuncture Bxaminerss V.T.C.S. art. 4495b, 3 6.06;
see also id. $5 6.05(a)(6), 6.10. A “health care profesSional licensed under another
subchapter” of the Medical Practice Act or another statute may practice acupunctu~
without obtaimng a kense from the Board of Medical Bxaminers,but only if the practice
of acupuncture is “within the scope of’ the health care profesSional’s kense. Id.
8 6.03(a). Any individual who practices acupuncture without a license to practice

~~~on”ir’[c]a~onbymauLF~acylindcros~dcotton~Eallcda~
QhCCd 011thC SkiIt and fid pt the top.” TAFER’S Cycux~~~c MEBXL D~C~ONARYM-66
(Clayton L. Thomas, M.D., MPH, al.. 13Ib cd. 1977); see ah An&mm Y. Edlard, 498 F. Supp. 1038,
1043 11.14(S.D. Tcx. 1980). Moxibuslion is ‘[u]scd to produce c.umWnitation.” TABER’S~YCUXEDIC
MEDIC.%DICTIONARY M&i
Bruce A Levy, M.D., J.D. - Page 3 (DM-415)

acupuncture or a license encompassing the practice of acupuncture commits a class A
misdemeanor. Id. 8 6.12(b).

Section 1 of article 4512b, V.T.C.S., lists three acts constituting the practice of
chiropractic. As amended by the Seventy-fourth Legislature, section 1 provides:
(a) A person shall be regarded as practicing chiropractic within
the meaning of this Act ifthe person:
(1) uses objective or subjective means to analyze, examine,
or evaluate the biomechanical condition of the spine and
musctdoskeletal system of the htmtan body.
(2)pet-formsnonsurgica&nonincisiveprocedures including
but not limited to adjustment and manipulation, in order to
improve the subluxation6 complex or the biomechanics of the
musculoskeletalsysteq or
(3) holds himself out to the public as a chiropractor of the
human body or uses the term “chiropractor,” ‘chiropractic,”
“doctor of chiropractic,” ‘DC.,” or any derivative of those
tetms in CoMection witb his name.’

Act of May 29. 1995. 74th Leg., RS.. ch. 965, 5 13, 1995 Tex. Sess. Law Serv. 4789,
4802 (footnotes added). Prior to the e&&e date of the 1995 amendments, article 4512b
did not limit the scope of chiropractic to only nonincisive, nonsurgical procedures.* See
id.

Section 13a of V.T.C.S. article 4512b, which the Seventy-fourth Legkkure also
amended, see id. 5 18, 1995 Tex. Sess. Law Serv. 4789, 4803, explicitly excludes from
the practice of chiropractic, among other things, “incisive or surgical procedures.” For
purposesofarticle4512b,thephrase

‘%ubhxaIion” is “a panid didofxtia& a yeain” XVII t33ma13 E~ousti DICnONmY 42 (26
ed. 1989).

VhcScvaity-fowthL@3latmiMertalIhewordnMtbcbumsnbody*~“asa
dbpmctof and “or WCSthe tam” See Ad ofhfay 29.1995,74tb Lg., R.S., cl~ 965, # 13.1995 Ta
Seaa. Law Serv. 4789,4802 (amatdiqV.T.C.8. art. 4512b. 0 l(a)(3)).

%QattiaIlar*Qriortolmmrfmcnt by tk Sevay-ftmttb Le&labq V.T.C.S. utick 4512b.
mtuionl(a)(2)pnwidaithatanindikhl~~iftkibciDdividuat~
. .
niaqam,oroIber~inoIdertolmQnweaubl~atlle~cadtbc
nxtndoskelti syxten~” See Aa ofMay 29.1995.74th Leg. RS.. ch 965, p 13.1995 Ta Sets. JAW
&IV. 4789.4802 @meding V.T.C.S. art. 4512b, P l(a)(2)).
Bruce A Levy, M.D., J.D. - Page 4 (DM-415)

“incisive or surgical procedure” includes but is not limited to making
an incision into any tissue, cavity, or organ by any person or
implement. It does not include the use of a needle for the purpose of
drawing blood for diagnostic testing.9
V.T.C.S. art. 4512b, 3 13a(b) (footnote added).

A violation of article 4512b results in the revocation or ampension of a license, or
the probation or reprimand of a licensee. V.T.C.S. art. 4512b, 8 14(a); see aJso id.
6 14a(l). The Texas Board of Chiropractic Firmminersmay assess an administrative
penalty in an amount not to exceed $1,000 for each day the violation occurs or continues.
