Can a licensed chiropractor in Texas practice acupuncture without a separate license?

Plain-English summary

The Executive Director of the Texas State Board of Acupuncture Examiners told the Attorney General that some practitioners who held chiropractic licenses, but not acupuncture licenses, were advertising and apparently performing acupuncture at their chiropractic clinics. He asked three questions: whether acupuncture is within a chiropractor's scope of practice; whether a chiropractor needs a separate acupuncture license to do it; and, only if the first answer was yes and the second was no, whether such a chiropractor's advertising could be false or misleading.

Two statutes framed the question. V.T.C.S. article 4495b, subchapter F, governed acupuncture and required a state license to practice it, with one exception: another licensed health care professional could practice acupuncture without a separate license, but only if acupuncture fell "within the scope of" that professional's own license. V.T.C.S. article 4512b governed chiropractic, and the 1995 Legislature had narrowed it so that chiropractic covered only "nonsurgical, nonincisive" procedures, while a companion provision excluded "incisive or surgical procedures."

The Attorney General concluded that acupuncture was an "incisive or surgical procedure" for purposes of the chiropractic statute, so it fell outside the scope of a chiropractic license. The office leaned on the way the Legislature wrote the exclusion: it carved out only the use of a needle to draw blood for diagnostic testing, which implied that needle use was otherwise treated as incisive or surgical, and a witness had described acupuncture to a Senate committee as "a mild form of surgery." Because chiropractic did not clearly encompass acupuncture, a chiropractor who wanted to practice acupuncture had to obtain a separate acupuncture license. With the first two questions answered that way, the third question (about advertising) never came up, because the requester had asked it only on the opposite assumptions.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Texas statutes the opinion turns on were the Vernon's Texas Civil Statutes article numbers in use in 1996 (article 4495b for the Medical Practice Act and acupuncture, article 4512b for chiropractic). Texas has since recodified large parts of its professional-licensing law, so the article and section numbers cited here may not match where the same rules live today. Anyone with a current question about chiropractic or acupuncture scope of practice in Texas should check the present version of the law rather than relying on these 1996 citations.

What the opinion meant at the time

Chiropractors: Under this opinion, holding a chiropractic license did not authorize a chiropractor to perform acupuncture. The office read the 1995 statute as limiting chiropractic to nonsurgical, nonincisive procedures and treated acupuncture's needle insertion as an excluded "incisive or surgical procedure." A chiropractor who practiced acupuncture without a separate acupuncture license was, on the opinion's reading, practicing acupuncture unlawfully, which V.T.C.S. article 4495b, section 6.12(b) made a class A misdemeanor.

The acupuncture and chiropractic licensing boards: The opinion gave the boards a legal basis to treat acupuncture performed by a chiropractor-only licensee as outside the chiropractor's scope. It also explained that the acupuncture statute reserved its "within the scope of" exception for health care professionals whose licenses "clearly encompass" acupuncture, which the office said chiropractic did not.

Patients of chiropractic clinics: The opinion meant that, at the time, a chiropractor who had not obtained an acupuncture license was not authorized to provide acupuncture, even if the clinic advertised it.

Common questions

Could a Texas chiropractor legally perform acupuncture under this opinion?
No. The Attorney General concluded acupuncture was not within the scope of practice for a licensed Texas chiropractor.

Why did the AG treat acupuncture as "surgery"?
Because article 4512b, section 13a(b) excluded "incisive or surgical procedures" from chiropractic and expressly carved out only "the use of a needle for the purpose of drawing blood for diagnostic testing." The office reasoned that the Legislature otherwise viewed needle use as incisive or surgical, and it noted that a witness had described acupuncture to a Senate committee as "a mild form of surgery."

What did a chiropractor need to do to practice acupuncture?
Obtain a separate license to practice acupuncture. The acupuncture statute set out training and examination requirements for that license, including 1,800 hours of instruction in subjects such as physiology and meridian and point locations, plus supervised patient treatment.

