Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners And Patricia Gilbert, Executive Director in Her Official Capacity ( 2015 )

ACCEPTED
03-15-00262-CV
7768256
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/10/2015 2:59:43 PM
JEFFREY D. KYLE
CLERK
November 10th, 2015
Honorable Jeffrey D. Kyle RECEIVED IN
3rd COURT OF APPEALS
Clerk, Third Court of Appeals AUSTIN, TEXAS
11/10/2015 2:59:43 PM
209 W 14th Street, Room 101
JEFFREY D. KYLE
Austin, TX 78701 Clerk
Re: Texas Association of Acupuncture and Oriental Medicine v. Texas Board of
Chiropractic Examiners and Yvette Yarborough, Executive Director in Her
Official Capacity, No. 3-15-00262-CV
To the Honorable Members of the Third Court of Appeals:
Both the American College of Acupuncture and Oriental Medicine based in
Houston and AOMA Graduate School of Integrative Medicine in Austin are
respected as leading institutions of higher education in the field of acupuncture and
Oriental Medicine in the United States, and both are regionally accredited by the
Southern Association of Colleges and Schools Commission on Colleges and
programmatically accredited by the Accreditation Commission for Acupuncture
and Oriental Medicine, offering entry level four year Master’s programs as well as
Doctorate programs in Acupuncture and Oriental Medicine.
This amicus curiae letter is submitted jointly on behalf of the student
associations of both institutions. As the leaders of our respective student
organizations we humbly request that the Third Court of Appeals reverse the
decision by the 201st District Court and render judgement in favor of the Texas
Association of Acupuncture and Oriental Medicine.
The State of Texas has established requirements for licensure in acupuncture to
ensure safe and capable practice. The fulfillment of these requirements represents
a sizable commitment of time and financial resources, with tuition for acupuncture
school running upwards of $70,000 and many students emerging from their
graduate training with debt loads of $100,000 or more.
From the perspective of those who make such a sizable investment of time and
money for the privilege of becoming licensed to practice acupuncture in Texas, the
current situation of chiropractors being allowed to perform acupuncture, much less
with a bare minimum of instruction (100 hours and no clinical training)
undermines the integrity of the acupuncture license and the public trust. The
general public has no way to know such a disparity in acupuncture training exists.
Patients also likely have no understanding of the limits of chiropractic scope of
practice in regards to acupuncture.
Section 201.002 of the Occupations Code defines the practice of
chiropractic as follows.
“A person practices chiropractic under this chapter if the person:
(1) uses objective or subjective means to analyze, examine, or
evaluate the biomechanical condition of the spine and musculoskeletal system of
the human body;
(2) performs nonsurgical, nonincisive procedures, including
adjustment and manipulation, to improve the subluxation complex or the
biomechanics of the musculoskeletal system.”
In 2013 the Chiropractic Board amended its acupuncture rule “to make
explicitly clear that any acupuncture, acupressure and meridian therapy (in addition
to any other therapeutic modality) must be done in accordance with the
legislatively defined scope of practice for chiropractic.”1
And yet a brief internet search immediately yields an example of a chiropractic
clinic offering acupuncture for infertility and allergies2. Or, in another example, a
chiropractor represents himself both as “physician” and as “A Licensed
Professional, Certified Acupuncturist specializing in facial accupuncture” (sic)3. It
is difficult to reconcile the discrepancy between how acupuncture is being
practiced by chiropractors and what the Chiropractic statute and Board rules
1
See Texas Register, Preamble of amendment to §75.21 (concerning acupuncture) available at
http://texreg.sos.state.tx.us/public/regviewer$ext.RegPage?sl=T&app=2&p_dir=N&p_rloc=2636
34&p_tloc=-
1&p_ploc=&pg=1&p_reg=201206437&z_chk=50959&z_contains=acupuncture"^.
2
See Frisco Spinal Rehabilitation, Infertility, available at http://www.friscorehab.com/fertility-
and-acupuncture.php. See also Frisco Spinal Rehabilitation, Allergies and Acupuncture,
available at http://www.friscorehab.com/allergies-and-acupuncture.php.
3
See Ranger Chiropractic Clinic, Physicians, available at http://www.ranger-
chiropractic.com/#!physicians/cipy. See also 22 TEX. ADMIN. CODE §78.15(b)(3)(D)
(Indicating “cosmetic treatments” are outside the scope of chiropractic and thus prohibited.)
represent. While the examples provided come from just two clinic websites, no
doubt more such examples can easily be found around the state.
The issue of how chiropractors practicing acupuncture represent themselves
came to the fore in 2012 when the Chiropractic Board attempted to adopt a
“recognized specialty” rule related to acupuncture.4 The rule was subsequently
withdrawn, but much confusion over the credentialing and representation of
chiropractors practicing acupuncture remains.
