                            QWficeof tiy Bttornep dhneral
                                         &ate of ?D;exae
DAN MORALES
 .4TTORNEY
        GENERAL                              h4ay2,1994

      David R Smith, M.D.                            Opinion No. DM-292
      Commissioner of Health
      Texas Department of Health                     Re: Whether the Texas Board of Health is
      1100 West 49th Street                          authorized tmder the Medical Ibdiologic
      Austin, Texas   78756-3 199                    Technologist    Certitication    Act, article
                                                     4512m, V.T.C.S., to promulgate rules dis-
                                                     continuing general certitication of medical
                                                     radiologic technologists, and implementing a
                                                     system of specialty certitication in diagnostic
                                                     radiography, nuclear medicine, and radiation
                                                     therapy @Q-61     1)

      Dear Dr. smith:

              You ask whether the Texas Board of Health (the “board”) is authorized under the
      Medical Radiologic Technologist Certification Act, V.T.C.S. article 4512m (the “act”), to
      promulgate rules discontimting general certilication of medical radiologic technologists,
      and implementing a system of specialty certitkation for three disciplines. The act governs
      the certitication of medical radiologic technologists. For example, it provides that a
      person must hold a certiticate to perform a radiologic procedure, with certain exceptions.
      V.T.C.S art. 4512m, $2.07. It also requires the board to adopt rules establishing
      minimum standards for issuing certificates. Id. 8 2.05(a)(l). In addition, it creates the
      Medical Radiologic Technologist Advisory Board (the “advisory board”) “as an advisory
      board to the Texas Board ofHealth.” Id. § 2.04(a).’

              By way of background, you explain that at the present time the Texas Department
      of Health (the “department”) issues two types of certilicates: (1) a general certiticate
      which allows the certiticate holder to perform any and all radiologic procedures, and (2) a
      limited certificate which allows the certi6cate holder to perform radiologic procedures that

               1% act prwtdes that the advkq board “shall rcccmrncadfor the wnsidcratioa of the Texas
      Bead of Health roles ‘o implanent standa& adopted m&r this Act.. .” V.T.C.S. art. 4512111,
      8 2.04(d). The act also requires the advisory board to trammad examinations. Id. g 2.04(e).




                                                p.   1551
David R. Smith, M.D. - Page 2                  (DM-292)




are Iimited to specigc parts of the human body. 2 The advisory board, however, has
recommended that the board issue rules implementing a new licensing scheme. You give
us to understand that the medical radiologic technology field is comprised of three
disciplines: diagnostic radiography, nuclear medicine, and radiation therapy. You state
that the advisory board

            wishes to recommend rules to the board] to establish a separate
            general certificate for each of the three disciplines or a single general
            certificate with three separate specialty designations. . An
            individual would not be able to perform radiologic procedures in any
            discipline unless he or she held a genera) certithxtion that covered
            that Lpcifk discipline.
It is your position that the board is not authorized to adopt such rules.

         Generally, an administrative agency can adopt only those rules that are authorized
by and consistent with its statutory authority. Texas Fire & Car. Co. v. Harris County
Bail BondBd, 684 S.W.Zd 177, 178 (Tex. App.- Houston [14th Dist.] 1984, writ refd
n.r.e.). An administrative agency may not adopt rules which impose additional burdens,
conditions, or restrictions in excess of or inconsistent with those statutory provisions. Id.;
Ho&wood Calling v. Public Util. Comm’n of Texas, 805 S.W.Zd 618, 620 (Tex.
App.-Austin 1991, no writ). The determinative factor as to whether an administrative
agency has e-xceeded its authority is whether the rule is in harmony with the general
objectives of the statute. Ho&wood Calling, 805 S.W.2d at 620 (citing Gersl v. Oak
Cl~$Sav. & Loan Ash, 432 S.W.2d 702, 706 (Tex. 1968)). In making this determina-
tion, one must look not only to the particular provision of the act but to all applicable
provisions. Id.

