Untitled Texas Attorney General Opinion

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DAN MORALES
ArTORNEY
GENERAL March 30,1998

Bruce A. Levy, M.D., J.D. Opinion No. DM-471
Executive Director
Texas State Board of Acupuncture Examiners Re: Whether the performance of acupuncture is
P.O. Box 2018 within the scope of practice of a licensed Texas
Austin, Texas 78768-2018 chiropractor (RQ-988)

Dear Dr. Levy:

You ask whether the practice of acupuncture is within the scope of practice of a licensed
doctor of chiropractic, a question that we considered in Attorney General Opinion DM-415. We
conclude that the practice of acupuncture as defined in V.T.C.S. article 4495b is within the scope
of the practice of chiropractic, and consequently that the conclusion reached in DM-415 with respect
to the practice of acupuncture by chiropractors is superseded by statute.

The issue in DM-415 was whether the practice of acupuncture’ was within the scope of
practice of a licensed chiropractor who was not also a licensed acupuncturist. Attorney General
Opinion DM-415 (1996). Central to our determination was a consideration of whether acupuncture,
defined in part as “the insertion of an acupuncture needle” into the human body, is an “incisive or
surgical procedure” under V.T.C.S. article 4512b. Id. at 4. We reasoned that because the legislature
expressly excluded from the range of procedures that are incisive or surgical “the use of a needle for
the purpose of drawing blood for diagnostic testing,” the legislature considered the use of a needle
for the purpose of drawing blood to be an incisive or surgical procedure. Id. at 5. Seeing no
distinction between the use of a needle for drawing blood and the use of acupuncture needles, we
concluded that acupuncture was not within the scope of practice of chiropractic.

‘When Attorney General Opinion DM-415 was issued, V.T.C.S. article 4495b, which govenw the practice of
acupuncture in Texas, defmed acupuncture as:

(A) the 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 the-1 or electrical treatments 01 the recommendation of
dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction
with tbe treatment described by Paragraph (A) of this subdivision.

V.T.C.S. art. 4495b, 5 6.02
Bruce A. Levy, M.D., J.D - Page 2 (DM-471)

As a part of the acupuncture board’s sunset legislation, the Seventy-filth Legislature amended
the definition of acupuncture in V.T.C.S. article 4495b, subchapter F (the “acupuncture statute”),
to defme acupuncture in part as the “nonsurgical, nonincisive insertion of an acupuncture needle.”
Act ofMay 29,1997,75th Leg., R.S., ch. 1170,1997 Tex. Sess. Law Serv. 4418,4418 (codified at
V.T.C.S. art. 4495b, $6.02(l)). Because the acupuncture statute and the chiropractic statute both
regulate health care professions, we believe they may be read in pari materia. Acupuncture is
detined in the acupuncture statute as a “nonsurgical, nonincisive” procedure. Therefore, it is not an
“incisive or surgical procedure” excluded by the chiropractic statute from the scope of the practice
of chiropractic. Furthermore, the legislative history of the amendment to the acupuncture statute
indicates that the amendment was intended to allow chiropractors to practice acupuncture without
being separately licensed to do so. See Hearing on S.B. 361 Before the House Public Health Comm.,
75th Leg. (May 8, 1997) (testimony of Rep. Patricia Gray) (tape available in House Video/Audio
Services Office). Therefore, our conclusion in DM-415 that needle acupuncture is not within the
scope of the practice of chiropractic has been superseded by statute.

It has been argued that the use of acupuncture needles by chiropractors not licensed to
practice acupuncture contravenes the federal Food and Drug Administration’s (“FDA”) classification
of acupuncture needles. We disagree. The FDA defines an acupuncture needle as “a device intended
to pierce the shin in the practice of acupuncture.” 21 C.F.R. 4 880.5580. Acupuncture needles are
classified by the FDA as “Class II” medical devices, which are devices for which general controls
are insufficient to assure the safety and effectiveness of the device, and which are therefore subject
to special controls. See 21 U.S.C. § 36Oc(a) (defining classes of devices); 21 C.F.R. 5 860.3 (same).
The FDA requires acupuncture needles to be labeled for single use only, conform to FDA
requirements for prescription devices, and comply with biocompatibility and sterility requirements.
21 C.F.R. 5 880.5580. FDA regulations restrict the use of prescription devices, including
acupuncture needles, to practitioners licensed by state law to use or order the use of such devices.
Id. 4 801.109. The FDA does not, however, prescribe who may be licensed by a state to use the
device. Any person authorized by state law to use acupuncture needles must do so in accordance
with FDA regulations.

p. 2663
Bruce A. Levy, M.D., J.D - Page 3 (DM-471)

SUMMARY

The practice of acupuncture, as defined by V.T.C.S. article 4495b, is
not an “incisive or surgical procedure” excluded t?om the scope of the
practice of chiropractic. The conclusion reached in Attorney General
Opinion DM-415 with respect to the practice of acupuncture by chiropractors
is superseded by statute.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH .I. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General

p. 2664