Did the opinion decide the advertising question?
No. The requester had asked the third question only if acupuncture was within a chiropractor's scope (yes) and no separate license was required (no). The office reached the opposite conclusions on both, so it did not answer the advertising question.

Background and statutory framework

Two licensing statutes were in play. V.T.C.S. article 4495b, subchapter F, set up "an orderly system of regulating the practice of acupuncture." It defined acupuncture to include inserting an acupuncture needle and applying moxibustion to treat a human condition (section 6.02(1)), required a license from the Board of Medical Examiners on the recommendation of the Board of Acupuncture Examiners (section 6.06), and made unlicensed practice a class A misdemeanor (section 6.12(b)). One exception let a health care professional licensed under another statute practice acupuncture without a separate license, but only if acupuncture was "within the scope of" that professional's license (section 6.03(a)).

V.T.C.S. article 4512b governed chiropractic. As amended by the Seventy-fourth Legislature in 1995, section 1 defined chiropractic to include analyzing the biomechanical condition of the spine and musculoskeletal system and performing "nonsurgical, nonincisive procedures, including but not limited to adjustment and manipulation." Section 13a(b) excluded "incisive or surgical procedures" from chiropractic and defined that phrase to include "making an incision into any tissue, cavity, or organ by any person or implement," while excepting "the use of a needle for the purpose of drawing blood for diagnostic testing."

Reading the two statutes together, the office said the key question was whether acupuncture was an "incisive or surgical procedure." Citing the rule that courts try to ascertain legislative intent (Gov't Code section 312.005), it concluded the Legislature intended acupuncture to count as incisive or surgical, so chiropractic (limited to nonincisive, nonsurgical procedures) did not encompass it. The office acknowledged it had found no Texas case directly on point and that courts elsewhere were split on whether acupuncture is "surgery," surveying decisions from Kansas, New York, Illinois, Ohio, Oregon, Washington, Michigan, and Pennsylvania.

Citations

Statutes and session law:

• V.T.C.S. art. 4495b, § 6.02(1) (definition of acupuncture)
• V.T.C.S. art. 4495b, § 6.03(a) ("within the scope of" exception for other licensees)
• V.T.C.S. art. 4495b, § 6.06 (acupuncture license requirement)
• V.T.C.S. art. 4495b, § 6.07(c) (training and examination requirements)
• V.T.C.S. art. 4495b, § 6.12(b) (unlicensed practice is a class A misdemeanor)
• V.T.C.S. art. 4495b, § 1.03(a)(15) (definition of "surgery")
• V.T.C.S. art. 4512b, § 1 (definition of the practice of chiropractic)
• V.T.C.S. art. 4512b, § 13a(b) ("incisive or surgical procedure")
• V.T.C.S. art. 4512b, § 14(a) (discipline for violations)
• Gov't Code § 312.005 (ascertaining legislative intent)
• Act of May 29, 1995, 74th Leg., R.S., ch. 965, § 13, 1995 Tex. Sess. Law Serv. 4789

Cases (the office cited these mainly in a footnote survey of how other states classify acupuncture):

• Andrews v. Ballard, 498 F. Supp. 1038 (S.D. Tex. 1980)
• Acupuncture Soc'y of Kan. v. Kansas State Bd. of Healing Arts, 602 P.2d 1311 (Kan. 1979)
• People v. Amber, 349 N.Y.S.2d 604 (N.Y. Sup. Ct. 1973)
• People v. Roos, 514 N.E.2d 993 (Ill. 1987)
• State v. Rich, 339 N.E.2d 630 (Ohio 1975)
• State v. Won, 528 P.2d 594 (Or. 1974)
• State v. Wilson, 528 P.2d 279 (Wash. Ct. App. 1974)
• Kelley v. Raguckas, 270 N.W.2d 665 (Mich. Ct. App. 1978)
• Cherry v. State Farm Mut. Auto. Ins. Co., 489 N.W.2d 788 (Mich. Ct. App. 1992)
• Commonwealth v. Schatzberg, 371 A.2d 544 (Pa. Commw. Ct. 1977)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0415
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0415.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 23, 1996

Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board
of Acupuncture Examiners
1812 Centre Creek Drive, Suite 300
P.O. Box 149134
Austin, Texas 78714-9134

Opinion No. DM-415

Re: Whether the practice of acupuncture is within the scope of practice for a licensed Texas chiropractor and related questions (RQ-853)

Dear Dr. Levy:

You inform us that certain health-care practitioners, who are licensed as chiropractors but not as acupuncturists,[1] have been advertising that they perform, and presumably do perform, acupuncture at their chiropractic clinics. You ask three questions in an attempt to determine whether this phenomenon indicates a violation of V.T.C.S. article 4495b, subchapter F, which governs the practice of acupuncture, or V.T.C.S. article 4512b, which governs the practice of chiropractic. Specifically, you seek our opinion regarding the following issues:

 1. Whether the practice of acupuncture is within the scope of practice for a licensed Texas chiropractor?

 2. Whether licensure as an acupuncturist is required for a licensed Texas chiropractor to engage in the practice of acupuncture?

 3. If the answer to the first question is yes and the answer to the second question is no, whether advertising the practice of acupuncture by a licensed chiropractor violates statutes prohibiting false or misleading advertising if the chiropractor fails to indicate in the advertisement that he or she is not licensed by the Texas State Board of Acupuncture Examiners?

We will begin by discussing the two statutes that are most relevant to your questions, V.T.C.S. article 4495b, subchapter F, and V.T.C.S. article 4512b.

The legislature enacted subchapter F of article 4495b to provide for the "establishment of statewide standards for the training, education, and discipline of acupuncturists and for an orderly system of regulating the practice of acupuncture." V.T.C.S. art. 4495b, § 6.01. See generally Attorney General Opinion DM-336 (1995) at 1-2 (summarizing V.T.C.S. art. 4495b, subch. F). Section 6.02(1) defines "acupuncture" as follows:

 (A) the insertion of an acupuncture needle and the application of moxibustion to specific areas of the human body as a primary mode of therapy to treat and mitigate a human condition; and

 (B) the administration of thermal or electrical treatments or the recommendation of dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction with the treatment described by Paragraph (A) of this subdivision.

No individual may practice acupuncture in this state unless he or she has obtained a license to practice acupuncture from the Board of Medical Examiners, upon the recommendation of the Board of Acupuncture Examiners. V.T.C.S. art. 4495b, § 6.06; see also id. §§ 6.05(a)(6), 6.10. A "health care professional licensed under another subchapter" of the Medical Practice Act or another statute may practice acupuncture without obtaining a license from the Board of Medical Examiners, but only if the practice of acupuncture is "within the scope of" the health care professional's license. Id. § 6.03(a). Any individual who practices acupuncture without a license to practice acupuncture or a license encompassing the practice of acupuncture commits a class A misdemeanor. Id. § 6.12(b).

Section 1 of article 4512b, V.T.C.S., lists three acts constituting the practice of chiropractic. As amended by the Seventy-fourth Legislature, section 1 provides:

 (a) A person shall be regarded as practicing chiropractic within the meaning of this Act if the person:

      (1) uses objective or subjective means to analyze, examine, or evaluate the biomechanical condition of the spine and musculoskeletal system of the human body;

      (2) performs nonsurgical, nonincisive procedures, including but not limited to adjustment and manipulation, in order to improve the subluxation complex or the biomechanics of the musculoskeletal system; or

      (3) holds himself out to the public as a chiropractor of the human body or uses the term "chiropractor," "chiropractic," "doctor of chiropractic," "D.C.," or any derivative of those terms in connection with his name.

Act of May 29, 1995, 74th Leg., R.S., ch. 965, § 13, 1995 Tex. Sess. Law Serv. 4789, 4802. Prior to the effective date of the 1995 amendments, article 4512b did not limit the scope of chiropractic to only nonincisive, nonsurgical procedures. See id.

