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

TX AG Opinion DM-0471: Is acupuncture within a Texas chiropractor's scope of practice?

Plain-English summary

Bruce Levy, the executive director of the Texas State Board of Acupuncture Examiners, asked the Attorney General whether the practice of acupuncture falls within the scope of practice of a licensed Texas chiropractor. The Attorney General concluded that it does, and that the office's earlier answer to the same question had been overtaken by a change in the statute.

Two years earlier, in Attorney General Opinion DM-415 (1996), the office had reached the opposite conclusion. The chiropractic statute (V.T.C.S. article 4512b) kept "incisive or surgical procedures" outside a chiropractor's scope of practice. Because the Legislature had expressly carved out, from that category, the use of a needle to draw blood for diagnostic testing, DM-415 reasoned that using a needle to draw blood was otherwise an incisive or surgical procedure, and it saw no real difference between drawing blood with a needle and inserting an acupuncture needle. On that reasoning, acupuncture was an incisive or surgical procedure a chiropractor could not perform.

The Legislature then changed the definition. As part of the acupuncture board's 1997 sunset legislation, it amended V.T.C.S. article 4495b to define acupuncture, in part, as the "nonsurgical, nonincisive insertion of an acupuncture needle." Reading the acupuncture statute and the chiropractic statute together (in pari materia, because both regulate health care professions), the Attorney General concluded that acupuncture, now defined by statute as nonsurgical and nonincisive, is not an "incisive or surgical procedure" excluded from the practice of chiropractic. The legislative history of the amendment confirmed the point: it was intended to let chiropractors practice acupuncture without being separately licensed as acupuncturists. So DM-415's contrary conclusion was superseded by statute.

The opinion also rejected the argument that federal law blocked the result. The federal Food and Drug Administration classifies acupuncture needles as Class II medical devices and restricts the use of such prescription devices to practitioners licensed by state law to use them. But the FDA does not decide who a state may license. So the FDA's classification did not stop Texas from authorizing chiropractors to use acupuncture needles, as long as anyone authorized to use them does so in accordance with the FDA's labeling, single-use, and sterility requirements.

Currency note

This opinion was issued in 1998. 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 acupuncture and chiropractic statutes (former V.T.C.S. articles 4495b and 4512b) have since been recodified into the Occupations Code, and the scope-of-practice rules for chiropractors and acupuncturists have been the subject of later legislation, rulemaking, and litigation. Confirm the current statutes and board rules before relying on any specific rule here.

Who this opinion affected (as of 1998)

Licensed Texas chiropractors: The opinion concluded acupuncture was within their scope of practice, so a chiropractor could use acupuncture needles without holding a separate acupuncture license, subject to the FDA's device requirements.

The acupuncture board and licensed acupuncturists: The opinion settled, in the board's favor on the question it had raised, that the 1997 amendment opened acupuncture to chiropractors as a matter of scope of practice.

Patients seeking acupuncture: The opinion meant patients could lawfully receive acupuncture from a licensed chiropractor, not only from a separately licensed acupuncturist.

Common questions

Could a Texas chiropractor perform acupuncture without an acupuncture license?
Under this opinion, yes. The Attorney General concluded that after the 1997 statutory change, acupuncture was within a licensed chiropractor's scope of practice, so a separate acupuncture license was not required.

What changed from the earlier opinion, DM-415?
DM-415 (1996) had treated inserting an acupuncture needle as an "incisive or surgical procedure" outside chiropractic. In 1997 the Legislature redefined acupuncture as "nonsurgical, nonincisive," which removed it from that excluded category and superseded DM-415's conclusion.

Did federal FDA rules on acupuncture needles stop chiropractors from using them?
No. The opinion explained that the FDA classifies acupuncture needles as Class II devices and limits their use to practitioners a state licenses to use them, but the FDA does not decide who a state may license. Texas was free to authorize chiropractors to use the needles.

Did a chiropractor using acupuncture needles still have to follow any rules?
Yes. The opinion noted that anyone authorized by state law to use acupuncture needles had to do so in accordance with FDA regulations, including single-use labeling and biocompatibility and sterility requirements.

Background and statutory framework

When DM-415 was issued, V.T.C.S. article 4495b, subchapter F (the acupuncture statute), defined acupuncture as the insertion of an acupuncture needle and the application of moxibustion to specific areas of the body as a primary mode of therapy, together with thermal or electrical treatments and related dietary or herbal recommendations. The chiropractic statute, V.T.C.S. article 4512b, excluded "incisive or surgical procedures" from the scope of chiropractic, while expressly carving out from that exclusion the use of a needle to draw blood for diagnostic testing. DM-415 read that carve-out to mean the Legislature considered drawing blood with a needle to be an incisive or surgical procedure, and it equated the use of acupuncture needles with that, concluding acupuncture was outside chiropractic.

The 1997 sunset legislation changed the definition. The Act of May 29, 1997, 75th Leg., R.S., ch. 1170, amended article 4495b, section 6.02(1), to define acupuncture in part as the "nonsurgical, nonincisive insertion of an acupuncture needle." Because the acupuncture and chiropractic statutes both regulate health care professions, the Attorney General read them in pari materia and concluded that acupuncture, now nonsurgical and nonincisive by definition, no longer fell within the chiropractic statute's exclusion for incisive or surgical procedures. The legislative history of S.B. 361 (including testimony of Rep. Patricia Gray) reflected an intent to allow chiropractors to practice acupuncture without separate licensure.

