Decision in Acupuncture V. Chiropractic
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Monday, August 29, 2016 12:00 AM

In Brief:

  • The appeals court affirms the denial of the Acupuncturist's motion for summary judgment except for one part.
  • The appeals court affirms the upholding of Chiropractic's motion for summary judgment.
  • The court says dismissal of the portion of the Acupuncturist's claim to the validity of TBCE Rule 78.14 was not correct because both parties "failed to establish entitlement to judgment as a matter of law."
  • The Parties may appeal the decision to the Texas Supreme Court or let the case return to the trial court so that the last question can be decided.
  • The court opined that the history of the legislative and legal tug-of-war between chiropractic and other medical providers “underscores that the scope of chiropractic vis-a-vis other healthcare fields is a puzzle best solved by the Legislature in a clear and precise manner, rather than leaving these policy-laden issues to the Judiciary for a determination of legislative intent from statutory language that is, to say the least, not the model of clarity. We respectfully request that the Legislature solve this problem.”
  • The Court stated "Because each statute serves the purpose of defining and regulating a separate health-care field ... We cannot conclude that the Legislature necessarily intended for the respective regulatory authorities ... to apply the same meaning to the term “incisive,” and accordingly, we will not construe the Chiropractic Act as if it includes the Acupuncture Act’s definition 'acupuncture.'”
  • On the acupuncturist's claim that the Chiropractic Act violates the Texas Constitution to the extent it permits chiropractors to practice acupuncture, the court stated, "because we cannot conclude, as a matter of law, that the Chiropractic Act authorizes chiropractors to practice acupuncture, we need not decide" this issue.

The Texas Association of Acupuncture and Oriental Medicine (the Acupuncture Association) sued the Texas Board of Chiropractic Examiners (the Chiropractic Board) asserting that certain chiropractic rule provisions are void because they authorize chiropractors to perform acupuncture, impermissibly expanding the scope of practice for chiropractors beyond that permitted by statute.  In 2015 the district court rendered its final order.  The TAAOM filed for a Summary Judgement, but was denied. The TBCE also filed a motion for summary judgement and the court granted the TBCE’s motion.  The Acupuncture Association filed the appeal considered by the appeals court.

The court affirmed the judgements of the trial court with the exception of the portion of the trial court’s judgment dismissing the Acupuncture Association’s challenge to the Chiropractic Board’s rule expressly authorizing acupuncture. Said the court, “the trial court did err, however, in granting summary judgment in favor of the Chiropractic Board with respect to the Acupuncture Association’s challenge to the validity of Rule 78.14. Because both the Chiropractic Board and Acupuncture Association have failed to establish entitlement to judgment as a matter of law on this claim, we reverse that portion of the trial court’s judgment and remand the cause for further proceedings on this issue. We affirm the remainder of the trial court’s judgment in favor of the Chiropractic Board on the Acupuncture Association’s claims.”

Both parties (The Acupuncture Association and the Chiropractic Board) now have decisions to make.  Either one, or both, could appeal the decision to the Texas Supreme Court.  Or both could let the case return to the trial court so that the last question can be decided.

The court also opined that the history of the legislative and legal tug-of-war between chiropractic and other medical providers “underscores that the scope of chiropractic vis-a-vis other healthcare fields is a puzzle best solved by the Legislature in a clear and precise manner, rather than leaving these policy-laden issues to the Judiciary for a determination of legislative intent from statutory language that is, to say the least, not the model of clarity. We respectfully request that the Legislature solve this problem.”

This tug-of-war has a standing of some 100 years in Texas, but in 2005, the Texas Legislature mandated that the Chiropractic Board “adopt [formal] rules clarifying what activities are included within the scope of the practice of chiropractic and what activities are outside that scope.”  In response, the Chiropractic Board promulgated scope-of-practice rules that, among other things, authorized chiropractors to perform a procedure called needle EMG, a procedure called manipulation-under-anesthesia (MUA), and acupuncture.  The Texas Medical Association subsequently sued the Chiropractic Board.

The TMA did not challenge those portions of the rules dealing with acupuncture.  The Acupuncture Association subsequently filed this suit, challenging those portions of the Board’s rules that authorize acupuncture.

The Acupuncturists sought declarations that various provisions in the Chiropractic Board’s scope-of-practice rules authorizing chiropractors to practice acupuncture without a license from, or oversight of, the Texas State Board of Acupuncture Examiners exceed the statutory scope of practice for chiropractors and, as a result, are invalid.  The Acupuncture Association moved for summary judgment on its claims that the Chiropractic Board’s rules and the Chiropractic Act are invalid.  The trial court granted the Chiropractic Board’s motion and denied the Acupuncture Association’s motion.

It was up to the parties moving summary judgment to establish its entitlement to judgment as a matter of law by conclusively establishing each element of its cause of action, or to conclusive negate at least one element of each of the claims of the opposing party’s claims.

