Can the Texas Medical Board regulate hyperbaric oxygen therapy?

Plain-English summary

Hyperbaric oxygen therapy places a patient, usually for about ninety minutes, in a sealed chamber filled with pure oxygen at higher-than-normal pressure. The head of the Texas State Board of Medical Examiners asked the Attorney General a chain of questions about how far the board's authority over that therapy reaches: can the board decide it is the practice of medicine, can the board regulate it, can the board control how physicians hand the procedure off to staff, and does any of that touch podiatrists who use it?

On the first three questions, the answer was yes. The Medical Practice Act (article 4495b, V.T.C.S.) gives the board broad authority over the practice of medicine, defines "practicing medicine" in sweeping terms (any system or method to diagnose or treat a disease, disorder, deformity, or injury), and expressly says the board may determine whether an act is the practice of medicine. The office concluded that hyperbaric oxygen therapy fits the definition, that the board could classify it as the practice of medicine, and that the board's general rule-making power (section 2.09(a)) let it regulate the therapy. Because the board also decides whether a medical act may be delegated, it could limit by rule how a physician delegates the therapy to others and set supervision standards. The office pointed to Thompson v. Texas State Board of Medical Examiners, a 1978 decision upholding the board's authority to treat acupuncture as the practice of medicine as a valid use of the state's police power, and to the board's delegation authority recognized in the Tatro decision.

The fourth question drew the only real limit. The Medical Practice Act does not apply to "duly licensed podiatrists who confine their practice strictly to podiatry." So if hyperbaric oxygen therapy falls within the practice of podiatry, the Board of Medical Examiners cannot regulate a podiatrist's use of it; that would belong to the State Board of Podiatric Medical Examiners instead. Whether the therapy is podiatry depends on factual questions (for instance, its value in treating the human foot), which the office said it could not answer in an opinion. A footnote noted the podiatric board itself took the view that the therapy is within podiatry and had drafted a proposed rule on it.

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.

This opinion construes the Medical Practice Act as it existed in 1996, when it was codified as article 4495b, V.T.C.S. It has since been recodified into the Texas Occupations Code, and the podiatry statutes have likewise been recodified. The specific article and section numbers cited here are historical; verify the current Occupations Code provisions before relying on anything here.

What the opinion meant at the time

The Board of Medical Examiners: Under the opinion, the board could determine that hyperbaric oxygen therapy is the practice of medicine, regulate its performance by rule, and limit how physicians delegate the procedure or supervise it once delegated.

Physicians and clinics offering the therapy: The opinion treated the procedure as the practice of medicine, which meant a physician's authority to hand it off to staff could be restricted by board rule, including supervision requirements.

Podiatrists: The opinion held that if the therapy is within the practice of podiatry, the Medical Practice Act does not reach a podiatrist who uses it, and regulation falls to the State Board of Podiatric Medical Examiners. Whether the therapy is podiatry was left open as a fact question.

Common questions

Could the Texas Medical Board treat hyperbaric oxygen therapy as the practice of medicine?
Yes. The opinion concluded the Medical Practice Act's broad definition of practicing medicine covers the therapy, and that the board may decide whether an act is the practice of medicine.

Could the board make rules regulating the therapy?
Yes. The opinion relied on the board's broad rule-making authority in section 2.09(a) to allow rules regulating hyperbaric oxygen therapy.

Could the board limit how a physician delegates the therapy to staff?
Generally yes. Physicians may delegate medical acts to qualified, supervised personnel, but because the board may determine whether a medical act may be delegated, the opinion said the board could limit that delegation by rule.

Did the board's authority also cover podiatrists who provide the therapy?
Not necessarily. The Medical Practice Act does not apply to licensed podiatrists who confine their practice to podiatry. The opinion said that if the therapy is within podiatry (a fact question it did not resolve), a podiatrist's use of it is regulated by the Board of Podiatric Medical Examiners, not the Medical Board.

