### DAN MORALES

ATTORNEY OENERAL 

### QBffice of the RIttornep @eneral State of QCexae July 8, 1997

Bruce A. Levy, M.D., J.D. Executive Director Opinion No. DM-443 Texas State Board ofMedical Examiners P.O. Box 2018 Austin, Texas 78768-2018 Re: Authority of a physical therapist to perform needle electromyography testing (RQ-928)

Dear Dr. Levy: Onbehalf ofthe State Board ofMedical Examiners (the “board”), you have asked this office a series of questions relating to the authority of aphysical therapist to perform aprocedure called needle electromyography. The questions arise, asweunderstand it, Tom acontroversy astowhether this procedure requires specialized medical training, and as to whether such testing invariably involves adiagnosis ofthe sortwhich would constitute thepractice ofmedicine. This office has and professes no skill in the technical questions which may be involved here, forthe resolution ofwhich we will defer to the board. Rather, we restrict ourselves to the legal questions involved. Here too we find the decision of the board at its August 17, 1996 meeting, a transcript of which has been provided to us, to be entitled to great weight. You ask first whether the performance of needle electromyography is the practice of medicine, and falls within the scope ofpractice for licensed physicians. The practice of medicine is detined by V.T.C.S article 4495b, section l.O3(a)(12), as follows:

A person shall be considered to be practicing medicine within this Act: (A) who shall publicly profess to be a physician or surgeon and shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to effect cures thereof; or (B) who shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method and to effect cures thereof and charge therefor, directly or indirectly, money or other compensation. The statutory definition of the practice ofmedicine is abroad one, as this office has noted in the past. Attorney General Opinion DM-423 (1996) at 2. Moreover the board has expressBruce A. Levy, M.D., J.D. - Page 2 (DM-443)

statutory authority to “determine whether or not an act constitutes the practice of medicine.” Id. (citing V.T.C.S. art. 4495b, 5 3.06(d)(l)). The board by a resolution adopted at its meeting on August 17, 1996, has so decided, and this office defers, as it customarily does, to a reasonable interpretation by a state agency ofthe statute itischarged to enforce. Accordingly, we answer your first two questions in the affbmative. The decision by the board.that needle electromyography constitutes the practice ofmedicine and is within the scope ofpractice of a licensed physician is a reasonable one. You next ask whether the practice of needle electromyography falls within the scope of practice of a licensed physical therapist. As you are aware, the Texas Board ofPhysical Therapy Examiners has taken the position that it does. The Board ofPhysical Therapy Examiners’ position is based upon its interpretation of the definition ofphysical therapy in its enabling statute, which includes the following language: “Physical therapy includes the testing and measurement of the function ofthe musculoskeletal, neurological, pulmonary andcardiovascular systems
. .. .”V.T.C.S. art. 4512e, 5 l(l).’ Based upon this interpretation, the Board ofPhysical Therapy examiners in 1993 adopted by rule adefinition ofphysical therapy which includes the practice ofelectromyography. 22 T.A.C. 3321.1. In our view, the decision that electromyography is “testing and measurement” ofthe sort described in article 4512(e), section l(1) isnot unreasonable. Under section 2Gof article 4512e, the Board ofPhysical Therapy Examiners ischarged with the enforcement ofthe Physical Therapy Act. Accordingly, itsreasonable interpretation ofthat actis entitled to the same deference we give toyour interpretation of the Medical Practice Act. Therefore we answer your third question in the affirmative as well. The decision by the Board of Physical Therapy Examiners that electromyography is within the scope ofpractice of a licensed physical therapist is areasonable one. You next ask which state agency or agencies have the authority to regulate such practice. Insofar aselectromyography constitutes the practice ofmedicine, you have that authority. Insofar as electromyography is within the scope ofpractice of a licensed physical therapist, the Board of Physical Therapy Examiners has that authority. The question is directly analogous to one this office considered inAttorney General Opinion DM-423. In that opinion request, the board asked whether aparticular procedure was within the practice ofmedicine, and whether it was within the practice ofpodiatry. We declined to answer whether the particular therapy constituted podiatry,.noting that
“the determination of what constitutes the practice of podiatry is the business of the Board of Podiatric Medical Examiners more than ofthis office.” Attorney General Opinion DM-423 (1996)

‘The act further provides that “alicenseissued hereunder shall not authorize the diagnosis of diseases or the practice ofmedicine asdefmed by law.” Abrief submitted inresponse to this request suggests that electromyography is generally diagnostic. A determination of what constihltes diagnosis would, in our view, require expertise that this officedoesnotpurporttopossess, aswell asfactual determinations of asort that we cannot make inthe opinion process. We defer here to the informed judgment of the Boards of Medical and Physical Therapy Examiners as to when and whether the practice isdiagnostic.

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n.1 at4. However, we further noted that ifthe relevant body did so decide, the Board of Medical Examiners could not regulate the activity of licensed podiatrists in that regard. Id. Here, the rule adopted by the Board of ~Physical Therapists is a clear and reasonable determination that electromyography iswithin the scope ofpractice ofphysical therapists. Forthat mason, andbecause by its terms the Medical Practice Act does not apply to “duly licensed physical therapists who contine their activities orpractice strictly tophysical therapy andwho arenot in violation of any law relating to physical therapy practice,” the board has no regulatory authority over physical therapists practicing electromyography. V.T.C.S. art. 4495b, 53.06(a)(7). To answer your tinal question, thejurisdictional limit recited above would appear to be the principal limitation on your rule-making authority, and conversely on that ofthe Board of Physical Therapy Examiners as well. ,Accordingly, the development of any general rules regulating this activity would require the cooperation ofboth boards, and is not within the province of either board exclusively. Physical therapists would, in their practice, be governed by the rules ofthe Board of Physical Therapy Examiners, doctors by those ofthe Board ofMedical Examiners.

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### SUMMARY The decision by the aboard of .Medical Examiners that needle electromyography constitutes thepractice ofmedicine and iswithin the scope ofpractice of alicensed physician is areasonable ene. The decision by the Board of Physical Therapy Examiners that eleetromyography is within the scope ofpractice of a licensed physical therapist is areasonable one. Insofar as electromyography constitutes the practice of medicine, the Board of Medical Examiners has the authority to regulate the activity. Insofar as electromyography is within the scope of practice of a licensed physical therapist, the Board of Physical Therapy Examiners has that authority. Accordingly, the development of any general rules regulating this activity would require the cooperation ofboth boards, and is not within the province of either board exclusively. Physical therapists would, in their practice, be governed by the rules ofthe Board ofPhysical Therapy Examiners, doctors by those ofthe Board ofMedical Examiners.

DAN MORALES Attorney General ofTexas JORGE VEGA First Assistant Attorney General SARAH J. SHIRLEY Chair, Opinion Committee Prepared by James E. Tourtelott Assistant Attorney General

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