                              QBffice    of the RIttornep        @eneral
                                           State    of QCexae
DAN MORALES                                    July 8, 1997
 ATTORNEY
       OENERAL

   Bruce A. Levy, M.D., J.D.                          Opinion No. DM-443
   Executive Director
   Texas State Board of Medical Examiners             Re: Authority of a physical therapist to perform
   P.O. Box 2018                                      needle electromyography testing (RQ-928)
   Austin, Texas 78768-2018


   Dear Dr. Levy:

           On behalf of the State Board of Medical Examiners (the “board”), you have asked this office
   a series of questions relating to the authority of a physical therapist to perform a procedure called
   needle electromyography. The questions arise, as we understand it, Tom a controversy as to whether
   this procedure requires specialized medical training, and as to whether such testing invariably
   involves a diagnosis of the sort which would constitute the practice of medicine. This office has and
   professes no skill in the technical questions which may be involved here, for the resolution of which
   we will defer to the board. Rather, we restrict ourselves to the legal questions involved. Here too
   we find the decision of the board at its August 17, 1996 meeting, a transcript of which has been
   provided to us, to be entitled to great weight.

            You ask first whether the performance of needle electromyography is the practice of
   medicine, and falls within the scope of practice for licensed physicians. The practice of medicine
   is detined by V.T.C.S article 4495b, section l.O3(a)(12), as follows:

                    A person shall be considered to be practicing medicine within this Act:

                  (A) who shall publicly profess to be a physician or surgeon and shall
              diagnose, treat, or offer to treat any disease or disorder, mental or physical,
              or any physical deformity or injury by any system or method or to effect
              cures thereof; or

                 (B) who shall diagnose, treat, or offer to treat any disease or disorder,
              mental or physical, or any physical deformity or injury by any system or
              method and to effect cures thereof and charge therefor, directly or indirectly,
              money or other compensation.

           The statutory definition of the practice of medicine is a broad one, as this office has noted
   in the past. Attorney General Opinion DM-423 (1996) at 2. Moreover the board has express
Bruce   A. Levy, M.D., J.D. - Page 2                       (DM-443)




statutory authority to “determine whether or not an act constitutes the practice of medicine.” Id.
(citing V.T.C.S. art. 4495b, 5 3.06(d)(l)). The board by a resolution adopted at its meeting on
August 17, 1996, has so decided, and this office defers, as it customarily does, to a reasonable
interpretation by a state agency of the statute it is charged to enforce. Accordingly, we answer your
first two questions in the affbmative. The decision by the board.that needle electromyography
constitutes the practice of medicine and is within the scope of practice of a licensed physician is a
reasonable one.

        You next ask whether the practice of needle electromyography falls within the scope of
practice of a licensed physical therapist. As you are aware, the Texas Board of Physical Therapy
Examiners has taken the position that it does. The Board of Physical Therapy Examiners’ position
is based upon its interpretation of the definition of physical therapy in its enabling statute, which
includes the following language: “Physical therapy includes the testing and measurement of the
function of the musculoskeletal, neurological, pulmonary and cardiovascular systems . . . .” V.T.C.S.
art. 4512e, 5 l(l).’

        Based upon this interpretation, the Board of Physical Therapy examiners in 1993 adopted
by rule a definition of physical therapy which includes the practice of electromyography. 22 T.A.C.
3 321.1. In our view, the decision that electromyography is “testing and measurement” of the sort
described in article 4512(e), section l(1) is not unreasonable. Under section 2G of article 4512e, the
Board of Physical Therapy Examiners is charged with the enforcement of the Physical Therapy Act.
Accordingly, its reasonable interpretation of that act is entitled to the same deference we give to your
interpretation of the Medical Practice Act. Therefore we answer your third question in the
affirmative as well. The decision by the Board of Physical Therapy Examiners that electro-
myography is within the scope of practice of a licensed physical therapist is a reasonable one.

        You next ask which state agency or agencies have the authority to regulate such practice.
Insofar as electromyography constitutes the practice of medicine, you have that authority. Insofar
as electromyography is within the scope of practice of a licensed physical therapist, the Board of
Physical Therapy Examiners has that authority. The question is directly analogous to one this office
considered in Attorney General Opinion DM-423. In that opinion request, the board asked whether
a particular procedure was within the practice of medicine, and whether it was within the practice
of podiatry. We declined to answer whether the particular therapy constituted podiatry,.noting that
“the determination of what constitutes the practice of podiatry is the business of the Board of
Podiatric Medical Examiners more than of this office.” Attorney General Opinion DM-423 (1996)


          ‘The act further provides that “a licenseissued hereunder shall not authorize the diagnosis of diseases or the
practice of medicine as defmed by law.” A brief submitted in response to this request suggests that electromyography
is generally diagnostic. A determination of what constihltes diagnosis would, in our view, require expertise that this
office does not purport to possess,as well as factual determinations of a sort that we cannot make in the opinion process.
We defer here to the informed judgment of the Boards of Medical and Physical Therapy Examiners as to when and
whether the practice is diagnostic.




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Bmce A. Levy, M.D., I.D. - Page 3                    (DM-443)




n.1 at 4. However, we further noted that if the relevant body did so decide, the Board of Medical
Examiners could not regulate the activity of licensed podiatrists in that regard. Id.Here, the rule
adopted by the Board of ~Physical Therapists is a clear and reasonable determination that
electromyography is within the scope of practice of physical therapists. For that mason, and because
by its terms the Medical Practice Act does not apply to “duly licensed physical therapists who
contine their activities or practice strictly to physical therapy and who are not in violation of any law
relating to physical therapy practice,” the board has no regulatory authority over physical therapists
practicing electromyography. V.T.C.S. art. 4495b, 5 3.06(a)(7).

         To answer your tinal question, the jurisdictional limit recited above would appear to be the
principal limitation on your rule-making authority, and conversely on that of the Board of Physical
Therapy Examiners as well. ,Accordingly, the development of any general rules regulating this
activity would require the cooperation of both boards, and is not within the province of either board
exclusively. Physical therapists would, in their practice, be governed by the rules of the Board of
Physical Therapy Examiners, doctors by those of the Board of Medical Examiners.




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Bruce A. Levy, M.D., J.D. - Page 4                 (DM-443)




                                       SUMMARY

               The decision by the aboard of .Medical Examiners that needle
           electromyography constitutes the practice of medicine and is within the scope
           of practice of a licensed physician is a reasonable ene. The decision by the
           Board of Physical Therapy Examiners that eleetromyography is within the
           scope of practice of a licensed physical therapist is a reasonable one. Insofar
           as electromyography constitutes the practice of medicine, the Board of
           Medical Examiners has the authority to regulate the activity. Insofar as
           electromyography is within the scope of practice of a licensed physical
           therapist, the Board of Physical Therapy Examiners has that authority.
           Accordingly, the development of any general rules regulating this activity
           would require the cooperation of both boards, and is not within the province
           of either board exclusively. Physical therapists would, in their practice, be
           governed by the rules of the Board of Physical Therapy Examiners, doctors
           by those of the Board of Medical Examiners.




                                              DAN MORALES
                                              Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General




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