                                                                                                   ACCEPTED
                                                                                               03-15-00262-CV
                                                                                                       7943947
                                                                                    THIRD COURT OF APPEALS
                                                                                               AUSTIN, TEXAS
                                                                                        11/23/2015 11:14:11 AM
                                                                                             JEFFREY D. KYLE
                                                                                                        CLERK
Honorable Jeffrey D. Kyle
Clerk, Third Court of Appeals
209 W 14th Street, Room 101                                                RECEIVED IN
                                                                      3rd COURT OF APPEALS
Austin, TX 78701                                                          AUSTIN, TEXAS
                                                                     11/23/2015 11:14:11 AM
                                                                        JEFFREY D. KYLE
                                                                              Clerk
Re: Texas Association of Acupuncture and Oriental Medicine v. Texas Board of
Chiropractic Examiners and Yvette Yarborough, Executive Director in Her Official
Capacity, No. 3-15-00262-CV


To the Honorable Members of the Third Court of Appeals:

       Please accept this amicus curiae letter on behalf of the Accreditation

Commission for Acupuncture and Oriental Medicine (ACAOM) in the above-

referenced matter. ACAOM is the national accrediting agency recognized by the

U.S. Department of Education for the accreditation and pre-accreditation

(“Candidacy”) throughout the United States of first professional master’s degree and

professional master’s level certificate and diploma programs in acupuncture and

Oriental medicine, and professional post-graduate doctoral programs in acupuncture

and in Oriental medicine (DAOM), as well as freestanding institutions and colleges

of acupuncture and Oriental medicine that offer such programs. ACAOM provides

both institutional and programmatic accreditation.1 It is the opinion of ACAOM that

the Texas Board of Chiropractic Examiners (Chiropractic Board) has promulgated


1
 The Accreditation Commission for Acupuncture and Oriental Medicine, About Us, available at
http://acaom.org/about/.

                                            1
rules that significantly undermine historically accepted standards of acupuncture

education and professional practice in Texas. As such, ACAOM respectfully asks

that the Third Court of Appeals reverse the decision by the 201st District Court and

render judgement in favor of the Texas Association of Acupuncture and Oriental

Medicine.


       The goal of accreditation is to ensure that education provided by institutions

of higher education meets acceptable levels of quality. In the most practical terms,

accreditation also serves to recognize that an institution maintains standards requisite
                                                                                 2
for its graduates to achieve credentials for professional practice.                  The rule to

“certify” chiropractors to practice acupuncture designed by the Chiropractic Board

appears to have significantly lower standards of education that are not subject to the

oversight accreditation provides. 3




2
      U.S.    Dept.     of    Education,       FAQs     about     Accreditation,   available    at
http://ope.ed.gov/accreditation/FAQAccr.aspx
3
  Despite a requirement to take a certification examination, it is unclear by what authority, or
indeed if, chiropractors are certified to practice acupuncture. See National Board of Chiropractic
Examiners,       Does       the      NBCE         License     Chiropractors?,     available     at
http://mynbce.org/score/licensing-certification/ (“NBCE does not certify / license chiropractors”
and “examinees who successfully complete NBCE Parts I, II, III and IV are awarded an NBCE
Certificate of Attainment”). There is no mention of a “certificate of attainment” in acupuncture.
See also CR 249, Admission No. 14 (stating that the Chiropractic Board does not certify
chiropractors in acupuncture.)

                                                2
       It is our understanding that current Chiropractic Board rules provide two

different pathways for chiropractors to practice acupuncture.4 One option requires a

chiropractor to pass the same national certification examination that acupuncturists

must take as part of their requirements to become licensed in Texas, a test which at

a minimum requires nearly 1,500 hours of ACAOM accredited curriculum5.

Alternatively, the Chiropractic Board allows a far less rigorous second option, the

certification examination administered by the National Board of Chiropractic

Examiners (NBCE), which requires 100 hours of acupuncture education with no

clinical training requirement.6


       To help clarify, there are two distinct types of accreditation: "institutional"

accreditation, which typically applies to an entire institution, indicating that each of

its parts are contributing to the achievement of the institution's objectives; and

"specialized" or "programmatic" accreditation, which applies to the evaluation of

specific programs of study. 7 NBCE policy articulates certain accreditation



4
   22 TEX. ADMIN. CODE §78.14.
5
  See National Certification Commission for Acupuncture and Oriental Medicine, NCCAOM
Certification      Handbook        2015,      available    at      http://www.nccaom.org/wp-
content/uploads/pdf/Certification%20Handbook.pdf. Licensed Acupuncturists in Texas must
receive full certification in Oriental Medicine (page.22, Table 2: ACAOM Graduation Hour
Requirements, Oriental Medicine Program, minimum of 2625 hours). The lowest possible number
of hours allowed to sit for the NCCAOM Acupuncture with Point Location exam is 1490 hours
(page 23, Table 3: Pre-graduation Hour Requirements for Taking Examinations).
6
  22 Tex. Admin. Code § 78.14.
7
  See Note 2 supra.

