                           @ffice of t!je ~ttornep @eneral
                                        &ate of ?ICexae
DAN MORALES
 .4TTORSEY
       GENERAL                            November 6, 1996


     &uce A. Levy, M.D.                              Opinion No. DM 423
     Executive Director
     Texas State Board of Medical Examiners          Re: Authority of the Board of Medical
     P.O. Box 2018                                   Examiners to regulate hyperbaric oxygen
     Austin, Texas 78768-2018                        therapy (RQ-890)

      Dear Dr. Levy:

              You have asked this office a series of questions concerning the authority of the
      Board of Medical Examiners (the “board”) to regulate hyperbaric oxygen therapy. As we
      understand it from the materials you have presented to us, hyperbaric oxygen therapy
      involves placing a patient, usually for a period of ninety minutes, in a chamber filled with
      100% oxygen the atmospheric pressure of which has been increased, generally to 2.4
      atmospheres absolute pressure.

              You first ask us whether the board has the authority to determine whether
      hyperbaric oxygen therapy is the practice of medicine for the purposes of the Medical
      Practice Act. We conclude that it does.

               The Medical Practice Act (the “act”), article 4495b, V.T.C.S., gives the board
      broad powers to regulate the practice of medicine. In section 1.02(2), the legislature
      declares that the board “should remain the primary means of licensing, regulating, and
      disciplining the individual physicians and surgeons who are licensed to practice medicine.”
      The phrase “[plracticing medicine” is defined by section l.O3(a)(12) of the act 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 thereoc 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.

             This definition of the practice of medicine seems to us sufficiently broad to include
      hyperbaric oxygen therapy. Such therapy would certainly appear to be a “system or
Bruce A. Levy, M.D. - Page 2              (DM 423)




method” designed to “treat          [a] disease or disorder,        physical deformity or
injury.    ” V.T.C.S. art. 4495b, $ 1.03(12). This conclusion is further supported, in our
view, by the rather limited amount of case law referring to hyperbaric oxygen therapy, by
section 3.06(d)(l) of the act, and by Thompson v. Texus Stufe Board of Medical
Examiners, 570 S.W.Zd 123 (Tex. Civ. App.--Tyler 1978, writ refd n.r.e.).

        Our research has identified a total of twenty-two American cases referring to
hyperbaric oxygen therapy in the last nineteen years. See, e.g., Roberts v. Lowry, 673 So.
2d 1323 (La. Ct. App. 1996); Wilkerson v. Preluts@, No. 66263, 1996 WL 192052 (MO.
Ct. App. 1996); Keefe v. Shalula, 71 F.3d 1060 (2d Cu. 1995). While the question of
whether this therapy constitutes the practice of medicine is not squarely presented by these
cases, they indicate that hyperbaric oxygen therapy generally is regarded as a medical
procedure.

        Moreover, Texas law provides that the board may determine whether particular
procedures constitute the practice of medicine. Section 3.06(d)(l) of the act expressly
states that “[t]he board may determine whether or not an act constitutes the practice of
medicine. . . .” See Mitchell v. Amarillo Hosp. Disi., 855 S.W.2d 857, 874 (Tex. App.-
Amarillo 1993), cerf. denied, 115 S. Ct. 510 (1994). Additionally, in Thompson, two
physicians argued that the board had no right to revoke their licenses to practice medicine
for permitting unlicensed persons to perform acupuncture on their premises. They argued,
infer uliu, that the board was without authority to define acupuncture as within the
practice of medicine. This contention the court rejected out of hand: “In our opinion
acupuncture is properly included within the practice of medicine.” 570 S.W.Zd at 127. It
tiuther held the board’s exercise of this authority to be a valid exercise of the police power
of the state:

                The statutes in question and the actions of the Board clearly
           have a real and substantial relation to the object sought to be
           attained. The State seeks to protect the general health, safety and
           welfare of all its citizens through the actions of its Board of Medical
           Examiners.         By requiring only licensed physicians to administer
           acupuncture treatments, the Board fUlfilled its duty to the people of
           this State to insure as best it can the competency of those practicing
           medicine.

Id. at 128-29.

        Accordingly, based on the broad statutory definition of the practice of medicine,
the express statutory authority provided in section 3,06(d)(l), the holding of Thompson,
and our reading of those cases which discuss hyperbaric oxygen therapy, we conclude that
the board has the authority to determine that the administration of such therapy is the
practice of medicine.