        Section 2.03 of the act in part sets forth the following detinitions that are relevant
to your query:

                 (5) “Radiologic procedure” means any procedure or article
            intended for use in the diagnosis of disease or other medical or dental
            conditions in humans (including diagnostic X-rays or nuclear
            medicine procedures) or the cure, mitigation, treatment, or


         ZThe bar& cum111 roles regarding the cutitication of medical radiologic technologists arc set
for& at title 25 of the Texas Adminimative C&e, chapter 143. The bead currently issues limited
wrliocates in -      cale’Jolics: ‘he skoll, cksl, spine, exue.milies, deml, podiatric, and chiroprsctic.
See 25 T.A.C. $?143.2.




                                              p.   1552
David R. Smith, M.D. - Page 3             (DM-292)




          prevention of disease in humans that achieves its intended purposes
          through the emission of radiiion.



                 (8) “Certikation”  means an authorization         to   administer
          radiation to a person for medical purposes.

               (9) “General certigcation” means an authorization to perform
          radiologic procedures authorized by this Act.

               (10) United certification” means an authorization to perform
          radiologic procedures that are limited to specitk parts of the human
          MY.
               (11) “Temporary certification, general or limited,” means an
          authorization to perform radiologic procedures for a limited period,
          not to exceed one year.

V.T.C.S. art. 4512m, $2.03(5), (8) - (11).

        Section 2.05 of the act sets forth the board’s rukmaking authority. It generally
authorizes the board to adopt rules necessary to implement the act, V.T.C.S. art. 4512m,
4 2.05(e), and specifically provides in pertinent part that

                [t]he Texas Board of Health shall establish different classes of
           certikates to include all radiologic procedures used in the course
           and scope of the practice of practitioners licensed in this state. The
           Texas Board of Health may issue general and limited certificates and
           genera) and limited temporary certificates.
Id. § 2.05(b).

         You suggest that the board is not authorized to adopt rules to implement specialty
certiiicates in lieu of general certificates because the legislature has not expressly provided
that it may do so. You contend that “the legislature has generally expressly stated in a
licensing statute when the legislature wishes to allow or require specialty designations or
specialty certiticates,” citing the now-repealed Licensed Professional Counselor Act,
V.T.C.S. art. 4512g, 8 13 (repealed by Acts 1993. 73d Leg., ch. 581, 5 20 (eff. Sept. 1,
 1993)), and the Texas Medical Physics Practice Act, V.T.C.S., art. 451211, 3 13. “Since
the legislature did not specify specialties in the [act], one may conclude that the legislature
did not intend to require specialties under the [act], other than the limited certitlcation.”
You also suggest that the board is not authorized to establish specialty certificates because




                                           p.   1553
David R Smith, M.D. - Page 4                  (DM-292)




this would, in et&t, establish a new category of “limited certification” which is not
provided for by section 2.03(10), the section in the act detining this term. See supra.

        We disagree with your analysis and conclusion for the following reasons.
Although the legislature has only defined general and limited certitication, we believe that
the first sentence of section 2.05(b) must be read broadly to authorize the board to
establish a variety of classes of certificates, especially when read in conjunction with the
succeedmg sentence which provides that the board is authorized to issue general and
limited certiticates and temporary certiticates. If the board were confhted to issuing
general and limited certiticates, the first sentence of section 2.05(b) would be wholly
redundant and therefore meaningless. See Chevron Corp. v. Redmon, 745 S.W.2d 314,
3 16 (Tex. 1987) (m statutory construction, one should give effect to all words of a statute
and not treat any statutory language as surplusage if pos~ible).~

        This construction of section 2.05(b) is also supported by an examination of the act
as a whole. Section 2.05(a)(l) provides that the board shall adopt rules establishing
“minimum standards for ksuing, renewing, suspending, and revoking certiticates issued
under [the act].” In addition, section 2.04(d) provides that the “advisory board shall
recommend for the consideration of the Texas Board of Health rules to implement
standards adopted under [the act] and shag recognize existing standards that apply to the
scope of practice for both general and limited certifications.” Furthermore, section 2.02 of
the act states that its purpose is “to protect the health and safety of the people of this state
from the harmful effects of excessive radiation used for medical purposes by establishing
minimm~ standards for the certitication of medical radiologic technologists.” These
provisions give the board broad power to promulgate standards for certitication, and the
authority to consider both practice standards and public health and safety in doing so. We
believe that promulgating rules implementing specialty certitication would be consistent
with this authority and the general purpose of the act.

