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Court upholds TX chiropractors’ expansion of own practice to acupuncture

5079807131_7bfb63ec5b_bThe Court of Appeals of Texas, in an August 18 decision, upheld rules recently passed by the state’s chiropractic board allowing chiropractors to engage in the practice of acupuncture (Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners).

Although the Texas Medical Association recently had success in a challenge of similar rules allowing chiropractors to use needles in their practice, the physical differences between acupuncture needles and the needles used in the Medical Association’s case led to different outcomes in the two cases.

In response to a 2005 statutory directive to clarify the breadth of the practice of chiropractic, the Texas Board of Chiropractic Examiners promulgated new scope-of-practice rules that allowed, among other things, the use of needles in acupuncture and other medical procedures.

The new rules quickly brought a suit from the Texas Acupuncture Association, arguing that the state’s Chiropractic Act limited that practice to spine and musculoskeletal treatment and prevented chiropractors from engaging in any practice in which medical tools would pierce the skin. The case eventually made its way to the Court of Appeals of Texas in Austin, which issued a decision on the parties’ motions for summary judgment.

The Association’s primary argument against the new rules was grounded in the state chiropractic act’s prohibition on the use of “incisive or surgical” procedures by licensees, subject to certain exceptions. The Association argued that the use of needles in acupuncture was “incisive” and, thus, forbidden to chiropractic licensees.

The Association’s suit was not the first challenge to the new rules. When initially promulgated, the rules also contained language allowing chiropractors to use needles for a diagnostic practice called electromyography, or EMG. The Texas Medical Association successfully challenged this provision as impermissibly expanding the scope of chiropractic practice, based on the fact that EMG needles are beveled, which caused the Court of Appeals to declare their use “incisive” and, thus, forbidden to chiropractors.

Citing the earlier case, Justice Scott Field wrote that the Chiropractic Board’s acupuncture rules were a reasonable interpretation of statutory language. “The Chiropractic Board’s definition of ‘incision,’ which recognizes that some needles may be considered ‘incisive,’ while other needles may not, is consistent with the technical meaning of the term ‘incisive’ and also with the Legislature’s view that acupuncture needles are at least capable of being inserted into the body in a ‘nonincisive’ and ‘nonsurgical’ manner.” This latter statement was a reference to the state’s Acupuncture Act, which defines the practice as using needles in a “nonsurgical” and “nonincisive” manner.

However, the board did not prevail on all of the Association’s claims. Addressing the Association’s challenge to a different rule—one specifically permitting the practice of acupuncture–—in a consistent but slightly confusing explanation, Justice Field wrote that, although the board had been able to show that it’s interpretation of “incisive” as not including all uses of penetrating needles was reasonable, it had not shown that all acupunctures needles, as a matter of law, were nonincisive. Thus, the board was not entitled to summary judgment on that claim.

Justice Field wrote that the Acupuncture Act’s definition of the practice as “nonsurgical” and “nonincisive” could not be read as applying to the Chiropractic Board’s own enabling statute, and was, thus, not language that the board could use to show that chiropractor’s use of acupuncture needles would always be nonincisive.

The court returned the case to a lower court to rule on the question of whether the practice of acupuncture can ever involve incisive needles, but Justice Field, acknowledging the contentious and frequently confusing issue of the scope of chiropractic practice, entreated the state’s legislature for help.