                                                                                                             ACCEPTED
                                                                                                         03-15-00262-CV
                                                                                                                 7960791
                                                                                              THIRD COURT OF APPEALS
                                                                                                         AUSTIN, TEXAS
                                                                                                   11/23/2015 8:35:53 PM
                                                                                                       JEFFREY D. KYLE
                                                                                                                  CLERK


  Council of Colleges of
  Acupuncture and Oriental Medicine
                                                                                 RECEIVED IN
                                                                           3rd COURT OF APPEALS
                                                                                AUSTIN, TEXAS
November 20, 2015                                                          11/23/2015 8:35:53 PM
                                                                               JEFFREY D. KYLE
                                                                                    Clerk

Honorable Jeffrey D. Kyle
Clerk, Third Court of Appeals
209 West 14th Street, Roon1 101
Austin, TX 78701

     RE: Texas Association of Acupuncture and Oriental Medicine v.
Texas Board of Chiropractic Examiners, No. 3- 15-00262-CV


Dear Mr. Kyle:

      This letter is on behalf of the Council of Colleges of Acupuncture

and Oriental Medicine (Council) and in support of the position of the

Texas Association of Acupuncture and Oriental Medicine (TAAOM) in

the above captioned case.

      The Council is a 501 (c)(6) nonprofit corporation and since 1982

has been the national membership association for colleges and programs

of acupuncture and Oriental medicine (AOM) in the U.S. All of the

Council's member colleges, which are located in 21 states in the U.S.,

have been accredited or pre-accredited by the Accreditation Commission
                                              P.O. Box 65 120 • Ba.l rimore.MD21209 1(410)464-6040   (410)464-6042



                             Committed to Excellence in Acupm1dure and Onenta! 1i1etft'c/ne tdticaiion
                                                                                       2



for Acupuncture and Oriental Medicine (ACAOM), the national agency

recognized by the U.S . Department of Education for the accreditation of

AOM educational programs. The mission of the Council is to support its

inember institutions to deliver educational excellence and quality patient

care. Three of the Council's 56 member colleges are located in Texas. 1

      The Council publishes an acupuncture safety manual entitled

Clean     Needle      Technique       (C1VT)     Manual- Best         Practices      for

Acupuncture Needle Safety and Related Procedures (7th ed. 2015). 2 This

manual represents evidenced-based best safety practices in the use of

acupuncture needles and related techniques and forms the basis of CNT

courses that the Council offers throughout the U.S. to acupuncture

students who have been professionaJly trained at ACAOM-approved

AOM programs. Successful completion of the Council's CNT course is

required for any person who wishes to obtain national certification in

acupuncture by the National Certification Commission for Acupuncture
1
  These are the American CoUege of Acupuncture and Oriental Medicine (Houston), AOMA
Graduate School of Integrative Medicine (Austin). and Texas Health and Science University
(Austin). For a complete list of all member schools of the Council, see
http://www.ccaom.org/members.asp?sort=state. Concerning the Council generally, see
www.ccaom.org.
2 See http://'www.ccaom.org/downloads/7thEditionManual EnglishPDFVersion.pdf [hereinafter

cited as CNT ManuaIJ.
                                                                                         3


and Oriental Medicine (NCCAOM).3 Forty-four states plus the District

of Columbia recognize NCCAOM' s certification or examinations as a

prerequisite for acupuncture licensure.4 As noted in TAAOM's brief, an

applicant for an acupuncture license in Texas must pass NCCAOM's

national certification examinations.5 In addition, successful completion

of the Council's national CNT course and practical examination is also

mandated under Texas law. 6

       In addition to fully supporting the position of the TAAOM, the

Council would like to emphasize in the succeeding discussion the

importance this court's decision will have upon public safety in Texas

for those patients seeking acupuncture treatments from unqualified

chiropractors, rather than from professionally trained acupuncturists who

have completed their education and training at an ACAOM accredited

AOM program and who are currently subject to the regulation of the

Texas State Board of Acupuncture Examiners.
3
 See file:!!IC :/Users/CCA OM/Downloads/CNT%20Requirements.pdf.
4
  See http://www.nccaom.org/regulato1y-affairs/state-licensure-map. Most recently, North
Dakota authorized recognition of the national ceriification exams ofNCCAOM. See N.D. Cent.
Code         §   43-6105(l)(b),     added   by   Sen.     Bill    No.     2 191    (2015),
https://legiscan.com/ND/text/21 91 /20J5.
5
  TAAOM Brief at 30.
6
  Id. at 29.
                                                                                              4


