DAN MORALES

.4TTORNEY GENERAL 

# QWfice

oftiy Bttornep dhneral &ate of ?D;exae

David R Smith, M.D. Commissioner ofHealth Texas Department ofHealth 1100West 49th Street Austin, Texas 78756-3 199 

### h4ay2,1994 Opinion No. DM-292
Re: Whether the Texas Board of Health is authorized tmder the Medical Ibdiologic Technologist Certitication Act, article 4512m, V.T.C.S., to promulgate rules discontinuing general certitication of medical radiologic technologists, and implementing a system of specialty certitication in diagnostic radiography, nuclear medicine, and radiation therapy 

## @Q-61

1)

Dear Dr. smith:
You ask whether the Texas Board ofHealth (the “board”) is authorized under the Medical Radiologic Technologist Certification Act, V.T.C.S. article 4512m (the “act”), to promulgate rules discontimting general certilication of medical radiologic technologists, and implementing a system of specialty certitkation for three disciplines. The act governs the certitication of medical radiologic technologists. For example, it provides that a person must hold a certiticate to perform a radiologic procedure, with certain exceptions. V.T.C.S art. 4512m, $2.07. It also requires the board to adopt rules establishing minimum standards for issuing certificates. 

### Id. 82.05(a)(l). In addition, it creates the Medical Radiologic Technologist Advisory Board (the “advisory board”) “as an advisory board to the Texas Board ofHealth.” 

### Id. §2.04(a).’ By way ofbackground, you explain that at the present time the Texas Department of Health (the “department”) issues two types of certilicates: (1) a general certiticate which allows the certiticate holder to perform any and allradiologic procedures, and (2) a limited certificate which allows the certi6cate holder to perform radiologic procedures that

1% actprwtdesthattheadvkq board“shallrcccmrncad forthewnsidcratioaoftheTexas Bead of Health roles ‘o implanent standa& adopted m&r this Act.. .” V.T.C.S. art. 4512111, 82.04(d). Theactalso requiresthe advisoryboardto trammad examinations. Id.g2.04(e).

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are Iimited to specigc parts of the human body.2 The advisory board, however, has recommended that the board issue rules implementing a new licensing scheme. You give
us to understand that the medical radiologic technology field is comprised of three disciplines: diagnostic radiography, nuclear medicine, and radiation therapy. You state that the advisory board

wishes to recommend rules to the board] to establish a separate general certificate for each ofthe three disciplines or a single general certificate with three separate specialty designations.

. An individual would not be able to perform radiologic procedures in any discipline unless he or she held a genera) certithxtion that covered that Lpcifk discipline. It isyour position that the board isnot authorized to adopt such rules. Generally, an administrative agency can adopt only those rules that are authorized by and consistent with its statutory authority. 

### TexasFire & Car. Co. v.Harris County BailBondBd, 684 S.W.Zd 177, 178 (Tex. App.- Houston [14th Dist.] 1984, writ refd n.r.e.). An administrative agency may not adopt rules which impose additional burdens, conditions, or restrictions in excess of or inconsistent with those statutory provisions. 

### Id.; Ho&wood Calling v. Public Util. Comm’nof Texas, 805 S.W.Zd 618, 620 (Tex. App.-Austin 1991, no writ). The determinative factor as to whether an administrative agency has e-xceeded its authority is whether the rule is in harmony with the general 

### objectives of 

### the statute. 

### Ho&wood Calling, 805 S.W.2d at 620 (citing Gersl v. Oak 

### Cl~$Sav. &LoanAsh, 432 S.W.2d 702, 706 (Tex. 1968)). In making this determination, one must look not only to the particular provision of the act but to all applicable provisions. 

### Id.
Section 2.03 ofthe act inpart sets forth the following detinitions that are relevant to your query: (5) “Radiologic procedure” means any procedure or article

intended for use inthe diagnosis ofdisease or other medical or dental conditions in humans (including diagnostic X-rays or nuclear medicine procedures) or the cure, mitigation, treatment, or

ZThebar& cum111roles regardingthe cutitication ofmedical radiologic technologists arc set for& at title 25 of the Texas Adminimative C&e, chapter 143. The bead currently issues limited wrliocates in - cale’Jolics: ‘he skoll, cksl, spine, exue.milies, deml, podiatric, and chiroprsctic. See 25 T.A.C. $?

143.2.

p. 1552David R. Smith, M.D. - Page 3 (DM-292)

prevention of disease in humans that achieves its intended purposes through the emission ofradiiion.



### (8) “Certikation” means an authorization to administer radiation to aperson for medical purposes. (9) “General certigcation” means an authorization to perform radiologic procedures authorized by this Act. (10) United certification” means an authorization to perform radiologic procedures that are limited to specitk parts of the human MY.(11) “Temporary certification, general or limited,” means an authorization to perform radiologic procedures for a limited period, not to exceed oneyear. V.T.C.S. art. 4512m, $2.03(5), (8) - (11).
Section 2.05 of the act sets forth the board’s rukmaking authority. It generally authorizes the board to adopt rules necessary to implement the act, V.T.C.S. art. 4512m, 42.05(e), and specifically provides inpertinent part that

[t]he Texas Board of Health shall establish different classes of certikates to include all radiologic procedures used in the course and scope of the practice of practitioners licensed in this state. The Texas Board ofHealth may issue general and limited certificates and genera) and limited temporary certificates. 