The Acupuncture Association argues that the rule provisions at issue impermissibly attempt to narrowly define “incisive” … in a manner that generally permits the use of needles, including acupuncture needles. The Acupuncture Association contends that the statutory scope of practice more broadly prohibits the use of any needles in the practice of chiropractic, except for diagnostic blood draws, and that any penetration of the skin by a needle is “incisive.”  Under the Acupuncture Association’s construction, chiropractors are not strictly engaged in the practice of chiropractic when they practice acupuncture because acupuncture needles are not used “for the purpose of drawing blood for diagnostic testing.” Consequently, the Acupuncture Association contends that the trial court erred in upholding the challenged rules permitting acupuncture by chiropractors and in granting summary judgment in favor of the Chiropractic Board.

In response, the Chiropractic Board argues that the trial court did not err in granting summary judgment … because the unambiguous language … “the Acupuncture Act” creates an express exemption for chiropractors that allows them to perform acupuncture, to the extent it is otherwise performed within the scope of chiropractic practice, without being subject to the requirements of the Acupuncture Act. One can reasonably conclude that the Legislature, by defining acupuncture as a “nonincisive, nonsurgical” procedure, “brought that procedure into the scope of practice of chiropractic.” Alternatively, the Chiropractic Board asserts that the definition of “acupuncture,” as used in the Acupuncture Act, is ambiguous and that the legislative history related to the amendment of the Acupuncture Act supports the Chiropractic Board’s interpretation.  The resolution of whether the Chiropractic Board’s rules in this case are valid, to the extent they authorize the practice of acupuncture, turns on the Legislature’s intended use of the word “incisive” in the Chiropractic Act.  The Acupuncture Association failed to establish, as a matter of law, that the practice of acupuncture is “incisive” and therefore outside the statutory scope of chiropractic practice.

To prevail on its motion with respect to this claim, the Chiropractic Board was required to establish that acupuncture needles are “nonincisive” as a matter of law. The Chiropractic Board, however, does not contend that it presented summary-judgment evidence conclusively establishing that acupuncture needles are not capable of “cutting” and thus are “nonincisive.” Instead, the Chiropractic Board asserted in its motion for summary judgment, and now on appeal, that the practice of acupuncture is “nonincisive,” as a matter of law, because the Acupuncture Act, in its view, defines acupuncture as “nonincisive.” The Chiropractic Board claims that regardless of what properties acupuncture needles possess or what the practice of acupuncture entails, the Acupuncture Act has effectively exempted chiropractors from the Acupuncture Act as a matter of statutory construction.

The crux of the Chiropractic Board’s argument is that the Legislature intended for the definition of acupuncture in the Acupuncture Act to specifically address whether acupuncture is “nonincisive” for purposes of the Chiropractic Act. The Chiropractic Act regulates the practice of chiropractic, defines the scope of chiropractic practice, and prohibits chiropractors from performing “incisive” procedures. The Chiropractic Act does not refer to the practice of acupuncture, acupuncture needles, or to the Acupuncture Act.

Separately, the Legislature enacted the Acupuncture Act, regulating the practice of acupuncture and defining the scope of that practice. The Acupuncture Act has limited the use of acupuncture needles by acupuncturists “to the nonincisive insertion of acupuncture needles” by defining the term “acupuncture.”  The Acupuncture Act does not refer to the practice of chiropractic or to the Chiropractic Act, except to provide that a licensed acupuncturist may perform acupuncture on a person if that person has been referred by a licensed chiropractor.  There is no textual indication that the Legislature intended to incorporate the Acupuncture Act’s definition of “acupuncture” into the Chiropractic Act.

Because each statute serves the purpose of defining and regulating a separate health-care field, we cannot conclude that the acts were clearly written to achieve the same objective, despite the fact that they utilize similar terminology. We cannot conclude that the Legislature necessarily intended for the respective regulatory authorities over these two, separate health-care fields to apply the same meaning to the term “incisive,” and accordingly, we will not construe the Chiropractic Act as if it includes the Acupuncture Act’s definition “acupuncture.”

To prevail on their motion for summary judgment on the Acupuncture Association’s claim was required to present summary-judgment evidence supporting its contention that acupuncture needles are nonincisive as a matter of law. Because they failed to meet their burden, the trial court erred to the extent it granted summary judgment in favor of the Chiropractic Board on this claim.

The Acupuncture Association also asserts that the trial court erred in granting summary judgment in favor of the Chiropractic Board on its claim that the Chiropractic Act violates the Texas Constitution to the extent it permits chiropractors to practice acupuncture. Because we cannot conclude, as a matter of law, that the Chiropractic Act authorizes chiropractors to practice acupuncture, we need not decide these issues.


Source:  Opinion of TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-15-00262-CV;  Texas Association of Acupuncture and Oriental Medicine, Appellant v. Texas Board of Chiropractic Examiners et al, Appellees