### DAN MORALES

ArTORNEY GENERAL 

### QBffice of tfie Elttornep @eneral iState of IlLexae March 30,1998
Bruce A. Levy, M.D., J.D. Executive Director Opinion No. DM-471 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 ofpractice 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 ofthepractice ofchiropractic, and consequently that the conclusion reached in DM-415 with respect to the practice of acupuncture by chiropractors is superseded by statute.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 aconsideration ofwhether 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.at4. Wereasoned thatbecause the legislature expressly excluded from the range ofprocedures that are incisive or surgical “the use of aneedle for the purpose ofdrawing blood for diagnostic testing,” the legislature considered the use of aneedle for the purpose of drawing blood to be an incisive or surgical procedure. Id. at 5. Seeing no distinction between the use of aneedle for drawing blood and the use of acupuncture needles, we concluded that acupuncture was not within the scope ofpractice ofchiropractic.

‘WhenAttorney 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 aprimary mode of therapy to treat and mitigate a human condition; and (B) the administration ofthe-1 or electrical treatments 01the recommendation of dietary guidelines, energy flow exercise, ordietary orherbal supplements inconjunction with tbe treatment described by Paragraph (A) ofthis subdivision. V.T.C.S. art. 4495b, 5 6.02Bruce A. Levy, M.D., J.D - Page 2 (DM-471)

As apart ofthe acupuncture board’s sunsetlegislation, 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 inpari 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 ofthe 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. SeeHearing on S.B. 361Before 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 ofthe 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 federalFood andDrugAdministration’s (“FDA”) classification ofacupuncture needles. We disagree. The FDA defines an acupuncture needle as“a device intended to pierce the shin in the practice ofacupuncture.” 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 assurethe safety and effectiveness ofthe device, and which are therefore subject to special controls. See21U.S.C. §36Oc(a)(defining classes ofdevices); 21 C.F.R. 5 860.3 (same). The FDA requires acupuncture needles to be labeled for single use only, conform to FDA requirements forprescription 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. 2663Bruce 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 thepractice of acupuncture by chiropractors is superseded by statute.

DAN MORALES Attorney General ofTexas JORGE VEGA First Assistant Attorney General SARAH .I.SHIRLEY Chair, Opinion Committee Prepared by Barbara Griffin Assistant Attorney General

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