JIM MAl-TOX Attorney General

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# TheAttorney General ofTexas .luly 9, 1986

Honorable BradWrigY~t Chairman Cormnittee onPublic Realth Texas House of Repr~asentatlves P. 0. Box 2910 Austin, Texas 787’59 Dear Representative Wright: Opinion No. JM-512 Re: Licensing of out-of-state physicians

You have requested an Attorney General’s Opinion concerning the authority of the Te:cas Board of Medical Examiners. You state that the board has refused to grant a reciprocal license to a doctor licensed in Arkansas because! that doctor took the Federation Licensing Exam (FLEX) before he graduated from medical school. Applicants for licensing by examination in Texas are not eligible to take the Texas -- Licensing Examination, which includes the FLEX,until after graduation frommedical school. In Arkansas, both graduation from medical schcol and a passing sco ’re on the FLEXare prerequisites to licensing. Arkansas differs fruxnTexas in that in Texas aperson maynot take the FLEXuntil after grzuluation. Therefore, you ask:

The licenses Does the fact that the state inwhich amedical

doctor attended school allowed the doctor to take the FLEX exam prior to graduation statutorily prevent Texas from granting rticiprocity to that doctor? Medical P,:actice Act grants the board authority to grant to physlciims licensed in other states: Sec. 2.03 (a) The board

. . . at its sole discretion and upon payment by an applicant of a fee prescr,fbed by the board under this Act, may grant a l.icense to practice medicine to any reputable, physician who is a graduate of a reputable medical college andwho: (1) %I#a licensee

. . . of another state or Canadian province having requirements for physician registration and practice substantially equivalenl: to those established by the laws of this statc!.

. . .

p. 2352Honorable BradWright - Page 2 (JM-512)

V.T.C.S. art. 4495b. $3.03(a). In other words, section 3.03(a) allows the board to license by reciprocity a physician who meets the following requirements: (1) the applicant is a“reputable physician”; (2) the applicant is a grilduate of a“reputable medical school”; and (3) the applicant is licensed in a state or Canadian province that has requirement,s for regislzation andpractice “substantially equivalent” to those in Texas. The act defines “reputable physician” as “one who would be eligible for examination by the board.” V.T.C.S. art. 449:b, §3.03(d). Tobe eligible for examination in Texas an applicant must show that he: (1) is at lez.st 21years of age;

(2) is of gocd professional character; (3) has compkted 60 semester hours of college courses other thr.n inmedical school, which courses would be acceptab1.e. at the time of completion, to TheUniversity of ’ Texas for credit onabachelor of arts degree or abachelor of science degree; (4) is agradua.te of amedical school OScollege that was approvqzl by the board at the time the degree was confe&ed* and --* (5) has s”cl:essf ”lly completed a one year program of graduate medical training approved by the board. In cld.dition to other license requiremerits, the board mayrequire byrule andregulation that graduates cf medical schools located outside the United States and Canada comply with other requirements that the board considers appropriate, ikluding but not limited to additional graduate medical training in the United States, except those who qualify for Hcensure in Section 5.04 of this Act. However, thseapplicant shall be eligible for examination prio:: to complying with Subdivision (5) of Subsection (a) of this section but shall not be eligible for the issuance of an unrestricted license until the requirements of this subsection have been satisf,Led. (Emphasis added). Art. 4495b. 53.04(a). Ycu tell us that the applicant in question meets all these requiremenrs andthat he is agraduate of a“reputable medical school.” Theboard has submitt,zd abrief explaining that its determination in the case you describe, j.sbased. (at least in part) on the statutory requirement that anapplkant for licensing by reciprocity be licensed in astate or Canadian prov:lnce that has requirements for registration andpractice “substantially equivalent” to those in Texas. Art. 4495b. -.

p. 2353Honorable BradWright - Page 3 (JM-512)

P 83.03(a). Theboard has submitted abrief arguing that the timing of

the FLEX is important for quality control. Logic and experience however, tell us that a test score would not be deceptively h&& because the person taking the test had less training than others taking the test. Therefore, we.think it would be unreasonable as a matter of law for the boar,d to conclude, based on the timing of the FLEXalone, that the test sc:ore requirements of astate that accepted FLEXscores achieved before graduation were,not "substantially equivalent" to Texas' test score requirements.' See Allstate Insurance Companyv. State Board of Insurance, 401 S.W.2d131, 132 (Tex. Civ. APP. - Austin 1966, writ r;f'd n.r.e.) (administrative rules must be reasonable). The board's brief dor:s, however, point to a potential problem with reciprocal licensing of physicians licensed in Arkansas.

.The board tells us that Arkacsas does not require a year of graduate medical training as a prerequisite to licensing of physicians. If that is in fact so, anArkansas physician maybe licensed in a state that does not have "requllrements for registration and practices substantially equivalent" to those in Texas. Apart from the question of the sequence of the FLEXand graduation, however, the question of. whether or not the Arkansas requirements for registration andpractice are "substantially equivalent" to those in Texas is not before us. SUMMARY The Medical P:ractice Act does not prevent the licensing by reciprocity of a physician solely because the physician took the Federal Licensing Examination before graduation from medical school. Very truly yours 

# J /NJ&

A;, JIM MATTOX Attorney General of Texas JACKHIGHTOWER First Assistant Attorney General MARYKELLER Executive Assistant Attorney General RICKGILPIN Chairman, Opinion Committee Prepared by Sarah Woelk Assistant Attorney General

1. Weassume that the version of the FLEXis one that is acceptable toTexas. See 22T.A.C. 0163.3. - p. 2354