                                              The Attorney          General of Texas

    JIM MATTOX                                                February 16. 1984
    Attorney General


    Supreme      Court Building             Honorable Margaret Moore              Opinion No. JM-125
    P. 0. Box 12546                         Travis County Attorney
    Austin.    TX. 76711. 2546              P. 0. Box 1748                        Re: Constitutionality of rules
    5121475.2501
    Telex    910/674-1367
                                            Austin, Texas   78767                 of Texas State Board of Medical
    TelecoDiar      512/475-0266
                                                                                  Examiners relating to acupunc-
                                                                                  turists
    714 Jackson,    Suite 700
                                            Dear Ms. Moore:
    Dallas,   TX. 75202-4506
    2141742.6944
                                                 You have requested our opinion as to whether the current
                                            regulations of the Texas State Board of Medical Examiners concerning
    4624 Alberta       Ave., Suite    160   the practice of acupuncture violate the constitutional rights of
    El Paso, TX.       79905.2793           acupuncture patients and practitioners. We find that four of the
    9151533.3464
                                            regulations do not meet the "reasonable relationship test."
r
    ,001 Texas,    Suite 700                     The Medical Practices Act, article 4495b, section 1.03,
    Houston.    TX. 77002-3111              subsection 8(A), V.T.C.S., defines as "practicing medicine" those
    71312236666
                                                      who shall diagnose, treat, or offer to treat any
                                                      disease or disorder, mental or physical, or any
    606 Broadway,        Suite 312
    Lubbock,     TX.    79401.3479                    physical deformity or injury by any system or
    6061747-5236                                      method and to effect cures thereof and charge
                                                      therefor, directly or indirectly, money or other
                                                      compensation.
    4309 N. Tenth, Suite S
    McAllen,     TX. 76501.1665
    5121662.4547                            For purposes of this opinion, we will assume that this definition
                                            encompasses all who perform acupuncture for compensation. Thompson V.
                                            Texas State Board of Medical Examiners, 570 S.W.Zd 123, 127, (Tex.
    200 Maln Plaza. Suite 400
                                            CIV. APP. - Tyler 1978,        writ  ref'd n.r.e.), citing several
    San Antonio,  TX. 76205.2797
    5121225-4191
                                            out-of-state decisions, held that acupuncture was within the
                                            definition of practicing medicine. Nevertheless, a number of other
                                            healing srts or professions which otherwise would constitute the
     An Equal      Oppofiuniiyl             practice of medicine have been excluded from the definition of
     Affirmative     Action     Employer    "practicing medicine" by the legislature. See, e.g., articles 4512(b)
                                            (chiropractors); 4512~ (psychologists); 4512d (athletic trainers);
                                            4512e (physical therapists); 4513-4528c (nurses); 4542a (pharmacists);
                                            4543-4551h    (dentists);    4552-1.02   (optometrists);    456?-4575a
                                            (podiatrists), V.T.C.S. Acupuncture has not been so excluded.

                                                 The Texas State Board of Medical Examiners Is charged with the
                                            primary responsibility for regulating the practice of medicine, and




                                                                         p. 529
Honorable Margaret Moore - Page 2   (JM-125)




has the authority to issue regulations concerning acupuncture.
V.T.C.S. art. 4495b. The question raised by your letter is whether 22
Texas Administrative Code, sections 183.1-183.12 meet constitutional
standards. These sections establish a system in which physicians
supervise acupuncturists. In addition to giving the physician general
responsibility for the acupuncture practitioner, the regulations are
very specific in regard to the place and manner of the supervision.
Among the requirements of the regulations are the following: (1) the
acupuncturist is not allowed to work in a location "physically
separate" from the supervising physician, 22 T.A.C. 9183.6(a); (2) a
physician may supervise only one acupuncturist, 22 T.A.C. 5183.7; (3)
there may be no separate billing for services rendered by the
acupuncturist, 22 T.A.C. $183.5; and (4) an acupuncturist must wear a
name tag with printing at least 3/8 inches in height with the
designation "Mr., Miss, Mrs. or Ms." and surname plus "acupuncturist."
22 T.A.C. §183.4(c).