Background and statutory framework

The Medical Practice Act, then codified as article 4495b, V.T.C.S., made the Board of Medical Examiners the primary body for licensing, regulating, and disciplining Texas physicians (section 1.02(2)). It defined "practicing medicine" in section 1.03(a)(12) to reach anyone who publicly professes to be a physician and diagnoses or treats a disease, disorder, deformity, or injury by any system or method, or who does so for compensation. The Attorney General read that definition as broad enough to capture hyperbaric oxygen therapy, and noted that the board's power to classify acts came directly from section 3.06(d)(1), which says the board "may determine whether or not an act constitutes the practice of medicine."

Two Texas decisions framed the analysis. The decision in Thompson v. Texas State Board of Medical Examiners upheld the board's authority to treat acupuncture as the practice of medicine and to discipline physicians who let unlicensed people perform it; the Texas court of civil appeals called the board's action a valid exercise of the state's police power to protect public health. Mitchell v. Amarillo Hosp. Dist., a Texas court of appeals decision, was cited for the same determination power. On delegation, the office pointed to Tatro v. Texas, a Fifth Circuit decision (affirmed in part by the United States Supreme Court at 468 U.S. 883) recognizing that Texas physicians may prescribe treatment and delegate its administration. Because section 3.06(d)(1) also lets the board decide whether a medical act may be delegated, the office concluded the board could restrict delegation of the therapy by rule.

The podiatry limit came from the act's own scope. Section 3.06(b)(5) exempts duly licensed podiatrists who confine their practice strictly to podiatry. Podiatry is governed by chapter 11 of title 71, V.T.C.S. (articles 4567 through 4576), and articles 4567(a) and 4567b define it as treating any disease, disorder, injury, deformity, or ailment of the human foot by any system or method for compensation. Whether hyperbaric oxygen therapy fits that definition turned on factual questions the office would not resolve. If it did, regulation of a podiatrist's use of it would fall to the State Board of Podiatric Medical Examiners under article 4568(i).

Citations

Statutes:

• Medical Practice Act, art. 4495b, V.T.C.S. (board's authority over the practice of medicine)
• V.T.C.S. art. 4495b, § 1.02(2) (board as primary regulator of physicians)
• V.T.C.S. art. 4495b, § 1.03(a)(12) (definition of practicing medicine)
• V.T.C.S. art. 4495b, § 2.09(a) (board rule-making authority)
• V.T.C.S. art. 4495b, § 3.06(d)(1) (board may determine what is the practice of medicine; physician delegation)
• V.T.C.S. art. 4495b, § 3.06(b)(5) (podiatrist exemption from the act)
• V.T.C.S. arts. 4567 through 4576 (practice of podiatry); art. 4567(a); art. 4567b (definition of podiatry)
• V.T.C.S. art. 4568(i) (State Board of Podiatric Medical Examiners)

Cases:

• Thompson v. Texas State Board of Medical Examiners, 570 S.W.2d 123 (Tex. Civ. App.-Tyler 1978, writ ref'd n.r.e.)
• Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857 (Tex. App.-Amarillo 1993), cert. denied, 115 S. Ct. 510 (1994)
• Tatro v. Texas, 703 F.2d 823 (5th Cir. 1983), aff'd in part, rev'd in part on other grounds, 468 U.S. 883 (1984)
• Roberts v. Lowry, 673 So. 2d 1323 (La. Ct. App. 1996)
• Keefe v. Shalala, 71 F.3d 1060 (2d Cir. 1995)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0423
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0423.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

November 6, 1996

Bruce A. Levy, M.D.
Executive Director
Texas State Board of Medical Examiners
P.O. Box 2018
Austin, Texas 78768-2018

Opinion No. DM-423

Re: Authority of the Board of Medical Examiners to regulate hyperbaric oxygen therapy (RQ-890)

Dear Dr. Levy:

You have asked this office a series of questions concerning the authority of the Board of Medical Examiners (the "board") to regulate hyperbaric oxygen therapy. As we understand it from the materials you have presented to us, hyperbaric oxygen therapy involves placing a patient, usually for a period of ninety minutes, in a chamber filled with 100% oxygen the atmospheric pressure of which has been increased, generally to 2.4 atmospheres absolute pressure.

