                                                                                             ACCEPTED
                                                                                         03-15-00262-CV
                                                                                                 7772143
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                   11/10/2015 4:28:34 PM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK




                                                                      RECEIVED IN
                                                                3rd COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                                11/10/2015 4:28:34 PM
November 10, 2015                                                   JEFFREY D. KYLE
                                                                         Clerk


Honorable Jeffrey D. Kyle
Clerk, Third Court of Appeals
209 West 14th Street, Room 101
Austin, TX 78701

      RE: Supporting the Texas Association of Acupuncture and Oriental
Medicine (TAAOM) in: Texas Association of Acupuncture and Oriental Medicine
v. Texas Board of Chiropractic Examiners, No. 03-15-00262-CV


Dear Mr. Kyle:

      I write this letter on behalf of AOMA Graduate School of Integrative

Medicine (AOMA). AOMA has sustained operations in the state of Texas since

1993, and is accredited by the Southern Association of Colleges and Schools as a

level V doctoral degree granting institution. Our graduates are authorized to sit for

the National Certification Commission for Acupuncture and Oriental Medicine

board exams vis-à-vis successful completion of a four year program of study

accredited by the Accreditation Commission for Acupuncture and Oriental

Medicine. These graduates, by these virtues, are licensed by the Texas State Board

of Acupuncture Examiners under the Texas Medical Board.
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      This Amicus contains three points. First, there has been an inadequate

process conducted by the Texas Board of Chiropractic Examiners (TBCE) for

establishing educational standards by which to adjudicate the practice of

acupuncture by chiropractors. Second, the TBCE has failed their obligation to the

public with respect to oversight of chiropractors practicing acupuncture in the State

of Texas. The TBCE lacks the capacity to oversee the practice of acupuncture and

has provided no oversite of chiropractors practicing acupuncture. Last, TBCE is in

fact acting more as a Guild and serving the interests of chiropractic professionals

rather than operating within their mission, which is to protect public safety.


      Failed Educational Process

      To date, the TBCE have failed to present documentation of legitimate

‘certification’ for the practice of acupuncture by chiropractors. This is the situation

with purported ‘chiropractic acupuncture education,’ which leads to the ability of

the chiropractor to practice acupuncture in the State of Texas. A legitimate process

would include the following:

             1.   Safety assessment
             2.   Needs assessment
             3.   Inclusive process for development of competencies
             4.   Rigorous process for qualifying faculty
             5.   A certification process that is run by agencies different than the
                  profit-making seminar business
                                                                                   3


      The most glaring deficit in educational processes for chiropractors practicing

acupuncture is that there is no requirement for clinical education with appropriate

oversight. It fails common sense to have no requirements for supervised clinical

practice for a procedure based practice with known risk.1 This was confirmed in a

dialogue with Dr. Ken Thomas of Parker University at a 2012 TBCE ad hoc

acupuncture meeting. To wit:

      Will Morris of AOMA (acupuncture school):

      "I think I just heard you say that a chiropractor could graduate from Parker
      qualified to practice acupuncture and sit for the nationals without having any
      clinical oversight of their skills at all. Is that correct?

      Ken Thomas of Parker University (chiropractic college):
      Yes, there's no clinical requirement in our clinical component at our
      university.2


      The National Certification Commission for Acupuncture and Oriental

Medicine through an industry-wide consensus process of more than 30 years has

determined that some 900 hours of clinical oversight is appropriate.


      Currently, no chiropractic education/certification body has demonstrated a

legitimate certification process for acupuncture. To the contrary, the TBCE
1
       See     CCAOM          Clean    Needle     Technique      Manual 7th Edition,
Part I: AOM Clinical Procedures, Safety, Adverse Events (AEs) and Recommendations to
Reduce                          AEs,                      available               at
http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf.
2
    Chiropractic Board July 11, 2012 ad hoc meeting, at 2:06:26, available at
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
                                                                                           4


considers it appropriate to authorize seminar companies who certify their own

graduates as a legitimate process. This fails the best practices of arm’s-length

relations between educational and certification processes. Furthermore, during the

aforementioned 2012 TBCE ad hoc acupuncture meeting, the committee members

demonstrated no awareness of such best practices. While they promised to do a

rigorous examination of these best practices, they have failed to do so to date.3


       Failure to Regulate

       The TBCE is unable to assess how many chiropractors practice acupuncture

in the State of Texas. This calls into question the capacity of the TBCE to oversee

a procedure performed by its licensees which has known risk. This is compounded

by the fact that the TBCE is willing to allow chiropractors to practice acupuncture

with no clinical training in the practice of acupuncture.


       Guild Conduct of the TBCE

       It is the role and responsibility of all licensing agencies to protect the public

good. The TBCE, however, has taken it upon itself to interpret the Acupuncture

Chapter as an authorization to expand the practice of chiropractic beyond what the

Chiropractic Chapter allows. Such an interpretation is performed in service to the

chiropractic professional and not to the public. This orientation of putting the
3
 Chiropractic Board July 11, 2012 ad hoc meeting, at 1:16:50 - 1:27:35 and 1:47:37 – 1:50:56,
available at https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
                                                                                  5


profession over the public good is evident in the TBCE failure to properly vet the

qualification process whereby chiropractors may practice acupuncture, and in its

failure to regulate the practice of acupuncture by chiropractors. This is Guild-like

behavior, and it is not appropriate conduct for an agency mandated with the

protection of the public.

Sincerely,

/s/ William R. Morris
William R. Morris, PhD, DAOM, LAc
President/CEO
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd., Austin, TX 78745
Tele: (512) 454-1199
E-mail: wmorris@aoma.edu

                            CERTIFICATION OF AMICUS

      I certify on behalf of Amicus Curiae, that no persons other than Amicus
Curiae or its counsel made any monetary contribution to the preparation or
submission of this Amicus letter.

                                                   /s/ William R. Morris
                                                   William R. Morris, PhD


                     CERTIFICATION OF COMPLIANCE

     I certify on behalf of Amicus Curiae, that this Amicus letter contains 786
words according to the word count feature of the software used to prepare this
Amicus letter.
                                                                                 6


                                                   /s/ William R. Morris
                                                   William R. Morris, PhD




                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing
Amicus letter has been served to all attorneys of record as listed below on
11/10/2015.

                                                   /s/ William R. Morris
                                                   William R. Morris, PhD

Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Joe.Thrash@texasattorneygeneral.gov

Craig T. Enoch
Enoch Kever, PLLC.
600 Congress Avenue, Suite 2800
Austin, Texas 78701
cenoch@enochkever.com
