                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT




                                               March 27,2003



The Honorable Kevin Bailey                             Opinion No. GA-0050
Chair, Committee on General Investigating
Texas House of Representatives                         Re: Whether, for purposes of section 155.003
Post Office Box 29 10                                  (c)(l) of the Occupations Code, an international
Austin, Texas 78768-2910                               medical school graduate who trained in the United
                                                       States in a program of graduate medical education
                                                       that is accredited in a particular specialty but not
                                                       accredited in the related subspecialty in which the
                                                       graduate received training has received medical
                                                       education from a program accredited “in the same
                                                       subject” as the specialty (RQ-062 1-JC)

Dear Representative    Bailey:

         Your predecessor asked whether, for purposes of section 155.003(c)(l) of the Occupations
Code, an international medical school graduate who trained in the United States in a program of
graduate medical education that is accredited in a particular specialty but not accredited in the related
subspecialty in which the graduate received training has received medical education from a program
accredited “in the same subject” as the specialty.’ See TEX. OCC.CODE ANN. tj 155.003(c)( 1) (Vernon
2003). Throughout this opinion, the term “international medical school” refers to a medical school
located outside the United States and Canada.

         The Texas State Board of Medical Examiners (“the Board”) is authorized by statute to issue
a license to practice medicine to an international medical school graduate who received part of his
or her medical education through a graduate medical education program in the United States
accredited by the Accreditation Council for Graduate Medical Education (“ACGME”). See TEX.
Oct. CODE ANN. 8 155.003(b)-(c) (V emon 2003). Representative           Gallego explained that the
ACGME may accredit a medical training program in one of twenty-four medical specialties, and
approximately one hundred subspecialties are recognized within those specialties.      See Request
Letter, supra note 1, at 1. For example, the specialty field of internal medicine encompasses




          ‘See Letter from Honorable Pete P. Gallego, Chair, Committee on General Investigating, Texas House of
Representatives,   to Honorable John Cornyn, Texas Attorney General, at 2 (Oct. 10, 2002) (on file with Opinion
Committee) [hereinafter Request Letter].
The Honorable Kevin Bailey - Page 2                   (GA-0050)




sixteen subspecialties,     including    adolescent   medicine,    cardiovascular     disease, hematology,        and
rheumatology.2

         Until recently, the Board construed relevant statutes and rules to authorize it to license an
international medical school graduate who “completed subspecialty training [in a program]
accredited [by the ACGME] in specialty training . . . but not accredited in subspecialty training.”
Request Letter, supra note 1, at 2. Although the Board has not changed its rules, Representative
Gallego indicated that the Board now denies licensure to such a graduate, however. See id. at 2.
Representative Gallego therefore asked whether the Board may deny a medical license because the
subspecialty training occurred “in a hospital or teaching institution sponsoring or participating in a
program of a graduate medical education accredited by the ACGME or the Board in a specialty but
not in a subspecialty.” Id.

         The Medical Practice Act (“the Act”), title 3, subtitle B of the Occupations Code, prohibits
any person from practicing medicine in this state unless the person has obtained a license from the
Board. See TEX. OCC. CODE ANN. 5 155.001 (Vernon 2003); see also id. 5 151 .OOl (titling act).
Under section 155.003(c), an applicant whose medical education has not been accredited by an
accrediting body recognized by the United States Department of Education may be eligible for “an
unrestricted license” if the applicant

                            received medical education in a hospital or teaching
                  institution sponsoring or participating in a program of graduate
                  medical education accredited by the Accreditation          Council for
                  Graduate Medical Education, the American Osteopathic Association,                           .
                  or the board in the same subject as the medical or osteopathic medical
                  education as defined by board rule . . . .

Id. 8 155.003(c)(l) (emphasis added); see id. § 155.003(b) (conditioning eligibility for license on
accredited medical education in United States); 22 TEX. ADMIN. CODE 8 163.1 l(c) (2002) (Texas
State Board of Medical Examiners, Active Practice of Medicine) (distinguishing between restricted
and unrestricted licenses).

