Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MATTOX February 16. 1984
Attorney General
Supreme Court Building Honorable Margaret Moore Opinion No. JM-125
P. 0. Box 12546 Travis County Attorney
Austin. TX. 76711. 2546 P. 0. Box 1748 Re: Constitutionality of rules
5121475.2501
Telex 910/674-1367
Austin, Texas 78767 of Texas State Board of Medical
TelecoDiar 512/475-0266
Examiners relating to acupunc-
turists
714 Jackson, Suite 700
Dear Ms. Moore:
Dallas, TX. 75202-4506
2141742.6944
You have requested our opinion as to whether the current
regulations of the Texas State Board of Medical Examiners concerning
4624 Alberta Ave., Suite 160 the practice of acupuncture violate the constitutional rights of
El Paso, TX. 79905.2793 acupuncture patients and practitioners. We find that four of the
9151533.3464
regulations do not meet the "reasonable relationship test."
r
,001 Texas, Suite 700 The Medical Practices Act, article 4495b, section 1.03,
Houston. TX. 77002-3111 subsection 8(A), V.T.C.S., defines as "practicing medicine" those
71312236666
who shall diagnose, treat, or offer to treat any
disease or disorder, mental or physical, or any
606 Broadway, Suite 312
Lubbock, TX. 79401.3479 physical deformity or injury by any system or
6061747-5236 method and to effect cures thereof and charge
therefor, directly or indirectly, money or other
compensation.
4309 N. Tenth, Suite S
McAllen, TX. 76501.1665
5121662.4547 For purposes of this opinion, we will assume that this definition
encompasses all who perform acupuncture for compensation. Thompson V.
Texas State Board of Medical Examiners, 570 S.W.Zd 123, 127, (Tex.
200 Maln Plaza. Suite 400
CIV. APP. - Tyler 1978, writ ref'd n.r.e.), citing several
San Antonio, TX. 76205.2797
5121225-4191
out-of-state decisions, held that acupuncture was within the
definition of practicing medicine. Nevertheless, a number of other
healing srts or professions which otherwise would constitute the
An Equal Oppofiuniiyl practice of medicine have been excluded from the definition of
Affirmative Action Employer "practicing medicine" by the legislature. See, e.g., articles 4512(b)
(chiropractors); 4512~ (psychologists); 4512d (athletic trainers);
4512e (physical therapists); 4513-4528c (nurses); 4542a (pharmacists);
4543-4551h (dentists); 4552-1.02 (optometrists); 456?-4575a
(podiatrists), V.T.C.S. Acupuncture has not been so excluded.
The Texas State Board of Medical Examiners Is charged with the
primary responsibility for regulating the practice of medicine, and
p. 529
Honorable Margaret Moore - Page 2 (JM-125)
has the authority to issue regulations concerning acupuncture.
V.T.C.S. art. 4495b. The question raised by your letter is whether 22
Texas Administrative Code, sections 183.1-183.12 meet constitutional
standards. These sections establish a system in which physicians
supervise acupuncturists. In addition to giving the physician general
responsibility for the acupuncture practitioner, the regulations are
very specific in regard to the place and manner of the supervision.
Among the requirements of the regulations are the following: (1) the
acupuncturist is not allowed to work in a location "physically
separate" from the supervising physician, 22 T.A.C. 9183.6(a); (2) a
physician may supervise only one acupuncturist, 22 T.A.C. 5183.7; (3)
there may be no separate billing for services rendered by the
acupuncturist, 22 T.A.C. $183.5; and (4) an acupuncturist must wear a
name tag with printing at least 3/8 inches in height with the
designation "Mr., Miss, Mrs. or Ms." and surname plus "acupuncturist."
22 T.A.C. §183.4(c).
The "reasonable relationship test" is the basic constitutional
standard for determining whether state statutes and regulations comply
with the Fourteenth Amendment to the United States Constitution. The
reasonable relationshi~ptest requires that regulations and statutes be
rationally related to a constitutionallv nermissible nuroose. Vance
V. Bradley 440 U.S. 93 (1979); Sai Antonio Indepen'dent School
District v.'Rodrigues, 411 U.S. 1 (1973). In the case of the board's
regulations regarding acupuncture, protection of the public health is
unquestionably a permissible purpose. Thus, here the only issue under
this test is whether the board's regulations are reasonably calculated
to effect that purpose.