### Id. §2.05(b).

You suggest that the board isnot authorized to adopt rules to implement specialty certiiicates in lieu ofgeneral certificates because the legislature has not expressly provided that it may do so. You contend that “the legislature has generally expressly stated in a licensing statute when the legislature wishes to allow or require specialty designations or specialty certiticates,” citing the now-repealed Licensed Professional Counselor Act, V.T.C.S. art. 4512g, 8 13 (repealed by Acts 1993. 73d Leg., ch. 581, 520 (eff. Sept. 1, 1993)), and the Texas Medical Physics Practice Act, V.T.C.S., art. 451211,3 13. “Since the legislature did not specify specialties inthe [act], one may conclude that the legislature did not intend to require specialties under the [act], other than the limited certitlcation.” You also suggest that the board isnot authorized to establish specialty certificates because

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this would, in et&t, establish a new category of “limited certification” which is not provided for by section 2.03(10), the section inthe act detining this term. See supra.
We disagree with your analysis and conclusion for the following reasons. Although the legislature has only defined general and limited certitication, we believe that the first sentence of section 2.05(b) must be read broadly to authorize the board to establish a variety of classes of certificates, especially when read in conjunction with the succeedmg sentence which provides that the board is authorized to issue general and limited certiticates and temporary certiticates. If the board were confhted to issuing general and limited certiticates, the first sentence of section 2.05(b) would be wholly redundant and therefore meaningless. See Chevron Corp. v. Redmon, 745 S.W.2d 314, 316(Tex. 1987) (m statutory construction, one should give effect to allwords ofa statute and not treat any statutory language as surplusage ifpos~ible).~
This construction of section 2.05(b) is also supported by an examination of the act as a whole. Section 2.05(a)(l) provides that the board shall adopt rules establishing “minimum standards for ksuing, renewing, suspending, and revoking certiticates issued under [the act].” In addition, section 2.04(d) provides that the “advisory board shall recommend for the consideration of the Texas Board of Health rules to implement standards adopted under [the act] and shagrecognize existing standards that apply to the scope ofpractice for both general and limited certifications.” Furthermore, section 2.02 of the act states that itspurpose is “to protect the health and safety ofthe people ofthis state from the harmful effects of excessive radiation used for medical purposes by establishing minimm~ standards for the certitication of medical radiologic technologists.” These provisions give the board broad power to promulgate standards for certitication, and the authority to consider both practice standards andpublic health and safety in doing so. We believe that promulgating rules implementing specialty certitication would be consistent with this authority and the general purpose ofthe act.

%e previsions ofSmatc Bill 32 ending ‘heMedicalRadiologic Tecbnok@sI Culi6cation Aa we~.akkdtoSeaateBill1439byaflooramcadmtnt on third reading in the house. H.J.of Tex., 7Otb Le.&at3949 (1987). SenateBill 1439wasenaaed aschapter 1096. See Acts 1987,7Oth Lq., ch. lO%, at 3717. A Senate commiaee on Health and Hwnan Services bill analysis of Senate Bill 32 desxii seaion 2.05(b) asfollmvs:

Senate Cmmn.on HealthandHuman Sewices, Bill Analysis, S.B. 32,701h Leg. (1987) (emphasis added). Uscdtbctam’iacluding”suggeasthatthclegislaNcdidmtintcndtocontincthebosrdtoissuing generalandlimitedcauficatca andgeneralandliiled temporalyeerlilicam.

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We add two further notes in conclusion. Fii although we conclude above that the board is authorized to adopt rules establishing speciaky certification in lieu of general
or limited certification, we do not believe that the act 

### requiresthe board to do so. The board’s current rules providing for general and limited certification are clearly authorized by and consistent with its statutory authority. Furthermore, although your concern that a 

### specialtycertification scheme “would [wreak] havoc in the profession and among current certificate holders and their employers” is not a legal reason for refraining from adopting the rules, it is certainly a policy consideration that the board may take into account in deciding whether or not to adopt them. Second, you state that the advisory board’s recommendation to establish the specialty certification scheme sternsfrom

its concern over the lack of training or education individuals may have. Generally, individuals are trained or educated in one, but not eJl,of the disciplines. However, the general certification allows an individual educated inone area to practice in allthree areas. We note that there are several ways in which the board might address this concern. For example, it is clear that the act authorizes the board to adopt rules requiring that every certificate applicant be trained and examined in all three disciplines of ihe field of radiology.4

‘See V.T.C.S. art. 4512m. 82.05(a)(l) (requiring the board to adopt standa& for issuing catitiuM)), (a)(2) (reqoiring thebomd to adoptnllcs establishing minimum standardsfor approving the auriada and programsto trainindividuals to performmdiologic procedures), (a)(3) (requiringtheboatd to adcgt rolesestablishing minimumstanda& forapprovingthe instmctors who teachapprovedcunicula and programs),(d) (authorizingthe board to cslablii @IeIincs, including continuingeducation repuinmuts for medical radiologic technologists, and to pre.pa~ and conduct an examination for cutiiicate applicants).

p. 1555David R Smith, M.D. - Page 6 **(DFf-292)**

SUMMARY
The Texas Board of Health is authorized under the Medical Radiologic Technologist Certification Act, article 4512m, V.T.C.S., to promulgate rules implementing a system of specialty certification indiagnostic radiography, nuclear medicine, andradiation therapy.

DAN MORALES Attorney General ofTexas
JORGE VEGA Fiist Assistant Attorney General
DREWDURHAM Deputy Attorney General for Criminal **Justice**
WILL PRYOR special c0unse1
RENEA HJCKS State Solicitor
SARAH J. SHIRLEY Chair, Opiion Committee Prepared by Mary R. Crouter Assistant Attorney General