Untitled Texas Attorney General Opinion

The Attorney General of Texas
.luly 9, 1986
JIM MAl-TOX
Attorney General
Supreme Court Building Honorable Brad WrigY~t Opinion No. JM-512
P. 0. BOX 12548
Austin, TX. 78711.2548
Chairman
5121475.2501 Cormnittee on Public Realth Re: Licensing of out-of-state
Telex 9101874.1367 Texas House of Repr~asentatlves physicians
Telecopier 512/4750266 P. 0. Box 2910
Austin, Texas 787’59
714 Jackson, Suite 700
Dallas, TX. 75202-4508 Dear Representative Wright:
214/742-8944
You have requested an Attorney General’s Opinion concerning the
authority of the Te:cas Board of Medical Examiners. You state that the
4824 Alberta Ave.. Suite 160
El Paso, TX. 79905-2793
board has refused to grant a reciprocal license to a doctor licensed
915/533-3484 in Arkansas because! that doctor took the Federation Licensing Exam
(FLEX) before he graduated from medical school. Applicants for
licensing by examination-- in Texas are not eligible to take the Texas
‘001 Texas, suite 700 Licensing Examination, which includes the FLEX, until after graduation
-Mon. TX. 77002-3111
from medical school. In Arkansas, both graduation from medical schcol
.2234886
and a passing sco’re on the FLEX are prerequisites to licensing.
Arkansas differs fruxn Texas in that in Texas a person may not take the
808 Broadway, Suite 312 FLEX until after grzuluation. Therefore, you ask:
Lubbock, TX. 79401-3479
806/747-5238
Does the fact that the state in which a medical
doctor attended school allowed the doctor to take
4304 N. Tenth. Suite B the FLEX exam prior to graduation statutorily
McAllen. TX. 78501-1685 prevent Texas from granting rticiprocity to that
512/682-4547
doctor?
200 MaIn Plaza, Suite 400 The Medical P,:actice Act grants the board authority to grant
San Antonio, TX. 78205.2797 licenses to physlciims licensed in other states:
5121225-4191
Sec. 2.03 (a) The board . . . at its sole
An Equal Opportunity/
discretion and upon payment by an applicant of a
Affirmative Action Employer fee prescr,fbed by the board under this Act, may
grant a l.icense to practice medicine to any
reputable, physician who is a graduate of a
reputable medical college and who:
(1) %I# a licensee . . . of another state or
Canadian province having requirements for
physician registration and practice substantially
equivalenl: to those established by the laws of
P this statc!. . . .
p. 2352
Honorable Brad Wright - Page 2 (JM-512)
V.T.C.S. art. 4495b. $3.03(a). In other words, section 3.03(a) allows
the board to license by reciprocity a physician who meets the
following requirements: (1) the applicant is a “reputable physician”;
(2) the applicant is a grilduate of a “reputable medical school”; and
(3) the applicant is licensed in a state or Canadian province that
has requirement,s for regislzation and practice “substantially equiva-
lent” to those in Texas.
The act defines “reputable physician” as “one who would be
eligible for examination by the board.” V.T.C.S. art. 449:b, §3.03(d).
To be eligible for examination in Texas an applicant must show that
he:
(1) is at lez.st 21 years of age;
(2) is of gocd professional character;
(3) has compkted 60 semester hours of college
courses other thr.n in medical school, which courses
would be acceptab1.e. at the time of completion, to
The University of’ Texas for credit on a bachelor of
arts degree or a bachelor of science degree;
(4) is a gradua.te of a medical school OS college
that was approvqzl by the board at the time the
degree was confe&ed*
--* and
(5) has s”cl:essf”lly completed a one year
program of graduate medical training approved by
the board. In cld.dition to other license require-
merits, the board may require by rule and regulation
that graduates cf medical schools located outside
the United States and Canada comply with other
requirements that the board considers appropriate,
ikluding but not limited to additional graduate
medical training in the United States, except those
who qualify for Hcensure in Section 5.04 of this
Act. However, thse applicant shall be eligible for
examination prio:: to complying with Subdivision (5)
of Subsection (a) of this section but shall not be
eligible for the issuance of an unrestricted
license until the requirements of this subsection
have been satisf,Led. (Emphasis added).
Art. 4495b. 53.04(a). Ycu tell us that the applicant in question
meets all these requiremenrs and that he is a graduate of a “reputable
medical school.”
The board has submitt,zd a brief explaining that its determination
in the case you describe, j.s based. (at least in part) on the statutory
requirement that an applkant for licensing by reciprocity be licensed
-.
in a state or Canadian prov:lnce that has requirements for registration
and practice “substantially equivalent” to those in Texas. Art. 4495b.
p. 2353
Honorable Brad Wright - Page 3 (JM-512)
83.03(a). The board has submitted a brief arguing that the timing of
the FLEX is important for quality control. Logic and experience
however, tell us that a test score would not be deceptively h&&
because the person taking the test had less training than others
taking the test. Therefore, we.think it would be unreasonable as a
matter of law for the boar,d to conclude, based on the timing of the
FLEX alone, that the test sc:ore requirements of a state that accepted
FLEX scores achieved before graduation were,not "substantially equiva-
lent" to Texas' test score requirements.' See Allstate Insurance
Company v. State Board of Insurance, 401 S.W.2d131, 132 (Tex. Civ.
APP. - Austin 1966, writ r;f'd n.r.e.) (administrative rules must be
reasonable).
The board's brief dor:s, however, point to a potential problem
with reciprocal licensing of physicians licensed in Arkansas. . The
board tells us that Arkacsas does not require a year of graduate
medical training as a prerequisite to licensing of physicians. If
that is in fact so, an Arkansas physician may be licensed in a state
that does not have "requllrements for registration and practices
substantially equivalent" to those in Texas. Apart from the question
of the sequence of the FLEX and graduation, however, the question of.
whether or not the Arkansas requirements for registration and practice
are "substantially equivalent" to those in Texas is not before us.
SUMMARY
P
The Medical P:ractice Act does not prevent the
licensing by reciprocity of a physician solely
because the physician took the Federal Licensing
Examination before graduation from medical school.
J /NJ&
Very truly yours
A;,
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
1. We assume that the version of the FLEX is one that is accept-
able to Texas. -See 22 T.A.C. 0163.3.
p. 2354