In Wensel V. Washington, (D.C. Super. Ct. 1975), reprinted as the
appendix to Lewis V. District of Columbia Commission on Licensure to
Practice the Healing Art, 385 A.2d 1148, 1154 (D.C. 1978), the court
used the "reasonable relationship test" to examine regulations which
permitted only a licensed physician or someone under the direct and
immediate supervision of a licensed physician to perform acupuncture
and required that the acupuncturist not receive fees from patients but
instead be an employee of the supervising physician. The parallels to
the Texas regulations are quite obvious. The court in Wensel found
that local medical schools did not train physicians in acupuncture and
that doctors in the District of Columbia did not have skill and
knowledge in the area. The court also found that the acupuncture
regulations, which purported to protect the public health, in fact
authorized licensed physicians to administer or supervise acupuncture
treatment, notwithstanding their total lack of knowledge of
acupuncture, and prevented knowledgeable and skilled individuals from
practicing the art. The court held that under such facts the entire
body of regulations was without a rational basis and therefore
violated the due process clause of the United States Constitution.
p. 5:o
L
Honorable Margaret Moore - Page 3 (JM-125)
The court in Andrew6 V. Ballard, 498 F. Supp. 1038, 1051 (S.D.
Tex. 1980)) which held unconstitutionally void earlier regulations of
the Texas Board of Medical Examiners respecting acupuncture, found
that "Texas medical schools . . . do not presently offer formal
training in either the theory or practice of acupuncture." You state
that this continues to be the case. 22 Texas Administrative Code,
sections 183.1-183.12 require that a supervising physician submit
information on his or her professional background, including medical
education, internship, residency, hospital staff positions, and "such
other information the board deems necessary, especially including his
or her fsmiliarity with the practice of acupuncture." However, you
state that the board approves supervising physicians without actually
examining or testing their knowledge of or competency in the field of
acupuncture. This failure of the board to examine or test sponsoring
physicians' competence in the particular field of acupuncture and the
continuing absence of formal training in acupuncture in the state's
medical schools parallel the fact findings of the court in Wensel that
resulted in the invalidation of acupuncture regulations of the
District of Columbia.
These facts become of greater constitutional significance when
they are viewed in the context of the four specific provisions of the
Texas regulations which were referred to above. We can find no
rational relationship between protecting the public health and (1)
restricting an acupuncturist from having "an office independent of or
physically separate from the supervislng physician" without a relevant
description of the work prohibited in that office or regardless of the
proximity of the office to the supervising physician and his ability
to supervise, (2) allowing only one acupuncturist per supervising
physician, without regard to the physician's competence, (3)
preventing separate itemized billing for acupuncturist services, or
(4) compelling the wearing of lapel pins. Hence, the respective Texas
Administrative Code provisions, i.e., the last sentence of subsection
(a) of section 183.6, the first sentence of section 183.7, section
183.5, and subsection (c) of section 183.4, are void on their face.
When regulations such as these are coupled with a regulatory scheme in
which there is no meaningful examination into the competency of the
sponsoring physician in the particular field of acupuncture and apply
in a state whose medical schools offer no formal training in
acupuncture, then, as in Wensel, the regulations as a whole may not be
reasonably related to safeguarding the public health and could
therefore be unconstitutional in their entirety.
SUMMARY
Four specific Board of Medical Examiners
Regulations, concerning acupuncture, 22 Texas
Administrative Code, sections 183.4(c), 183.5 the
last sentence of section 183.6(a), and the first
p. 531
Honorable Margaret Moore - Page 4 (JM-125)
sentence of section 183.7, are in violation of the
Fourteenth Amendment of the United States
Constitution because there is no rational
relationship between them and the protection of
the public health.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Colin Carl
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
p. 532