Acupuncture in Texas, an Historical Overview
Written by Editor   
Tuesday, October 20, 2015 12:00 AM

Excerpts from the lawsuit between the Texas Association of Acupuncture and Oriental Medicine v. Texas Board of Chiropractic Examiners, Motion to Strike and Appellee’s Brief, offers not only an explanation of why acupuncture may be practiced by Doctors of Chiropractic, but also provides a valuable history lesson about acupuncture in Texas.

“This case is a challenge to two administrative rules of the Texas Board of Chiropractic Examiners (Board)…. These rules define ‘incision’… , state when needles may be used in the practice of chiropractic … , state that licensees of the Board may use acupuncture and reflex techniques … , and define the terms of use of acupuncture and requirements for licensees to include acupuncture in their practice."

TAAOM “seeks a declaration … that, if the amendment to Texas Occupation Code … adding ‘nonsurgical, nonincisive’ authorizes chiropractors to practice acupuncture without a license from the Board of Acupuncture Examiners, it is unconstitutional…"

“The practice of acupuncture involves methods of diagnosing and treating a patient by, among other things, short needle insertion for the purpose of obtaining a biopositive reflex response by nerve stimulation, i.e. placing short, thin needles into defined points on the human body for the relief of pain."

“Chiropractors in Texas engaged in the practice of acupuncture after the practice became widely known in the United States in the time following President Nixon’s visit to China in 1972."

“The Board outlawed the practice of acupuncture by chiropractors in the Board’s rules in 1973.  The Board acted to stop a licensee from advertising or performing acupuncture in 1974.  The Texas State Board of Medical Examiners considered acupuncture to be the practice of medicine and sought to require that only a licensed physician be allowed to practice acupuncture. … The Board of Medical Examiners’ attempts to limit the practice of acupuncture were curtailed somewhat by the issuance of [an] Attorney General Opinion … in which General Maddox opined that four sections of rules limiting the practice of acupuncture were unconstitutional."

In 1975 the Board adopted a rule that “prohibited the practice of acupuncture by chiropractors.”

“On June 9, 1988, the Board voted to repeal this part of the rule and the next part prohibiting the use of needles by chiropractors."

"The State of Texas recognized and initiated regulation of acupuncture with the creation of the Texas State Board of Acupuncture Examiners (‘TSBAE’) in 1993."

The executive director of the TSBAE on September 15, 1995 “requested an Attorney General’s Opinion on the matter… . That request resulted in [an] Attorney General’s Opinion … , in which the Attorney General opined that acupuncture was not within the legal scope of [the] practice of chiropractic."

“Following the issuance of that Attorney General’s Opinion …. members of the Board, along with the Texas Chiropractic Association, worked with the Legislature to change the law to allow chiropractors to practice acupuncture.  In the 1997 regular legislative session, the Legislature took action to reverse the effect of [that Attorney General’s Opinion].  At that time, the TSBAE was undergoing Sunset review.  Certain members of the Legislature sought to allow chiropractors to continue to practice acupuncture.  the vehicle for their actions was Senate Bill 361, the bill to continue the TSBAE in existence."

“Senator Madla, the bill’s sponsor, offered ... amendments to the bill.  The first amendment inserted the words ‘nonsurgical, nonincisive’ into the definition of acupuncture in the Acupuncture Act.  This amendment was adopted by the Senate"

“The bill was then passed by the Senate and sent to the House.  After being received in the House of Representatives, S.B. 361 was the subject of a bill analysis issued by the House Research Organization."

The House Committee on Public Health prepared a different strategy.  “Committee amendments … would have amended the Chiropractic Act … to allow chiropractors to practice acupuncture.  Because these amendments attempted to amend the Chiropractic Act rather than the Acupuncture Act, when they were offered on the floor of the House, they were subject to points of order as not germane to the original bill.  The points of order were sustained and the amendments were not added to the bill.  This left the House version of the bill without any amendment to the language concerning the definition of acupuncture."