Section 13a of V.T.C.S. article 4512b, which the Seventy-fourth Legislature also amended, see id. § 18, 1995 Tex. Sess. Law Serv. 4789, 4803, explicitly excludes from the practice of chiropractic, among other things, "incisive or surgical procedures." For purposes of article 4512b, the phrase

 "incisive or surgical procedure" includes but is not limited to making an incision into any tissue, cavity, or organ by any person or implement. It does not include the use of a needle for the purpose of drawing blood for diagnostic testing.

V.T.C.S. art. 4512b, § 13a(b).

A violation of article 4512b results in the revocation or suspension of a license, or the probation or reprimand of a licensee. V.T.C.S. art. 4512b, § 14(a); see also id. § 14a(1). The Texas Board of Chiropractic Examiners may assess an administrative penalty in an amount not to exceed $1,000 for each day the violation occurs or continues. See id. §§ 14(a), 19a(a). In addition, a person who violates article 4512b is liable to the state for a civil penalty of $1,000 for each day the violation occurs or continues. Id. § 14(c).

For purposes of this opinion, we assume a chiropractor practices acupuncture to improve the subluxation complex or the biomechanics of the musculoskeletal system. See id. § 1(a)(2). Central to our determination of whether the practice of acupuncture is "within the scope of" a chiropractic license, see V.T.C.S. art. 4495b, § 6.03(a), is a consideration of whether acupuncture is an "incisive or surgical procedure" for purposes of section 13a(b) of article 4512b. If acupuncture is an incisive or surgical procedure, article 4512b, section 13a(b) excludes it from the practice of chiropractic, and a person who is licensed only as a chiropractor may not perform it.

The word "incisive" means "cutting; having the power of cutting." TABER'S CYCLOPEDIC MEDICAL DICTIONARY I-12 (Clayton L. Thomas, M.D., M.P.H., ed., 13th ed. 1977). It also means "cutting with a sharp edge." VII THE OXFORD ENGLISH DICTIONARY 796 (2d ed. 1989).

The word "surgical" pertains to surgery, which is the "branch of medicine dealing with manual and operative procedures for correction of deformities and defects, repair of injuries, and diagnosis and cure of certain diseases." TABER'S CYCLOPEDIC MEDICAL DICTIONARY, supra, at S-130; see also id. at S-131 (defining "surgical"). For purposes of the Medical Practice Act, V.T.C.S. article 4495b, the legislature has defined the term "surgery" to include "surgical services, surgical procedures, surgical operations, and the procedures described in the surgery section of the Common Procedure Coding System as adopted by the Health Care Financing Administration of the United States Department of Health and Human Services." V.T.C.S. art. 4495b, § 1.03(a)(15).

When interpreting a statute, a court must diligently attempt to ascertain legislative intent. Gov't Code § 312.005. Although we question whether a court ordinarily would classify acupuncture as "incisive" or "surgical," we believe the legislature intended that V.T.C.S. article 4512b, section 13a(b) be construed to classify acupuncture as an "incisive or surgical procedure"; we further believe a court would reach a conclusion consistent with the legislative intent. The legislature expressly excluded from the range of procedures that are incisive or surgical "the use of a needle for the purpose of drawing blood for diagnostic testing." We deduce that the legislature considered the use of a needle for the purpose of drawing blood to be an incisive or surgical procedure, and we find no distinction between the use of a needle in a diagnostic circumstance and the use of acupuncture needles.

Additionally, we note that, during the Seventy-fourth Legislature, a witness described acupuncture as "a mild form of surgery" to the Senate Committee on Health and Human Services. See Hearings on S.B. 718 Before the Senate Comm. on Health and Human Services, 74th Leg., R.S. (Apr. 12, 1995) (statement of Dee Ann Newbold, Texas Acupuncture Association) (tape available from Senate Staff Services). The legislature may well have believed, therefore, that acupuncture was among those "incisive" and "surgical" procedures article 4512b, sections 1(a)(2) and 13a(b) exclude from the practice of chiropractic.

