JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin.

TX. 76711. 2546 5121475.2501 Telex 910/674-1367 TelecoDiar 512/475-0266

714 Jackson, Suite 700 Dallas, TX. 75202-4506 2141742.6944

4624 Alberta Ave., Suite 160 El Paso, TX. 79905.2793 9151533.3464

r ,001 Texas, Suite 700 Houston. TX. 77002-3111 71312236666

606 Broadway, Suite 312 Lubbock, TX. 79401.3479 6061747-5236

4309 N. Tenth, Suite S McAllen, TX. 76501.1665 5121662.4547

200 Maln Plaza. Suite 400 San Antonio, TX. 76205.2797 5121225-4191

An Equal Oppofiuniiyl Affirmative Action Employer 

# The Attorney General of Texas

February 16. 1984

HonorableMargaretMoore Travis CountyAttorney P. 0. Box 1748 Austin, Texas 78767 Opinion No.JM-125

Re: Constitutionalityof rules of Texas State Board of Medical Examiners relating to acupuncturists

Dear Ms. Moore:

You have requested our opinion as to whether the current regulations of the Texas State Board of Medical Examiners concerning the practice of acupuncture violate the constitutional rights of acupuncture patients and practitioners. We find that four of the regulationsdo not meet the "reasonablerelationshiptest."

The Medical Practices Act, article 4495b, section 1.03, subsection8(A),V.T.C.S., definesas "practicingmedicine" those

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.

For purposes of this opinion, we will assume that this definition encompassesallwho perform acupuncture for compensation. ThompsonV. Texas State Board of Medical Examiners, 570 S.W.Zd 123, 127, (Tex. CIV. APP. - Tyler 1978, writ ref'd n.r.e.), citing several out-of-state decisions, held that acupuncture was within the definition of practicing medicine. Nevertheless, a number of other healing srts or professions which otherwise would constitute the practice of medicine have been excluded from the definition of "practicingmedicine"by the legislature. See, e.g., articles 4512(b) (chiropractors); 4512~ (psychologists); 4512d (athletic trainers); 4512e (physicaltherapists);4513-4528c (nurses);4542a (pharmacists); 4543-4551h (dentists); 4552-1.02 (optometrists); 456?-4575a (podiatrists),V.T.C.S. Acupuncturehas not been so excluded.

The Texas State Board of Medical Examiners Is charged with the primary responsibility for regulating the practice of medicine, and

p. 529HonorableMargaret Moore - Page 2 (JM-125)

has the authority to issue regulations concerning acupuncture. V.T.C.S. art. 4495b. The questionraisedby your letter iswhether 22 Texas Administrative Code, sections 183.1-183.12meet constitutional standards. These sections establish a system in which physicians superviseacupuncturists. In addition to giving thephysician general responsibility for the acupuncture practitioner, the regulations are very specific in regard to the place and manner of the supervision. Among the requirementsof the regulationsare the following: (1) the acupuncturist is not allowed to work in a location "physically separate" from the supervisingphysician, 22 T.A.C. 9183.6(a); (2) a physicianmay supervise only one acupuncturist, 22 T.A.C. 5183.7; (3) there may be no separate billing for services rendered by the acupuncturist, 22 T.A.C. $183.5; and (4) an acupuncturistmust wear a name tag with printing at least 3/8 inches in height with the designation "Mr.,Miss, Mrs. or Ms." and surnameplus "acupuncturist." 22 T.A.C. §183.4(c).

The "reasonable relationship test" is the basic constitutional standard for determiningwhether state statutesand regulationscomply with the FourteenthAmendment to the United States Constitution. The reasonablerelationshi~p test requires that regulationsand statutesbe rationally related to a constitutionallvnermissible nuroose. Vance V. Bradley 440 U.S. 93 (1979); Sai Antonio Indepen'dentSchool District v.'Rodrigues, 411 U.S. 1 (1973). In the case of the board's regulations regarding acupuncture,protection of the public health is unquestionablya permissiblepurpose. Thus, here theonly issueunder this test iswhether the board's regulationsare reasonablycalculated to effect thatpurpose.