       There is a significant disparity in the training that a chiropractor

receives in acupuncture, which is an adjunctive therapy a chiropractor

may seek to incorporate into his/her practice, and the amount of training

a professionally trained acupuncturist receives. Typically, a chiropractor

receives about 100 hours or less in acupuncture instruction. 7 Under the

accreditation standards of ACAOM, the minimum length of a

professional acupuncture curriculu1n must be at least three academic

years and composed of at least 705 hours in Oriental medical theory,

diagnosis, and treatment techniques in acupuncture and related studies

and 660 hours in clinical training.8 That is a total minimum of 1,365

hours of education and training solely in acupuncture, which is distinct

from additional education m subject areas not directly relating to

acupuncture per se, such as the biomedical sciences, counseling,



7
  Id. at 2.
8
   ACAOM, Accreditation Manual-Structure, Scope, Process, Eligibility Requirements, and
Standards 26 (July 2012), Standard 8.la. See
http://www.acaom.org/documents/accreditation manual 712.pdf. The minimum length of an
Oriental Medicine curriculum, which includes the study of Chinese herbology in addition to
acupuncture, is at least four academic years and consists of at least 2,625 hours of which there
are 705 hours in Oriental medical theory, diagnosis, and treatment techniques in acupuncture and
related studies; 450 hours in didactic Oriental herbal studies; and 870 hours in integrated
acuptmcture and herbal clinical training. Id.
                                                                                   5



     communications, ethics, and practice management that are commonly

     taught in most health education programs.

           The gross disparity in acupuncture training between these two

     health professions makes a difference not only from the perspective of

     achieving efficacy in treatment, but most importantly in protecting the

     safety of the public in Texas. As indicated in the Council's authoritative

     CNT Manual, acupuncture is associated with rare, but predictable

     adverse events. 9 These include bleeding, bruising, local pain, nerve

     injury, infections, and organ puncture and. pneumothorax caused by

     needling at an unsafe depth. "Given the nature of acupuncture needling,

     it is difficult to prevent all bleeding and bruising." 10 In addition, there is

     a risk that needles may break or become stuck during treatment, or the

     practitioner may forget to remove the needles from the patient. The

     arteries and larger veins should be avoided when acupuncture needling

     is performed and special consideration should be given when needling

     the scalp and pinna/auricle of the ear because bleeding is more common

     9
       CNT Manual at 3-23.
     (http://www.ccaom.org/downloads/7thEditionManuaJEnglishPDFVersion.pQf).
     10
        Id. at 4.




,-
                                                                                                6



due to the vascular anatomy of these structures. Among the factors that

may produce needle site pain is poor technique by the practitioner,

needling into dense connective tissue, or needling into a nerve.

       The documented presence of bleeding after acupuncture and the

risk for nerve injury and pneumothorax indicate that acupuncture

involves puncturing body tissues. Accordingly, the studies cited in the

CNT Manual amply support a conclusion by this court that acupuncture

is an incisive needling procedure and thus prohibited for chiropractors
                       11
under Texas law.

       The      extensive       training      1n    acupuncture         that     professional

acupuncturists in Texas must complete, coupled with the further

statutory mandate that acupuncture licensees in Texas must successfully

pass the Council's national needle safety course based upon the CNT

Manual, ensures that proper needle safety protocol is comprehensively

addressed including the risks associated with adverse needling events.

This degree of training, hov.rever, is not one that chiropractors in the

11
  As stated in the TAAOM Brief, " ... the Chiropractic Chapter limits chiropractic to treatment of
the musculoskeletal system and expressly prohibits chiropractors from perfonnirig incisive
procedures, with only one narrow exception for the use of needles for diagnostic blood draws."
TAAOM Brief at 1.
                                                                       7



state are currently undertaking because of the Chiropractic Board's

contention that chiropractors practicing acupuncture in Texas are not

subject to the regulatory jurisdiction of the Texas State Board of

Acupuncture Examiners.


     In view of the significant public safety issues noted above and for

all of the reasons so compelling presented in the TAAOM brief, the

Council respectfully requests this court to reverse the judgment of the

trial court and render judgment in favor of TAAOM.



Sincerely,

~iJ7;,
Jason Wright, MS, LAc
President
2360 State Rte. 89
Seneca Falls, NY 13148
Tele: (315) 568-3268
E-mail: jwright@nycc.edu
                                                                    8



                 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.


                                          ·~   / - . tJ,,,/lu
                                           /
                                          Jason Wright, MS, LAc
                                          President



              CERTIFICATION OF COMPLIANCE

     I certify on behalf of Amicus Curiae, that thi s Amicus letter
contains 1, 184 words according to the word count feature of the
software used to prepare this Amicus letter.


                                           -~-;/t:. ;J~·I·*
                                           I

                                          Jason Wright, MS, LAc
                                          President



                   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 .
                                                               9


Joe H. Thrash                         Craig T. Enoch
Assistant Attorney General            Melissa A. Lorber
Administrative Law Division           Shelby O'Brien
P.O. Box 12548                        Enoch Kever PLLC
Austin, Texas 78711                   600 Congress Ave.
Joe.Thrash@texasatto1neygeneral.gov   Suite 2800
                                      Austin, Texas 78701
                                      sobrien@enochkever.com

                                       <'   ~~ fa),,,;/.J.
                                        /
                                      Jason Wright, MS, LAc
                                      President