       Under Board licensing rules, adopted in accordance with the Act’s directives, see TEX. OCC.
CODE ANN.    8 153.001(3) (Vernon 2003) (authorizing Board to adopt rules necessary to regulate
medical practice), an international medical school graduate may be eligible for an unrestricted
medical license if he or she received medical education in the United States at

                  a hospital or teaching institution [slponsoring or participating in a
                  program of graduate medical education accredited by the Accrediting
                  Council for Graduate Medical Education, the American Osteopathic                            .
                  Association, or the Texas State Board of Medical Examiners in the



           *SeeTHEAMERICAN     BOARDOFMEDICALSPECIALTIES,        RESEARCH  & EDUCATION      FOUNDATION,
                                                                                                      Whkh   Medical
Specialistfor  You lo-13 (revised Apr. 2002), available at http://www.abms.orP/publications.asp.
The Honorable     Kevin Bailey - Page 3         (GA-0050)




                 same subject as the medical or osteopathic medical education if the
                 hospital or teaching institution has an agreement with the applicant’s
                 school.

27 Tex. Reg. 10277 (2002) (to be codified as an amendment to 22 TEX. ADMIN. CODE 4
163.1(13)(G)(i) (2002)) (T exas State Board of Medical Examiners, Licensure) (renumbered as 22
TEX. ADMIN. CODE 6 163.1(12)(K)(i)) (emphasis added).

        The issue is whether, for purposes of section 155.003 of the Occupations Code and
renumbered section 163.1(12)(K), title 22, of the Administrative Code, a specialty is “the same
subject” as a subspecialty within the specialty. See Request Letter, supra note 1, at 2; accord Letter
from Jennifer A. Soffer, Assistant General Counsel, Texas State Board of Medical Examiners, to
Susan D. Gusky, Chair, Opinion Committee, Texas Attorney General (Dec. 13,2002) (on file with
Opinion Committee) [hereinafter Board Letter].

         The phrase “same subject” in the context of section 155.003 of the Occupations Code and
the corresponding rule connotes a single field of study in terms of the specificity of the topics
included.    The Act and its explicating rules must be construed to protect the public against
unqualified persons attempting to practice medicine. See TEX. Oct. CODE ANN. # 151.003(l)
(Vernon 2003) (articulating legislative finding that practice of medicine must be regulated to protect
public interest); see also Exparte Halsted, 182 S.W.2d 479,482 (Tex. Crim. App. 1944) (noting that
legislature adopted Medical Practice Act under its general police power to protect public health).
Neither the statute nor the rules define the phrase “same subject,” and no court has considered the
meaning of the phrase in this context. The word “same” suggests singularity or identity. See Foust
v. Ranger Ins. Co., 975 S.W.2d 329, 335 (Tex. App.-San Antonio 1998, pet. denied); State v.
Simmons, 573 S.E.2d 856,860 (SC. Ct. App. 2002); State v. Watson, 51 P.3d 66,70 (Wash. 2002)
(en bane); see also XIV OXFORD ENGLISH DICTIONARY 427-29 (2d ed. 1987). The word “subject”
in this context denotes a field of study or of science. See State ex rel. Harrington v. Randle, 35 So.
2d 84, 85 (Ala. 1948); see also Indep. Sch. Dist. No. 25 v. Smith, 463 P.2d 332,333 (Okla. 1969);
Jacoby v. McNamara, 83 N.Y.S.2d 763, 767 (N.Y. Sup. Ct. 1948); XVII OXFORD ENGLISH
DICTIONARY27-30 (2d ed. 1987).