See id. 85 14(a), 19a(a). In addition, a person who violates article 4512b is liable to the
state for a civil penalty of Sl,OOOfor each day the violation occurs or continues. Id.
8 lww

For purposes of this opinion, we assume a chiropractor practices acupuncture to
improve the subluxation complex or the biomechanicsof the musculoskeletal system. See
id. 5 l(a)(2). Central to our determination of whether the practice of acupuncture is
“within the scope of’ a chiropractic license, see V.T.C.S. art. 4495b, $6.03(a), is a
consideration of whether acupuncture is an “incisive or surgical procedure” for purposes
of section 13a(b) of article 4512b. lf acupuncture is an incisive or surgical procedure,
article 4512b, section 13a(s)(l) excludes it from the practice of chiropractic, and a person
who is licensed only as a chiropractor may not perform it..

The word “incisive” means “cutting; having the power of cutting.” TABER’S
C~cLopEDlcMEDICAL DICI’IONARY I-12 (Clayton L. Thomas, M.D., M.P.H., ed., 13th
ed. 1977). It also means “cutting with a sharp edge.” Vll THE CIEIRD EJIGIJSH
DICTIONARY 796 (2d ed. 1989).

The word “surgical”per&s to surgery, which is the “branch of medicine dealing
with manual and operative procedures for correction of deformities and defects, repair of
injuries, and diagnosis and cure of certain diseases.” TABER’SCYCLOPEDIC MEDICAL
DICIIONARY. supru, at S-130; see &o id at S-131 (defining ‘surgical”). For purposes of
the Medical Practice Act, V.T.C.S. article 4495b, the legislature has defined the term
“surgery” to include “surgical services, surgical procedures, surgical operations, and the
procedures described in the surgery section of the Common Procedure Coding System ills
adopted by the Health Care Fiicing Administration of the United States Department of
Health and Human Services.“t” V.T.C.S. art. 4495b. 8 l.O3(a)(l5).
Bruce A Levy, M.D., J.D. - Page 5 (DM-415)

When interpreting a statute, a court must diligently attempt to ascertain legislative
intent. Gov’t Code 3 312.005. Although we question whether a court ordinarily would
classify acupuncture as “incisive”*tor “surgicaJ,“tswe believe the legislature intended that
V.T.C.S. artjcle 4512b, section 13a(b) be construed to classify acupuncture as an “incisive
or surgical procedure”; we tiuther believe a court would reach a conclusion consistent
with the legislative intent. The legislature expressly excluded fiorn the range of
procedures that are incisive or surgical %e use of a needle for the purpose of drawing
blood for diagnostic testing.” We deduce that the legiskre considered the use of a
needle for the purpose of drawing blood to be an incisive or surgical procedure, and we
find no distinction between the use of a needle in a diagnostic ckcum&mce and the use of
acupuncture needles.

Additionally, we note that, during the Seventy-fourth Legislature, a witness
described acupuncture as “a mild form of surgery”to the Senate Committee on Health and
Human Setvices. See Hearings on S.B. 718 Before the Senate Comm. on Health and
Human Sendces, 74th Leg., R.S. (Apr. 12,X95) (statement of Dee Ann Newbold, Texas
Acupuncture AswciaUon) (tape available fbom Senate Statf Services). The legiskme
may well have believed, therefore, that acupuncture was among those “incisive” and
“surgicaJ”procedures article 4512b, sections l(a)(2) and 13a(b) exclude gem the practice
of acupuncture.

wpmccureua~~dtbe~“aAwpmchmSoc~ofKw.
L’COMSh8VCdCSdbCd
v. KmLuz3ateEd. o/HeahgArts, 602 P.2d 1311.1311 (l&a. 1979). or “a &mncmiq~bodilyticriug”
see People v. Amber, 349 N.Y.S.26 604. 610 (N.Y. Sup. Ct 1973), as well as an ?nsadon- &
‘manipuhtion” of wires of nce&q see An&eweY. Babd, 498 F. Sqp. 1038, 1043 (SD. Ta 1980);
Peoplev. Roes, 514N.E.Zd993.993.994 (Ill. 1%7);AwpurchvrSoc~of?hn., 602P.2dat 1312;.Wate
v.Rlch, 339N.E.Zd630.631 (Ohio 1975);Amber,349N.Y.S.2dat611.