You first ask us whether the board has the authority to determine whether hyperbaric oxygen therapy is the practice of medicine for the purposes of the Medical Practice Act. We conclude that it does.

The Medical Practice Act (the "act"), article 4495b, V.T.C.S., gives the board broad powers to regulate the practice of medicine. In section 1.02(2), the legislature declares that the board "should remain the primary means of licensing, regulating, and disciplining the individual physicians and surgeons who are licensed to practice medicine." The phrase "[p]racticing medicine" is defined by section 1.03(a)(12) of the act as follows:

 A person shall be considered to be practicing medicine within this Act:
      (A) who shall publicly profess to be a physician or surgeon and shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to effect cures thereof; or
      (B) who shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method and to effect cures thereof and charge therefor, directly or indirectly, money or other compensation.

This definition of the practice of medicine seems to us sufficiently broad to include hyperbaric oxygen therapy. Such therapy would certainly appear to be a "system or method" designed to "treat . . . [a] disease or disorder, . . . physical deformity or injury. . . ." V.T.C.S. art. 4495b, § 1.03(12). This conclusion is further supported, in our view, by the rather limited amount of case law referring to hyperbaric oxygen therapy, by section 3.06(d)(1) of the act, and by Thompson v. Texas State Board of Medical Examiners, 570 S.W.2d 123 (Tex. Civ. App.--Tyler 1978, writ ref'd n.r.e.).

Our research has identified a total of twenty-two American cases referring to hyperbaric oxygen therapy in the last nineteen years. See, e.g., Roberts v. Lowry, 673 So. 2d 1323 (La. Ct. App. 1996); Wilkerson v. Prelutsky, No. 66263, 1996 WL 192052 (Mo. Ct. App. 1996); Keefe v. Shalala, 71 F.3d 1060 (2d Cir. 1995). While the question of whether this therapy constitutes the practice of medicine is not squarely presented by these cases, they indicate that hyperbaric oxygen therapy generally is regarded as a medical procedure.

Moreover, Texas law provides that the board may determine whether particular procedures constitute the practice of medicine. Section 3.06(d)(1) of the act expressly states that "[t]he board may determine whether or not an act constitutes the practice of medicine. . . ." See Mitchell v. Amarillo Hosp. Dist., 855 S.W.2d 857, 874 (Tex. App.-Amarillo 1993), cert. denied, 115 S. Ct. 510 (1994). Additionally, in Thompson, two physicians argued that the board had no right to revoke their licenses to practice medicine for permitting unlicensed persons to perform acupuncture on their premises. They argued, inter alia, that the board was without authority to define acupuncture as within the practice of medicine. This contention the court rejected out of hand: "In our opinion acupuncture is properly included within the practice of medicine." 570 S.W.2d at 127. It further held the board's exercise of this authority to be a valid exercise of the police power of the state:

 The statutes in question and the actions of the Board clearly have a real and substantial relation to the object sought to be attained. The State seeks to protect the general health, safety and welfare of all its citizens through the actions of its Board of Medical Examiners. By requiring only licensed physicians to administer acupuncture treatments, the Board fulfilled its duty to the people of this State to insure as best it can the competency of those practicing medicine.

Id. at 128-29.

Accordingly, based on the broad statutory definition of the practice of medicine, the express statutory authority provided in section 3.06(d)(1), the holding of Thompson, and our reading of those cases which discuss hyperbaric oxygen therapy, we conclude that the board has the authority to determine that the administration of such therapy is the practice of medicine.