         Although the subject matter of a subspecialty may be subsumed within the subject matter of
a specialty, they are not the “same subject” because they differ in breadth and specificity. Basic
training for a physician specialist “includes four years of premedical education in a college or
university, four years of medical school, and after receiving the M.D. degree, at least three years of
specialty training under supervision (called a ‘residency’).“3 Subspecialty training, which increases
a specialist’s “depth of knowledge and expertise,” requires “an additional one to three years.“4 The
ACGME defines the term “general specialty program” as a “primary specialty . . . to which



        3T~~AMERICANBOARDOFMEDICALSPECIALTIES,
                                            RESEARCH
                                                   & EDUCATION
                                                             FOUNDATION,
                                                                      supra                   note 2, at 1.

        41d.; accord   AMERICAN MEDICAL ASSOCIATION,Becoming      an MD,   avaiZabZe at   http://www.ama-
assn.org/ama/pub/printcat/2320.html.
The Honorable           Kevin Bailey - Page 4                (GA-0050)




subspecialty programs are attached.“5 A “subspecialty program,” according to the accrediting
agency, “[plrovides advanced [graduate medical education] in a narrow field of study within a
medical specialty.“6 A subspecialty program must be accredited by the accrediting agency, and in
some cases, the accreditation of a particular teaching institution’s subspecialty program is
independent of the related specialty program’s accreditation.7

         Given these distinctions, we conclude that a specialty and a subspecialty within that specialty
are not the “same subject” for the purposes of section 155.003(c)( 1) of the Occupations Code and
the Board’s rules. Accordingly, the Board may decline to license an international medical school
graduate who trained in the United States in a program of graduate medical education that is
accredited in a particular specialty but not accredited in the related subspecialty in which the
graduate received training. Whether the graduate’s training in the accredited specialty is sufficient
to issue an unrestricted license under section 155.003(c)( 1) is a question of fact for the Board to
resolve. See Tex. Att’y Gen. Op. No. GA-0003 (2002) at 1 (stating that opinion process does not
determine facts).

         Representative Gallego also asked whether the Board currently may adopt a policy of denying
licensure to such international medical school graduates when, under the Board’s previous
interpretation of relevant statutes and rules, it would have issued a license. See Request Letter, supra
note 1, at 2. The Board, in its letter to this office, “acknowledges” that it has interpreted the term
“same subject” inconsistently “over the years with regard to whether all medical education, specialty
and subspecialty training, . . . must be ACGME[-lapproved.”         Board Letter, supra p. 4, at 2. Yet,
continues the Board’s letter, “changes in the Board’s executive directors and Board members
occasionally lead to different statutory interpretations.” Id.

         The Board’s current interpretation comports with the plain meaning of the phrase “same
subject” in section 155.003(c)(l) of the Occupations Code. A court may defer to an agency’s
interpretation of a statute the agency administers unless the agency’s interpretation is unreasonable.
See In re Am. Homestar oflancaster,       50 S.W.3d 480’490-91 (Tex. 2001). While the fact that an
agency has interpreted the same statute differently over the years may provide some evidence that
the current interpretation is unreasonable, it does not establish unreasonableness as a matter of law.




           ‘ACGME,          Web Accreditation    Data System Glossary,   available at http://www.acF2me.org/adspublic/
glossary/glossary.asp       (defining “general specialty program”).

          ‘jId. (defining    “general specialty program”).

          7See id.
The Honorable Kevin Bailey     - Page 5        (GA-0050)




                                        SUMMARY

                        The Texas State Board of Medical Examiners may decline to
               license an international medical school graduate who received
               training in the United States in a graduate medical education program
               that is accredited in a particular specialty but not accredited in the
               subspecialty in which the applicant trained.        A specialty and a
               subspecialty within it are not the “same subject” for the purposes of
               section 155.003(c)(l) of the Occupations Code and related rules.
               Whether such a graduate completed sufficient training in the
               accredited specialty to be eligible for licensing on that basis is a
               question of fact for the Board to resolve.

                        The fact that an agency charged with administering              a
               particular statute has interpreted the statute differently over the years
               does not mean, as a matter of law, that the agency’s current
               interpretation is unreasonable.

                                               Very truly yours,




                                               Attomey@eral        of Texas



BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kyrnberly K. Oltrogge
Assistant Attorney General, Opinion Committee