In WenselV. Washington, (D.C.Super. Ct. 1975),reprintedas the appendix to Lewis V. District of Columbia Commission on Licensure to Practice the Healing Art, 385 A.2d 1148, 1154 (D.C. 1978), the court used the "reasonable relationship test" to examine regulationswhich permitted only a licensed physician or someone under the direct and immediate supervision of a licensed physician to perform acupuncture and required that the acupuncturistnot receive fees from patientsbut insteadbe an employeeof the supervisingphysician. The parallels to the Texas regulations are quite obvious. The court in Wensel found that localmedical schoolsdid not trainphysicians in acupunctureand that doctors in the District of Columbia did not have skill and knowledge in the area. The court also found that the acupuncture regulations, which purported to protect the public health, in fact authorized licensedphysicians to administer or supervise acupuncture treatment, notwithstanding their total lack of knowledge of acupuncture,and prevented knowledgeable and skilled individuals from practicing the art. The court held that under such facts the entire body of regulations was without a rational basis and therefore violated thedue process clause of the United States Constitution.

p. 5:oL

HonorableMargaret Moore - Page 3 (JM-125)

The court in Andrew6 V. Ballard, 498 F. Supp. 1038, 1051 (S.D. Tex. 1980)) which held unconstitutionallyvoid earlier regulations of the Texas Board of Medical Examiners respecting acupuncture, found that "Texas medical schools

. . . do not presently offer formal training in either the theory or practice of acupuncture." You state that this continues to be the case. 22 Texas Administrative Code, sections 183.1-183.12 require that a supervising physician submit information on his or her professional background, including medical education, internship, residency,hospital staff positions, and "such other information the board deems necessary, especially includinghis
or her fsmiliaritywith the practice of acupuncture." However, you state that the board approves supervisingphysicianswithout actually examining or testing their knowledge of or competency in the field of acupuncture. This failure of the board to examine or test sponsoring physicians' competence in the particular field of acupuncture and the continuing absence of formal training in acupuncture in the state's medical schoolsparallel the fact findingsof the court in Wensel that resulted in the invalidation of acupuncture regulations of the District of Columbia.

These facts become of greater constitutional significance when they are viewed in the context of the four specificprovisions of the Texas regulations which were referred to above. We can find no rational relationship between protecting the public health and (1) restrictingan acupuncturist from having "an office independent of or physically separate from the supervislngphysician"without a relevant descriptionof thework prohibited in that office or regardlessof the proximity of the office to the supervisingphysician and his ability to supervise, (2) allowing only one acupuncturist per supervising physician, without regard to the physician's competence, (3) preventing separate itemized billing for acupuncturist services, or (4) compelling thewearing of lapelpins. Hence, the respectiveTexas AdministrativeCode provisions, i.e., the last sentence of subsection (a) of section 183.6, the first sentence of section 183.7, section 183.5, and subsection (c) of section 183.4, are void on their face. When regulations such as these are coupledwith a regulatory scheme in which there is no meaningful examination into the competency of the sponsoringphysician in the particular field of acupuncture and apply in a state whose medical schools offer no formal training in acupuncture,then, as inWensel, the regulationsas awhole may not be reasonably related to safeguarding the public health and could thereforebe unconstitutionalin their entirety.

SUMMARY

Four specific Board of Medical Examiners Regulations, concerning acupuncture, 22 Texas Administrative Code, sections 183.4(c), 183.5 the last sentence of section 183.6(a), and the first

p. 531HonorableMargaretMoore - Page 4 (JM-125)

sentenceof section 183.7,are inviolation of the Fourteenth Amendment of the United States Constitution because there is no rational relationship between them and the protection of thepublic health.

JIM MATTOX Attorney General of Texas

TOM GREEN FirstAssistantAttorneyGeneral

DAVID R. RICHARDS ExecutiveAssistantAttorney General
Preparedby Colin Carl AssistantAttorneyGeneral

APPROVED: OPINION COMMITTEE

Rick Gilpin, Chairman Colin Carl

p. 532