     The "reasonable relationship test" is the basic constitutional
standard for determining whether state statutes and regulations comply
with the Fourteenth Amendment to the United States Constitution. The
reasonable relationshi~ptest requires that regulations and statutes be
rationally related to a constitutionallv nermissible nuroose. Vance
V. Bradley    440 U.S. 93 (1979); Sai Antonio Indepen'dent School
District v.'Rodrigues, 411 U.S. 1 (1973). In the case of the board's
regulations regarding acupuncture, protection of the public health is
unquestionably a permissible purpose. Thus, here the only issue under
this test is whether the board's regulations are reasonably calculated
to effect that purpose.

     In Wensel V. Washington, (D.C. Super. Ct. 1975), reprinted as the
appendix to Lewis V. District of Columbia Commission on Licensure to
Practice the Healing Art, 385 A.2d 1148, 1154 (D.C. 1978), the court
used the "reasonable relationship test" to examine regulations which
permitted only a licensed physician or someone under the direct and
immediate supervision of a licensed physician to perform acupuncture
and required that the acupuncturist not receive fees from patients but
instead be an employee of the supervising physician. The parallels to
the Texas regulations are quite obvious. The court in Wensel found
that local medical schools did not train physicians in acupuncture and
that doctors in the District of Columbia did not have skill and
knowledge in the area. The court also found that the acupuncture
regulations, which purported to protect the public health, in fact
authorized licensed physicians to administer or supervise acupuncture
treatment, notwithstanding their total lack of knowledge of
acupuncture, and prevented knowledgeable and skilled individuals from
practicing the art. The court held that under such facts the entire
body of regulations was without a rational basis and therefore
violated the due process clause of the United States Constitution.




                               p. 5:o
L




    Honorable Margaret Moore - Page 3   (JM-125)




         The court in Andrew6 V. Ballard, 498 F. Supp. 1038, 1051 (S.D.
    Tex. 1980)) which held unconstitutionally void earlier regulations of
    the Texas Board of Medical Examiners respecting acupuncture, found
    that "Texas medical schools . . . do not presently offer formal
    training in either the theory or practice of acupuncture." You state
    that this continues to be the case. 22 Texas Administrative Code,
    sections 183.1-183.12 require that a supervising physician submit
    information on his or her professional background, including medical
    education, internship, residency, hospital staff positions, and "such
    other information the board deems necessary, especially including his
    or her fsmiliarity with the practice of acupuncture." However, you
    state that the board approves supervising physicians without actually
    examining or testing their knowledge of or competency in the field of
    acupuncture. This failure of the board to examine or test sponsoring
    physicians' competence in the particular field of acupuncture and the
    continuing absence of formal training in acupuncture in the state's
    medical schools parallel the fact findings of the court in Wensel that
    resulted in the invalidation of acupuncture regulations of the
    District of Columbia.

         These facts become of greater constitutional significance when
    they are viewed in the context of the four specific provisions of the
    Texas regulations which were referred to above. We can find no
    rational relationship between protecting the public health and (1)
    restricting an acupuncturist from having "an office independent of or
    physically separate from the supervislng physician" without a relevant
    description of the work prohibited in that office or regardless of the
    proximity of the office to the supervising physician and his ability
    to supervise, (2) allowing only one acupuncturist per supervising
    physician, without regard to the physician's competence, (3)
    preventing separate itemized billing for acupuncturist services, or
    (4) compelling the wearing of lapel pins. Hence, the respective Texas
    Administrative Code provisions, i.e., the last sentence of subsection
    (a) of section 183.6,   the first sentence of section 183.7, section
    183.5, and subsection (c) of section 183.4, are void on their face.
    When regulations such as these are coupled with a regulatory scheme in
    which there is no meaningful examination into the competency of the
    sponsoring physician in the particular field of acupuncture and apply
    in a state whose medical schools offer no formal training in
    acupuncture, then, as in Wensel, the regulations as a whole may not be
    reasonably related to safeguarding the public health and could
    therefore be unconstitutional in their entirety.

                                 SUMMARY

                 Four specific Board of Medical         Examiners
              Regulations, concerning acupuncture,      22  Texas
              Administrative Code, sections 183.4(c),   183.5 the
              last sentence of section 183.6(a), and    the first




                                   p. 531
Honorable Margaret Moore - Page 4   (JM-125)




          sentence of section 183.7, are in violation of the
          Fourteenth Amendment of      the United     States
          Constitution because    there   is   no   rational
          relationship between them and the protection of
          the public health.




                                        JIM     MATTOX
                                        Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Colin Carl
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl




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