                                             3
requirements which must be met for a candidate to sit for the NBCE acupuncture

exam, 8 but these requirements do not appear to be related or relevant to acupuncture

education:


    • The Council on Chiropractic Education (CCE) is the specialized chiropractic

       accrediting body, with purview over doctoral level chiropractic programs. 9

       Acupuncture is not included as part of the programmatic curriculum nor is it

       listed as a competency for the doctoral programs at chiropractic schools in

       CCE accreditation standards. Some chiropractic institutions offer elective

       training of limited duration in acupuncture through non-credit bearing “post-

       graduate” continuing education programs. Continuing education programs

       are not normally reviewed by accrediting commissions as the education is

       non-credit bearing. In this instance CCE does not have specific standards for

       acupuncture and therefore the content of acupuncture training programs does

       not fall within their regulatory purview.


    • Absent acupuncture-specific programmatic accreditation, the case has been

       made that oversight of acupuncture education at chiropractic colleges is


8
  See National Board of Chiropractic Examiners, Acupuncture Brochure (page 3, Applicant
Eligibility), available at http://nbce.wpengine.com/wp-content/uploads/acu_brochure.pdf. See
also     NBCE       Eligibility   Policy,  available    at    http://mynbce.org/apply/eligibility-
requirements/eligibility-policy/.
9
  Council on Chiropractic Education website, available at http://www.cce-usa.org/.

                                                4
       provided via a school’s institutional accreditor. 10 In Texas, that entity is the

       Southern Association of Colleges and Schools (SACS). However, as

       previously noted, the role of an institutional accrediting body is to assess the

       broader organizational effectiveness of an institution, not to establish or assess

       specialized curriculum. SACS thus offers no specific oversight of acupuncture

       education, whether taught at a chiropractic college or elsewhere.


     • Other than the general requirement that a school’s continuing education

       program overall must be in alignment with the stated mission of the

       institution, continuing education is generally outside the scope of the

       accreditation process.11


       Thus, acupuncture education as taught by chiropractic colleges does not

include the oversight of accreditation. Without accreditation in the area being tested,

there is no assurance that verifiable standards of education and training have been



10
   Dr. Kenneth Thomas, V.P. of Academic Affairs at Parker University at a 2012 Chiropractic
Board meeting stated, “I want to make that point very clear that those programs do have scrutiny
over them outside the university via SACS.” And, “They do accredit that…they look at faculty
rosters, faculty credentials, student learning outcomes, our benchmarks…” Chiropractic Board
July 11,        2012    ad      hoc meeting,       at  1:54:22     - 1:55:40,     available at
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
11
   See Southern Association of Colleges and Schools, Commission on Colleges ‘The Principles of
Accreditation: Foundations of Quality Enhancement’ (Section 3.3.1.5, and 3.4.2, Continuing
Education), available at http://www.sacscoc.org/pdf/2012PrinciplesOfAcreditation.pdf.




                                               5
met. Consequently, an individual may graduate from a chiropractic college, become

a licensed chiropractor, and practice acupuncture without any actual clinical training

or demonstrated clinical competencies in acupuncture, 12 as would be required in an

accredited acupuncture program. The Chiropractic Board claims to only approve

acupuncture courses which include a clinical component, but it appears this may not

be the case.13ACAOM considers clinical training in acupuncture to be fundamental

and central to acupuncture education.14


     The Chiropractic Board’s area of expertise is chiropractic medicine not

acupuncture. The Chiropractic Board’s rule sidesteps the important role of

accreditation in setting specific standards of quality for acupuncture programs that

relate to safe and legal practice and we trust that the information provided in this

amicus curiae letter will assist the Court in reversing the decision by the 201st District

Court and rendering judgement in favor of the Texas Association of Acupuncture

and Oriental Medicine.

Respectfully submitted,


12
   Id. at 2:04:49
13
   See Parker University Continuing Education, Texas State Board Approvals, available at
http://ce.parker.edu/state-board-approvals/texas/. And, Dr. Kenneth Thomas, V.P. of Academic
Affairs at Parker University at a 2012 Chiropractic Board meeting confirmed, “Yes, there’s no
clinical requirement [in acupuncture]…at our university” (discussed further below). Chiropractic
Board July 11, 2012 ad hoc meeting, at 2:06:27 – 2:06:47, available at
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
14
     ACAOM Accreditation Manual, Criterion 8.7 Clinical Training, available at
http://acaom.org/documents/accreditation_manual_712.pdf.

                                               6
/s/ Mark S. McKenzie

Mark S. McKenzie, PhD, MsOM, LAc
Executive Director
Accreditation Commission for Acupuncture and Oriental Medicine
8941 Aztec Drive
Eden Prairie, MN 55347
Phone: (952)212-2434
mark.mckenzie@acaom.org

                               Certificate of Amicus

      Pursuant to Rule 11 of the Texas Rules of Appellate Procedure, this will

confirm that ACAOM has not incurred any legal fees related to the drafting of this

letter. The undersigned is an employee and the Executive Director of ACAOM and

neither ACAOM nor the undersigned have received or will receive any direct

compensation for the drafting or submission of this amicus letter.

                                                               /s/ Mark S. McKenzie
                                                                  Mark S. McKenzie


                                Certificate of Compliance

I certify on behalf of Amicus Curiae, that this Amicus letter contains 1231

words in the text of the document and 397 words in the foot notes according to the

word count feature of the software used to prepare this amicus letter.

                                                               /s/ Mark S. McKenzie
                                                                  Mark S. McKenzie




                                          7
                               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 November

23, 2015.

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
                                                               /s/ Mark S. McKenzie
                                                                  Mark S. McKenzie




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