                    THE    ATTORNEY    GENERAL
                              OF TEXAS


                                March 20, 1990



     Honorable Brad Wright           Opinion No. JM-1148
     Chairman
     Public Health Committee         Re: Authority  of the Board of
     House of Representatives        Chiropractic Examiners to condi-
     P. 0. Box 2910                  tion eligibility    for licensure
     Austin, Texas 78769-2910        on graduation    from a    college
                                     accredited by a particular    pri-
                                     vate organization   (RQ-1811)

     Dear Representative   Wright:

          You ask about the validity   of a rule adopted by the
     Board of Chiropractic Examiners that defines the term "bona
     fide reputable chiropractic school."

           The regulatory    statute governing    chiropractors    is
      article 451233, V.T.C.S.  That act requires that applicants
      for licensure by examination     be graduates of "bona fide
     reputable chiropractic schools (whose.entrance     requirements
      and course of instruction are as high as those of the better
     .class of chiropractic    schools   in the United    States)."1
     V.T.C.S. art. 451233, § 10(a).      The board has adopted   the
      following rule regarding chiropractic schools:

                (a) The board shall annually review and
             approve those chiropractic    schools   whose
             graduates are eligible for examination    and
             licensure under the provisions of Texas Civil
             Statutes Article 4512b, 5 10.

                (b) A bona fide reputable, chiropractic
             school as    that term  is used   in   the
             Chiropractic Act, 0 10, is a school which



          1. After October 1, 1990, applicants for licensure by
     examination will include final semester students, as well as
     graduates, of bona   fide reputable   chiropractic  schools.
     Acts 1989, 71st beg., ch. 363, 5 5, at 1450 (effective Oct.
F-   1, 1990).




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        either holds candidate status or is ac-
        credited by the Council on    Chiropractic
        Education.

22 T.A.C. S 71.5.

     You ask whether  the board has authority to limit the
term "bona fide reputable chiropractic    school" to schools
accredited by the Council on Chiropractic      Education and
thereby to exclude schools accredited       b   the Straight
Chiropractic Academic Standards Association. 3

     The board‘s refusal to recognize schools of l@straightt'
chiropractic as bona fide reputable schools of chiropractic
has generated controversy in the past. In 1984, the Austin
Court of Appeals considered whether the board had denied due
process of law in the manner in which it determined that an
applicant, who had graduated    from a school of "straight"
chiropractic, had not graduated from a bona fide, reputable
school of chiropractic.  Wadden
Examiners, 663 S.W.2d 622 (Tex. APP. - Austin 1984, writ
ref'd n.r.e.).    The controversy    arose when the     board
responded   to Madden's  request    for an application     by
informing Madden   that he was ineligible      for licensure
because he had not attended a bona, fide, reputable school of
chiropractic.  The board's rule at the time of Madden's
request provided:

        All applicants    for licensure    -who   have
        matriculated in a chiropractic college   after
        October 1, 1975 must present     evidence   of
        having graduated from a chiropractic   college
        having   status [sic] with the accrediting
        commission of the Council on Chiropractic
        Education or the equivalent thereof.


See id. at 624. Litigation   ensued and eventually led to   a
hearing in which the board issued the following order:

        1. A chiropractic   college must either show
        accreditation by an accrediting body viewed



     2. For an explanation      of the distinction     between
t'straight'tchiropractic and "mixer" chiropractic, see Madden
v. e.
T                                    s, 663 S.W.2d 622   (Tex.
APP. - Austin  1984, writ ref8d z.r.e.1.




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              as reliable by the Board or show a valid
              reason why such accreditation      cannot  be
              obtained  and   otherwise    give    proof of
              reputable status in order to be a bona fide
              and reputable  school for the purposes     of
              Section 10, Article 451213, V.A.C.S.

             2. Sherman College of Straight   Chiropractic
             located in Spartanburg, South Carolina,     is
             not a bona fide reputable school as that term
             is used in     Section 10, Article     4512b,
             V.A.C.S.,  and defined by the Board, and
             therefore, it is ORDERED that David Madden   a
             Sherman College graduate, is not eligible  to
             sit for the state board examination.

     Seeaid. at 624-25.    After that hearing, Madden    continued
     lltlgation against the board, claiming that he had again
     been denied due process.      The Austin Court of Appeals
     agreed, stating that although the board was free to announce
     a new definition    of‘ "bona fide reputable      school   of
     chiropractic"  in an    adjudicative    hearing, Madden   was
     entitled to know before a hearing the standards that would           =
C    control his case.    Id. at 626.     Mr. Madden's   case was
     remanded to the board .for final resolution not inconsistent
     with the court's opinion. &     at 627.

          In the meantime,    the Board of Chiropractic      Examiners
     promulgated its current rule, which defines           bona fide,
     reputable   chiropractic    school as a schools that         holds
     candidate   status or is accredited        by the Council       on
     Chiropractic Education.     Tex . Bd. of Chiropractic Examiners,
     9 Tex. Reg. 5199     (1984) (codified at 22 T.A.C.       5 71.5).
     Apparently none of the issues raised in the litigation with
     Mr. Madden persuaded the board that schools of straight
     chiropractic   were    bona     fide,   reputable    schools    of
     chiropractic for purposes of article 4512b, V.T.C.S.

          You have raised the issue because the United          States
     Department   of    Education has    determined   the    Straight
     Chiropractic    Academic   Standards Association      to be
     nationally recognized accrediting     association for purpose:
     of section 1141(a) of title 20 of the United States Code.
     "Accreditation      of    postsecondary     institutions
     postsecondary    programs by    agencies recognized     by    t::
     Secretary [of Education]    is a prerequisite to eligibility
     for many types of Federal financial assistance for those
     institutions or programs    and for the students enrolled      in
P.   those institutions     or programs."     34 C.F.R.    0 602.1(b)
     (1988); see senerally 34 C.F.R. Parts 602, 603      (Secretary's




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Procedures    and   Criteria   for   Recognition   of   Accrediting
Agencies) .

     The legislature    has   delegated   to  the Board     of
Chiropractic Examiners   the responsibility  for determining
what constitutes    a bona     fide, reputable    school    of
chiropractic.  Because we cannot make fact findings in the
opinions process, we cannot assess whether the board's   rule
defining bona fide, reputable school of chiropractic is too
broad or too narrow.      The fact that the United     States
Department of Education has found the Straight   Chiropractic
Academic Standards Association to be a nationally recognized
accrediting association   for certain federal iaw purposes
does not by itself require the Board of Chiropractic
Examiners to recognize   schools accredited  by the Straight
Chiropractic Academic Standards Association as a bona fide,
reputable school of chiropractic for purposes of Texas law.


                          SUMMARY

        The fact alone       that the United       States
        Department   of   Education   has    found    the e
        Straight   Chiropractic    Academic    Standards
        Association to be a nationally        recognized
        accrediting association    for certain   federal
        law purposes does not require the Board of
        Chiropractic Examiners    to recognize   schools
        accredited   by   the Straight      Chiropractic
        Academic   Standards   Association   as a bona
        fide, reputable   school of chiropractic      for
        purposes of Texas law.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARYEELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN




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    Chairman, Opinion Committee

    Prepared by Sarah Woelk
    Assistant Attorney General




C




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