       Your second question is whether, having determined that hyperbaric oxygen
therapy is the practice of medicine, the board may regulate the perfotmance of such


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Bruce A. Levy, M.D. - Page 3




therapy. Again, our answer is a&native.      Section 2.09(a) of the act reads, in pertinent
part:

          The board may make rules, regulations, and bylaws not inconsistent
          with this Act as may be necessary for . . the regulation of the
          practice of medicine in this state .

This broad grant of discretionary rule-making authority is in our view sufficient to permit
the board to make rules concerning the regulation of hyperbaric oxygen therapy.

        You next ask whether the board’s authority is sufficiently broad to permit rules
which, limit the abiity of physicians to delegate performance of such therapy or establish
standards for supervision of such therapy when a delegation has been made. We think
that, generally speaking, the board has sufficient authority to adopt such rules. Physicians
in Texas may prescribe treatment and delegate its administration to others. T&o v.
Texas, 703 F.2d 823, 827 (5th Cir. 1983), afd in part, rev’d in part on other grounds,
468 U.S. 883 (1984). Section 3.06(d)(l) ofthe act a&us that

          a person licensed to practice medicine shah have the authority to
          delegate to any qualitied and properly trained person or persons
          acting under the physician’s supervision any medical act which a
          reasonable and prudent physician would find is within the scope of
          sound medical judgment to delegate.

However, under section 3.06(d)(l), the board has the power to determine “‘whether or not
an act constitutes the practice of medicine . and may determine whether any medical act
may or may not be properly delegated by physicians.” Accordingly, physicians’ powers to
delegate a procedure such as this may be limited by rule as a part of such a determination.

        Finally, you ask whether the administration of hyperbaric oxygen therapy is ‘within
the scope of independent practice of a licensed Texas podiatrist.” If it is, the board may
not regulate the podiatrist’s practice of it, since the board’s powers derive from the act,
which by its own terms does not apply to “duly licensed podiatrists who confIne their
practice strictly to podiatry as defined by law.” V.T.C.S. art. 4495b, $3.06(b)(5).

         The practice of podiatry is governed by chapter 11 of title 71, V.T.C.S., articles
4567 through 4576. The definition of podiatry offered by articles 4567(a) and 4567b is as
follows:

               Any person shah be. regarded as practicing podiatry within the
          meaning of this law, and shall be deemed and construed to be a
          podiatrist, who shall treat or offer to treat any disease or disorder,
          physical injury or deformity, or ailment of the human foot by any
          system or method and charge therefor, directly or indiiectly, money
          or other compensation.



                                             p. 2359
Bruce A. Levy, M.D. - Page 4                     (DM 423)




        Whether hyperbaric oxygen therapy may constitute the practice of podiatry
depends, therefore, on whether it is a “system or method” which may be used to treat “any
disease or disorder, physical injury or deformity, or ailment of the human foot.” In our
view, the answer to such a question would depend upon the resolution of factual questions
concerning, for example, the value and appropriateness of such therapy in treating the
human foot which we cannot answer in the opinion pr0cess.t However, if the answer is
a&native, then the board cannot regulate the practice of hyperbaric oxygen therapy by a
licensed podiatrist. Such regulation would by law be within the purview of the State
Board ofPodiatric Medical Examinerss V.T.C.S. art. 4568(i).




        2Itisour understanding,based upon a brief prepsred by the Beard of Podiatric Medical
Examiners,that that body does take the view that this therapy is within the practiceof podiatry. It has
acmrdingly drafted a proposed mte remthing that podiatrists pmctictng the thempy mmztfollow the
goideliiea of the Underseaand HyperbaricMedical 8eciety (‘UBM8”),rmrstpractice the tkmpy in a
hospitalsettin&andmustcomplctcaanrrscoftrainingrrcogaizcdbythcUHMSandbcartifiedas
competentby tbat training agency.

                                                 p. 2360
bttce A. Levy, M.D. - Page 5                 (DM 423)




                                   SUMMARY

               The Board of Medical Examiners has the authority to determine
          whether hyperbaric oxygen therapy constitutes the practice of
          medicine, the power to regulate the performance of such therapy, and
          the power to make rules which knit the abiity of physicians to
          delegate performance of such therapy or which establish standards
          for supervision of such therapy when a delegation has been made.
          Whether hyperbaric oxygen therapy is within the practice of podiatry
          depends upon the resolution of factual questions. However, if hyper-
          baric oxygen therapy is within the practice of podii,   its practice by
          podiatrists is regulated by the Board of Podiatric Medical Examiners,
          not 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. Touttelott
Assistant Attorney General




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