On the federal question, the opinion canvassed the FDA's regulatory scheme. The FDA defines an acupuncture needle as "a device intended to pierce the skin in the practice of acupuncture" (21 C.F.R. § 880.5580), classifies acupuncture needles as Class II medical devices subject to special controls (21 U.S.C. § 360c(a); 21 C.F.R. § 860.3), and requires single-use labeling and compliance with prescription-device, biocompatibility, and sterility requirements. FDA regulations restrict the use of prescription devices to practitioners licensed by state law to use or order them (21 C.F.R. § 801.109) but do not prescribe who a state may license. The opinion concluded the FDA rules did not bar Texas from authorizing chiropractors to use acupuncture needles, so long as they complied with the FDA's requirements.

Citations

Statutes and regulations:

• V.T.C.S. art. 4495b, § 6.02(1) (acupuncture statute, as amended 1997)
• V.T.C.S. art. 4512b (chiropractic statute)
• 21 C.F.R. §§ 880.5580, 860.3, 801.109
• 21 U.S.C. § 360c(a)
• Act of May 29, 1997, 75th Leg., R.S., ch. 1170

Related opinions:

• Tex. Att'y Gen. Op. DM-415 (1996) (superseded by statute on the acupuncture question)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0471
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0471.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

March 30, 1998

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

Opinion No. DM-471

Re: Whether the performance of acupuncture is within the scope of practice of a licensed Texas chiropractor (RQ-988)

Dear Dr. Levy:

You ask whether the practice of acupuncture is within the scope of practice of a licensed doctor of chiropractic, a question that we considered in Attorney General Opinion DM-415. We conclude that the practice of acupuncture as defined in V.T.C.S. article 4495b is within the scope of the practice of chiropractic, and consequently that the conclusion reached in DM-415 with respect to the practice of acupuncture by chiropractors is superseded by statute.

The issue in DM-415 was whether the practice of acupuncture was within the scope of practice of a licensed chiropractor who was not also a licensed acupuncturist. Attorney General Opinion DM-415 (1996). Central to our determination was a consideration of whether acupuncture, defined in part as "the insertion of an acupuncture needle" into the human body, is an "incisive or surgical procedure" under V.T.C.S. article 4512b. Id. at 4. We reasoned that because 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," the legislature considered the use of a needle for the purpose of drawing blood to be an incisive or surgical procedure. Id. at 5. Seeing no distinction between the use of a needle for drawing blood and the use of acupuncture needles, we concluded that acupuncture was not within the scope of practice of chiropractic.

[Footnote 1: When Attorney General Opinion DM-415 was issued, V.T.C.S. article 4495b, which governs the practice of acupuncture in Texas, defined acupuncture as: (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. V.T.C.S. art. 4495b, § 6.02.]

As a part of the acupuncture board's sunset legislation, the Seventy-fifth Legislature amended the definition of acupuncture in V.T.C.S. article 4495b, subchapter F (the "acupuncture statute"), to define acupuncture in part as the "nonsurgical, nonincisive insertion of an acupuncture needle." Act of May 29, 1997, 75th Leg., R.S., ch. 1170, 1997 Tex. Sess. Law Serv. 4418, 4418 (codified at V.T.C.S. art. 4495b, § 6.02(1)). Because the acupuncture statute and the chiropractic statute both regulate health care professions, we believe they may be read in pari materia. Acupuncture is defined in the acupuncture statute as a "nonsurgical, nonincisive" procedure. Therefore, it is not an "incisive or surgical procedure" excluded by the chiropractic statute from the scope of the practice of chiropractic. Furthermore, the legislative history of the amendment to the acupuncture statute indicates that the amendment was intended to allow chiropractors to practice acupuncture without being separately licensed to do so. See Hearing on S.B. 361 Before the House Public Health Comm., 75th Leg. (May 8, 1997) (testimony of Rep. Patricia Gray) (tape available in House Video/Audio Services Office). Therefore, our conclusion in DM-415 that needle acupuncture is not within the scope of the practice of chiropractic has been superseded by statute.

It has been argued that the use of acupuncture needles by chiropractors not licensed to practice acupuncture contravenes the federal Food and Drug Administration's ("FDA") classification of acupuncture needles. We disagree. The FDA defines an acupuncture needle as "a device intended to pierce the skin in the practice of acupuncture." 21 C.F.R. § 880.5580. Acupuncture needles are classified by the FDA as "Class II" medical devices, which are devices for which general controls are insufficient to assure the safety and effectiveness of the device, and which are therefore subject to special controls. See 21 U.S.C. § 360c(a) (defining classes of devices); 21 C.F.R. § 860.3 (same). The FDA requires acupuncture needles to be labeled for single use only, conform to FDA requirements for prescription devices, and comply with biocompatibility and sterility requirements. 21 C.F.R. § 880.5580. FDA regulations restrict the use of prescription devices, including acupuncture needles, to practitioners licensed by state law to use or order the use of such devices. Id. § 801.109. The FDA does not, however, prescribe who may be licensed by a state to use the device. Any person authorized by state law to use acupuncture needles must do so in accordance with FDA regulations.

SUMMARY

The practice of acupuncture, as defined by V.T.C.S. article 4495b, is not an "incisive or surgical procedure" excluded from the scope of the practice of chiropractic. The conclusion reached in Attorney General Opinion DM-415 with respect to the practice of acupuncture by chiropractors is superseded by statute.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General