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 of Medical 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: 

On behalf of the State Board of Medical Examiners (the “board”), you have asked this office 

a series of questions relating to the authority of a physical therapist to perform a procedure called 

needle electromyography. The questions arise, as we understand it, Tom a controversy as to whether 

this procedure requires specialized medical training, and as to whether such testing invariably 

involves a diagnosis of the sort which would constitute the practice of medicine. This office has and 

professes no skill in the technical questions which may be involved here, for the resolution of which 

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 of practice 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 of medicine is a broad one, as this office has noted 

in the past. Attorney General Opinion DM-423 (1996) at 2. Moreover the board has express 
Bruce 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 of the statute it is charged to enforce. Accordingly, we answer your 

first two questions in the affbmative. The decision by the board.that needle electromyography 

constitutes the practice of medicine and is within the scope of practice 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 of Physical Therapy 

Examiners has taken the position that it does. The Board of Physical Therapy Examiners’ position 

is based upon its interpretation of the definition of physical therapy in its enabling statute, which 

includes the following language: “Physical therapy includes the testing and measurement of the 

function of the musculoskeletal, neurological, pulmonary and cardiovascular systems . . . .” V.T.C.S. 

art. 4512e, 5 l(l).’ 

Based upon this interpretation, the Board of Physical Therapy examiners in 1993 adopted 

by rule a definition of physical therapy which includes the practice of electromyography. 22 T.A.C. 

3 321.1. In our view, the decision that electromyography is “testing and measurement” of the sort 

described in article 4512(e), section l(1) is not unreasonable. Under section 2G of article 4512e, the 

Board of Physical Therapy Examiners is charged with the enforcement of the Physical Therapy Act. 

Accordingly, its reasonable interpretation of that act is entitled to the same deference we give to your 

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 of practice of a licensed physical therapist is a reasonable one. 

You next ask which state agency or agencies have the authority to regulate such practice. 

Insofar as electromyography constitutes the practice of medicine, you have that authority. Insofar 

as electromyography is within the scope of practice of a licensed physical therapist, the Board of 

Physical Therapy Examiners has that authority. The question is directly analogous to one this office 

considered in Attorney General Opinion DM-423. In that opinion request, the board asked whether 

a particular procedure was within the practice of medicine, and whether it was within the practice 

of podiatry. 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 of this office.” Attorney General Opinion DM-423 (1996) 

‘The act further provides that “a license issued hereunder shall not authorize the diagnosis of diseases or the 

practice of medicine as defmed by law.” A brief submitted in response to this request suggests that electromyography 

is generally diagnostic. A determination of what constihltes diagnosis would, in our view, require expertise that this 

office does not purport to possess, as well as factual determinations of a sort that we cannot make in the 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 is diagnostic. 

P. 2478 
Bmce A. Levy, M.D., I.D. - Page 3 (DM-443) 

n.1 at 4. However, we further noted that if the 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 is within the scope of practice of physical therapists. For that mason, and because 

by its terms the Medical Practice Act does not apply to “duly licensed physical therapists who 

contine their activities or practice strictly to physical therapy and who are not 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, 5 3.06(a)(7). 

To answer your tinal question, the jurisdictional limit recited above would appear to be the 

principal limitation on your rule-making authority, and conversely on that of the Board of Physical 

Therapy Examiners as well. ,Accordingly, the development of any general rules regulating this 

activity would require the cooperation of both boards, and is not within the province of either board 

exclusively. Physical therapists would, in their practice, be governed by the rules of the Board of 

Physical Therapy Examiners, doctors by those of the Board of Medical Examiners. 

P. 2479 
Bruce A. Levy, M.D., J.D. - Page 4 (DM-443) 

SUMMARY 

The decision by the aboard of .Medical Examiners that needle 

electromyography constitutes the practice of medicine and is within the scope 

of practice of a licensed physician is a reasonable ene. The decision by the 

Board of Physical Therapy Examiners that eleetromyography is within the 

scope of practice of a licensed physical therapist is a reasonable 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 of both boards, and is not within the province 

of either board exclusively. Physical therapists would, in their practice, be 

governed by the rules of the Board of Physical Therapy Examiners, doctors 

by those of the Board of Medical Examiners. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by James E. Tourtelott 

Assistant Attorney General 

P. 2480