The above referenced clinic represents their doctors as “trained experts of
Acupuncture Therapy” while providing no acupuncture credentials, for example.5
In contrast, when a Licensed Acupuncturist represents themselves with the
credential ‘Diplomate in Acupuncture,’ this signifies NCCAOM certification
which can only be conferred upon completion of a Masters level program of
accredited study and by passing the NCCAOM board exams.6 Simultaneously
there are some organizations that train chiropractors in acupuncture and also confer
“diplomate” status, but with substantially less training than is required by
4
See Texas Register, proposed changes to §71.15 Recognized Specialties (withdrawn
5/30/2012), available at
http://texreg.sos.state.tx.us/public/regviewer$ext.RegPage?sl=R&app=1&p_dir=&p_rloc=24843
5&p_tloc=&p_ploc=&pg=1&p_reg=248435&ti=22&pt=3&ch=71&rl=15&issue=02/17/2012&z
_chk=1604469&z_contains=acupuncture"^.
5
Frisco Spinal Rehabilitation, Acupuncture Therapy , available at
http://www.friscorehab.com/acupuncture-therapy.php.
6
National Certification Commission for Acupuncture and Oriental Medicine, Eligibility
Requirements, available at http://www.nccaom.org/applicants/eligibility-requirements.
NCCAOM.7 For students of acupuncture and Oriental medicine and professionals
alike it is particularly concerning to see short diplomate courses offered for
chiropractors encompassing not just acupuncture, but acupuncture and Chinese
herbology – all taught in a mere 300 hours.8 Because there are no uniform
standards of training for chiropractors to practice acupuncture under Board rules,
and because the Chiropractic Board does not regulate the practice of acupuncture
by chiropractors, there is real concern that what training chiropractors have, and
how that training (or lack thereof) is represented, has the potential to be inherently
misleading to the public.
The Chiropractic Board has a well-documented “history of acting unilaterally to
expand scope of practice in a way that seems to indicate a greater interest in
promoting the profession than following the law and protecting patients.”9 In the
broadest sense, it is not too strong a sentiment to express that today’s acupuncture
7
Council of Chiropractic Acupuncture, Diplomate Information, available at
http://www.councilofchiropracticacupuncture.com/index.php/certification/aba-information-for-
certification (Indicating a 300 hour standard of training). See also, Council of Chiropractic
Acupuncture, Acupuncture Classes, available at
http://www.councilofchiropracticacupuncture.com/index.php/education/acupuncture-classes.
8
See International Academy of Chiropractic Acupuncture, Syllabus Advanced 200, available at
http://www.iaca.cc/id9.html. (Indicating training in both acupuncture and Chinese herbology).
9
See Sunset Advisory Commission, Texas Board of Chiropractic Examiners, Staff Report
February 2004, available at
https://www.sunset.texas.gov/public/uploads/files/reports/Board%20of%20Chiropractic%20Exa
miners%20Staff%20Report%202004%2079th%20Leg.pdf.
students (and future licensees), along with current Licensed Acupuncturists, hold
the perception that their profession has been co-opted by the Chiropractic Board,
despite the Chiropractic Board having no expertise in acupuncture or Oriental
medicine.
In the field, Licensed Acupuncturists enter practice after investing years of their
lives and several tens of thousands of dollars to meet the requirements set forth by
the Legislature for the practice of acupuncture only to find that chiropractors too
are now in the business of being acupuncturists. It is in this context that we humbly
request, as representatives of the student associations of both the American College
of Acupuncture and Oriental Medicine and AOMA Graduate School of Integrative
Medicine, that the Court reverse the lower court’s judgment and render judgment
in favor of the Texas Association of Acupuncture and Oriental Medicine.
Respectfully,
/s/ Linda Henderson and Gene Kuntz II
Linda Henderson
Student Association President
American College of Acupuncture and Oriental Medicine
9100 Westpark Drive
Houston, TX 77063
Phone: (713) 780-9786
lhenderson@acaom.edu
Gene Kuntz II
Student Association President
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd.
Austin, TX 78745
Phone: (512) 454-1188
gkuntz@student.aoma.edu
Certificate of Amicus
Pursuant to Rule 11 of the Texas Rules of Appellate Procedure, this will
confirm that neither the American College of Acupuncture and Oriental Medicine
or AOMA Graduate School of Integrative Medicine has incurred any legal fees
related to the drafting of this letter. The undersigned are students and student
association leaders at their respective institutions and neither the American College
of Acupuncture and Oriental Medicine or AOMA Graduate School of Integrative
Medicine have received or will receive any direct compensation for the drafting or
submission of this amicus letter.
/s/ Linda Henderson and Gene Kuntz II
Linda Henderson and Gene Kuntz II
Certificate of Compliance
I certify on behalf of Amicus Curiae, that this Amicus letter contains 1074 words
according to the word count feature of the software used to prepare this amicus
letter.
/s/ Linda Henderson and Gene Kuntz II
Linda Henderson and Gene Kuntz II
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 10th, 2015.
Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Joe.Thrash@texasattorneygeneral.gov
Craig T. Enoch
Enoch Kever, PLLC.
600 Congress Avenue, Suite 2800
Austin, Texas 78701
cenoch@enochkever.com
/s/ Linda Henderson and Gene Kuntz II
Linda Henderson and Gene Kuntz II