Furthermore, article 4495b, subchapter F suggests that the legislature believes acupuncturists should be trained in accordance with statewide standards, see V.T.C.S. art. 4495b, § 6.01(1), and examined by a state board, see id. § 6.05(a). The legislature has established requirements for an applicant for a license to practice acupuncture: among other things, the applicant must have completed 1,800 hours of instruction in subjects including bacteriology, physiology, symptomatology, meridian and point locations, and hygiene, and must have treated patients (with supervision) for at least two terms. See id. § 6.07(c). We believe the legislature, in the interest of the public health, safety, and welfare, see id. § 6.01(2), intended to except from the training and examination requirements only health care professionals whose licenses clearly encompass the practice of acupuncture. See id. § 6.03(a). In our opinion, the practice of chiropractic, as delineated in V.T.C.S. article 4512b, section 1, does not clearly encompass the practice of acupuncture.

We accordingly conclude that V.T.C.S. article 4512b, section 1, which encompasses within the practice of chiropractic only nonsurgical, nonincisive procedures, does not authorize a chiropractor to practice acupuncture. In answer to your first question, therefore, the practice of acupuncture is not within the scope of practice for a licensed Texas chiropractor. Conversely, in answer to your second question, a licensed chiropractor must obtain a license to practice acupuncture if the chiropractor desires to practice acupuncture.

You premise your last question on an affirmative response to your first question and a negative response to your second question. We have reached the opposite conclusions. Consequently, we need not answer your last question.

                             SUMMARY

      Only a health care professional whose license clearly encompasses the practice of acupuncture is excepted from the training and examination requirements set forth for acupuncturists in V.T.C.S. article 4495b, subchapter F. The practice of chiropractic, as delineated in V.T.C.S. article 4512b, section 1, does not clearly encompass the practice of acupuncture. Accordingly, V.T.C.S. article 4512b, section 1, which authorizes a chiropractor to perform only nonsurgical, nonincisive procedures, does not authorize a chiropractor to practice acupuncture.

      Thus, the practice of acupuncture is not within the scope of practice for a licensed Texas chiropractor. Conversely, a licensed chiropractor must obtain a license to practice acupuncture if the chiropractor desires to practice acupuncture.

                                              Very truly yours,

                                              DAN MORALES
                                              Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General

Selected footnotes (best-effort transcription; the linked PDF is authoritative):

[1] An acupuncturist is a practitioner of acupuncture. See V.T.C.S. art. 4495b, § 6.02(1).

The opinion also discussed the dictionary meanings of "acupuncture" and "moxibustion," citing TABER'S CYCLOPEDIC MEDICAL DICTIONARY (13th ed. 1977) and Andrews v. Ballard, 498 F. Supp. 1038, 1043 n.14 (S.D. Tex. 1980).

On the question whether acupuncture is "incisive" or "surgical," the office noted it had found no Texas case on point and that courts elsewhere were split, citing among others: Acupuncture Soc'y of Kan. v. Kansas State Bd. of Healing Arts, 602 P.2d 1311, 1315-16 (Kan. 1979); People v. Amber, 349 N.Y.S.2d 604, 610-11 (N.Y. Sup. Ct. 1973); People v. Roos, 514 N.E.2d 993, 997 (Ill. 1987); State v. Rich, 339 N.E.2d 630, 631 (Ohio 1975); State v. Won, 528 P.2d 594, 596 (Or. 1974); State v. Wilson, 528 P.2d 279, 281 (Wash. Ct. App. 1974); Kelley v. Raguckas, 270 N.W.2d 665, 669 (Mich. Ct. App. 1978); Cherry v. State Farm Mut. Auto. Ins. Co., 489 N.W.2d 788, 790 (Mich. Ct. App. 1992); and Commonwealth v. Schatzberg, 371 A.2d 544, 547 n.6 (Pa. Commw. Ct. 1977) (indicating that the Attorney General of Pennsylvania concluded acupuncture is surgery and forbidden to chiropractors).