“Wefindno0~cl~~om1tthathuamskcdwlwtl~rtbcpndiceof~~e~
rar.&ay~tmt~~tcIhat~amundtbccaunbyCmnhy~ontbeimue. Forexample,thcSqremc
delmmedtbat~l6notaugayferpvporaofthcKao6assutatca
kfaustvupnncturriSWt”~tOrparste~-ti6SWfWtkpcuporc,OfQCW&UjOIlfOI
trratmcnf re~lactmwt or runoval of aQioted partr.” Awpvnchm Sot ), of Kan. Y. Kwwe State Ed. of
Healing Arts. 602 P.2d 1311. 1315-16 &an. 1979); accord People v. Roar. 514 NE26 993, 997 (Tll.
1987); see &o Stute Y. Wan, 528 P.2d 594.5% (Or. 1974) (nnnmprizing wltboutKGMsidaing.lower
OOUtl’StiIdiUgtIUlt~ didlWtCOMtltUtCllliWl6UIgCIy).

OIlthCOtbbi3Od,thCW~COUttOfAQQWlSlISS&tWUiWdthUropoDchne-
surgay bccauac it iwoks “the pwehation of human tima.” syotc v. Wilwn, 528 P.2d 279,281 (Wash
Ct. AQQ. 1974); accord Kelley Y. Rqickas, 270 N.W.2d 665.669 (Mich Ct. m. 1978) (citing Nets
Reguhting the Pm&w ofAwpuncturr: Rewnt Devekpwn~ in Gd@mia, 7 U.C. DAVISL. &V. 385,
391-92.3% (1974)); see also Che!?y Y. State Farm MU. Aufo. Ins. Co., 489 N.W.26 188,790 @fich. Ct.
AQQ. 1992) (citing Roguckar. 270 N.W.Zd 665); Cammwwalth Y. Schakber& 371 ALhI 544,547 n.6
(Pa.commw.ct 1977)@dicatingthatAtbxncyGcnaalof~~mncI~thst~ir
augay iad fokkldcn to chifopracIorS).
Bruce A Levy, M.D., J.D. - Page 6 (DM-415)

Furthermore., article 4495b. subchapter F suggests that the legislature believes
acupuncturists should be trained in accordance with statewide standards, see V.T.C.S. art.
4495b, 5 6.01(l), and examined by a state board, see id. 5 6.05(a). The legislature has
established requirements for an applicant for a license to practice acupuncture: among
other things, the applicant must have completed 1,800 hours of instruction in subjects
including bacteriology, physiology. symptomatology, meridian and point locations, and
hygiene, and must have treated patients (with supervision) for at least two terms. See id.
8 6.07(c). We believe the legislature, in the interest of the public health, safety, and
welfare, see id. 8 6.01(2), intended to except l?om the training and examination
requirements only health care professionals whose licenses clearly encompass the practice
of acupuncture. See id 5 6.03(a). In our opinion, the practice of chiropractic, as
delineated in V.T.C.S. article 4512b. section 1. does not clearly encompass the practice of
acupuncture.

We accordingly conclude that V.T.C.S. article 4512b. section 1. which
encompasses within the practice.of chiropractic only nonsurgical, nonincisive procedures.
does not authorize a chiropractor to practice acupuncture. In answer to your Srst
question. therefo~ the practice of acupuncture is not within the scope of practice for a
licensed Texas chiropractor. Conversely, in answer to your second question, a licensed
chiropractor must obtain a license to practice acupuncture if the chiropractor desires to
practice acupuncture.

You premise your last question on an a&native response to your first question
and a negative response to your second question. We have reached the opposite
conclusions. Consequently, we need not answer your last question.
Bmce A Levy, M.D., J.D. - Page 7 (DM-415)

SUMMARY

Only a health care professional whose license clearly
encompasses the practice of acupunchxe is excepted from the
training and exanktion requirements se-tforth for acupuncturists in
V.T.C.S. article 4495b, subchapter F. The practice of chiropractic,
as delineated in V.T.C.S. article 4512b, section 1, does not clearly
encompass the practice of acupuncture. Accordingly, V.T.C.S.
article 4512b, section 1, which authorizes a chiropractor to perform
only nonsurgical, nonincisive procedures, does not authorize a
chiropractor to practice acupuncture.

Thus, the practice of acupuncture is not witbin the scope of
practice for a licensed Texas chiropractor. Conversely, a licensed
chiropractor must obtain a license to practice acupuncture if the
chiropractor desires to practice acupunctore.

DAN MORALES
Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Frepared by Kymberly K. Oltrogge
Assistaat Attorney General