“When the House version, without language concerning the definition of acupuncture, was presented to the Senate, the Senate voted not to concur and requested a conference committee.  The House agreed to a conference committee and appointed conferees on May 21, 1997.  The conference committee restored the addition of ‘nonsurgical, nonincisive’ to the definition of acupuncture and the agree version was adopted in each house shortly thereafter.  This version was signed by the Governor and then became the law at issue here, with the addition of ‘nonsurgical, nonincisive’ to the definition of acupuncture."

“A new request was made to the Attorney General for an opinion on whether it was legal for Texas chiropractors to practice acupuncture.   This request led to the issuance of [an Attorney General opinion that] … concluded that the Legislature had intended to change, and had in fact, changed the law to allow chiropractors to practice acupuncture in Texas.  The opinion concluded that … the definition in the Acupuncture Act effectively applied to the Chiropractic Act, both statutes regulating a health care profession.  The opinion also concluded that the legislative history of the bill supported the idea that the intent of the amendment was to ensure that chiropractors could legally practice acupuncture."

“The creation of an exemption from the Acupuncture Act is consistent with the general subject of the bill, which was the sunset legislation for the Acupuncture Board."

“The Board was subject to Sunset review during the 2005 legislative session, … As a result of the sunset Review, the legislature amended the Chiropractic Act and made several changes regarding scope of practice, including adding a new definition for ‘surgical procedure’ and mandating that the Board adopt rules clarifying activities within the scope of practice through an inclusive rule making process."

“A valid function of the Acupuncture Act is to define who is exempt from its application as well as who is subject to it.  Both chiropractic and acupuncture are within the practice of medicine, as evidenced by their respective limitations that show intent not to allow the professions to engage in the unauthorized practice of medicine.  Thus, each profession is limited to its individual scope of practice.  This does not mean that there may be no overlap in the respective practices.  By declaring in the definition of acupuncture that it is a ‘nonsurgical, nonincisive’ procedure, the Legislature has clarified the exemption of other health care professions to ensure that chiropractors are exempt from the Acupuncture Act."

“The Occupations Code contains a comprehensive plan of regulation of health care professions in Texas. … These laws are best construed as a whole rather than as unique, unrelated parts.  The Medical Practice Act includes exemptions from its application for various other healthcare professions.  The Acupuncture Act exempts from its application other licensed health care professionals practicing within the scope of the licenses …. Chiropractors are exempt from the Acupuncture Act so long as they are practicing within their scope of practice."

“There is nothing in the statute that limits chiropractors more than any other health care profession from encroaching on the unlimited scope of practice of medical doctors.  All practitioners other than physicians must stay strictly within their respective scopes of practice."

“The Legislature’s conclusion that acupuncture is not an incisive or surgical procedure provides not only statutory authority, but also a logical rationale for the Board’s determination that the insertion of an acupuncture needle is not an incisive procedure.  If it is within the authority of the Legislature to determine that the insertion of an acupuncture needle is not an incisive or surgical procedure in the Acupuncture Act, through what logic would the Board be prohibited from making exactly the same determination in its own rules?"

“The Acupuncture Act declares that the Act ‘does not apply to a health care professional licensed under another statute of this state and acting within the scope of the license.’ The amendment to add ‘nonincisive, nonsurgical’ clarifies that a chiropractor acting within the scope of his or her practice is exempt from the Acupuncture Act."

The current lawsuit brought by TAAOM and subsequent appeal is “not about the behavior of the Board in previous debates and lawsuits concerning the proper scope of practice of chiropractic.  It is not about the relative qualifications of licensed chiropractors versus licensed acupuncturists to perform acupuncture.  These issues are a smokescreen intended to prejudice the Court and infer that the Board and the chiropractic profession are out of control and are a danger to the public health."

“It is the position of the Board that this amendment to the law was intended to and was effective to create an exemption for chiropractors practicing within their scope of practice from the requirement to be separately licensed as an acupuncturist."