        %e previsions of Smatc Bill 32 ending ‘he Medical Radiologic Tecbnok@sI Culi6cation Aa
we~.akkdtoSeaateBill1439byaflooramcadmtnt            on third reading in the house. H.J. of Tex., 7Otb
Le.& at 3949 (1987). Senate Bill 1439 was enaaed as chapter 1096. See Acts 1987,7Oth Lq., ch. lO%,
at 3717. A Senate commiaee on Health and Hwnan Services bill analysis of Senate Bill 32 desxii
seaion 2.05(b) as follmvs:




Senate Cmmn. on Health and Human Sewices, Bill Analysis, S.B. 32,701h Leg. (1987) (emphasis added).
Uscdtbctam’iacluding”suggeasthatthclegislaNcdidmtintcndtocontincthebosrdtoissuing
general and limited cauficatca and general and liiled temporaly eerlilicam.




                                              p.   1554
David R. Smith, M;D. - Page 5                 (DM-292)




         We add two further notes in conclusion. Fii although we conclude above that
the board is authorized to adopt rules establishing speciaky certification in lieu of general
or limited certification, we do not believe that the act requires the board to do so. The
board’s current rules providing for general and limited certification are clearly authorized
by and consistent with its statutory authority. Furthermore, although your concern that a
specialty certification scheme “would [wreak] havoc in the profession and among current
certificate holders and their employers” is not a legal reason for refraining from adopting
the rules, it is certainly a policy consideration that the board may take into account in
deciding whether or not to adopt them.

        Second, you state that the advisory board’s recommendation to establish the
specialty certification scheme sterns from

           its concern over the lack of training or education individuals may
           have. Generally, individuals are trained or educated in one, but not
           eJl, of the disciplines. However, the general certification allows an
           individual educated in one area to practice in all three areas.
We note that there are several ways in which the board might address this concern. For
example, it is clear that the act authorizes the board to adopt rules requiring that every
certificate applicant be trained and examined in all three disciplines of ihe field of
radiology.4




          ‘See V.T.C.S. art. 4512m. 8 2.05(a)(l) (requiring the board to adopt standa& for issuing
catitiuM)), (a)(2) (reqoiring the bomd to adopt nllcs establishing minimum standards for approving the
auriada and programs to train individuals to perform mdiologic procedures), (a)(3) (requiring the boatd
to adcgt roles establishing minimum standa& for approving the instmctors who teach approved cunicula
and programs), (d) (authorizing the board to cslablii @IeIincs, including continuing education
repuinmuts      for medical radiologic technologists, and to pre.pa~ and conduct an examination for
cutiiicate applicants).




                                              p.   1555
David R Smith, M.D. - Page 6           (DFf-292)




                                   SUMMARY

               The Texas Board of Health is authorized under the Medical
          Radiologic Technologist Certification Act, article 4512m, V.T.C.S.,
          to promulgate rules implementing a system of specialty certification
          in diagnostic radiography, nuclear medicine, and radiation therapy.




                                                   DAN      MORALES
                                                   Attorney General of Texas

JORGE VEGA
Fiist Assistant Attorney General

DREWDURHAM
Deputy Attorney General for Criminal Justice

WILL PRYOR
special c0unse1

RENEA HJCKS
State Solicitor

SARAH J. SHIRLEY
Chair, Opiion Committee

Prepared by Mary R. Crouter
Assistant Attorney General