Your second question is whether, having determined that hyperbaric oxygen therapy is the practice of medicine, the board may regulate the performance of such therapy. Again, our answer is affirmative. Section 2.09(a) of the act reads, in pertinent part:

 The board may make rules, regulations, and bylaws not inconsistent with this Act as may be necessary for . . . the regulation of the practice of medicine in this state . . . .

This broad grant of discretionary rule-making authority is in our view sufficient to permit the board to make rules concerning the regulation of hyperbaric oxygen therapy.

You next ask whether the board's authority is sufficiently broad to permit rules which limit the ability of physicians to delegate performance of such therapy or establish standards for supervision of such therapy when a delegation has been made. We think that, generally speaking, the board has sufficient authority to adopt such rules. Physicians in Texas may prescribe treatment and delegate its administration to others. Tatro v. Texas, 703 F.2d 823, 827 (5th Cir. 1983), aff'd in part, rev'd in part on other grounds, 468 U.S. 883 (1984). Section 3.06(d)(1) of the act states that

 a person licensed to practice medicine shall have the authority to delegate to any qualified and properly trained person or persons acting under the physician's supervision any medical act which a reasonable and prudent physician would find is within the scope of sound medical judgment to delegate.

However, under section 3.06(d)(1), the board has the power to determine "whether or not an act constitutes the practice of medicine . . . and may determine whether any medical act may or may not be properly delegated by physicians." Accordingly, physicians' powers to delegate a procedure such as this may be limited by rule as a part of such a determination.

Finally, you ask whether the administration of hyperbaric oxygen therapy is "within the scope of independent practice of a licensed Texas podiatrist." If it is, the board may not regulate the podiatrist's practice of it, since the board's powers derive from the act, which by its own terms does not apply to "duly licensed podiatrists who confine their practice strictly to podiatry as defined by law." V.T.C.S. art. 4495b, § 3.06(b)(5).

The practice of podiatry is governed by chapter 11 of title 71, V.T.C.S., articles 4567 through 4576. The definition of podiatry offered by articles 4567(a) and 4567b is as follows:

 Any person shall be regarded as practicing podiatry within the meaning of this law, and shall be deemed and construed to be a podiatrist, who shall treat or offer to treat any disease or disorder, physical injury or deformity, or ailment of the human foot by any system or method and charge therefor, directly or indirectly, money or other compensation.

Whether hyperbaric oxygen therapy may constitute the practice of podiatry depends, therefore, on whether it is a "system or method" which may be used to treat "any disease or disorder, physical injury or deformity, or ailment of the human foot." In our view, the answer to such a question would depend upon the resolution of factual questions concerning, for example, the value and appropriateness of such therapy in treating the human foot which we cannot answer in the opinion process.[2] However, if the answer is affirmative, then the board cannot regulate the practice of hyperbaric oxygen therapy by a licensed podiatrist. Such regulation would by law be within the purview of the State Board of Podiatric Medical Examiners. V.T.C.S. art. 4568(i).

[2] It is our understanding, based upon a brief prepared by the Board of Podiatric Medical Examiners, that that body does take the view that this therapy is within the practice of podiatry. It has accordingly drafted a proposed rule requiring that podiatrists practicing the therapy must follow the guidelines of the Undersea and Hyperbaric Medical Society ("UHMS"), must practice the therapy in a hospital setting, and must complete a course of training recognized by the UHMS and be certified as competent by that training agency.

                           SUMMARY

      The Board of Medical Examiners has the authority to determine whether hyperbaric oxygen therapy constitutes the practice of medicine, the power to regulate the performance of such therapy, and the power to make rules which limit the ability of physicians to delegate performance of such therapy or which establish standards for supervision of such therapy when a delegation has been made. Whether hyperbaric oxygen therapy is within the practice of podiatry depends upon the resolution of factual questions. However, if hyperbaric oxygen therapy is within the practice of podiatry, its practice by podiatrists is regulated by the Board of Podiatric Medical Examiners, not the Board of Medical Examiners.

                                                  DAN MORALES
                                                  Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James E. Touttelott
Assistant Attorney General