Can a licensed Texas chiropractor give injections or prescribe prescription drugs?

TX AG Opinion DM-0472: Can a Texas chiropractor give injections or prescribe drugs?

Plain-English summary

State Representative Hugo Berlanga, who chaired the House Committee on Public Health, and Oliver Smith, the president of the Texas Board of Chiropractic Examiners, both asked the Attorney General whether a licensed Texas chiropractor could use injectable substances (substances put into the body with a needle) to treat biomechanical conditions of the spine and musculoskeletal system. Dr. Smith added several related questions about drugs. The Attorney General issued this opinion the same day as the companion acupuncture opinion (DM-471).

On the central question, the Attorney General concluded that using a needle to inject substances, or to do anything other than draw blood for diagnostic testing or perform acupuncture, is not within the scope of practice of a licensed Texas chiropractor under V.T.C.S. article 4512b. The chiropractic statute defines the practice as nonsurgical, nonincisive analysis and treatment of the musculoskeletal system, and a 1995 amendment expressly excluded "incisive or surgical procedures." Building on the reasoning in Attorney General Opinion DM-415, the office treated the use of an injection needle the same way it had treated drawing blood: because the Legislature carved out blood-drawing from the list of excluded incisive procedures, it must have considered needle use generally to be incisive. The legislative history of the 1995 bills (S.B. 718 and S.B. 673) confirmed that lawmakers meant to keep needles out of chiropractic except for blood draws (and, by separate provision, acupuncture and needle electromyography only if certified). The opinion distinguished DM-443 (1997), which had let physicians and physical therapists perform needle EMG under their boards' reasonable interpretations, because the chiropractic scope is defined narrowly and the chiropractic board cannot adopt a rule inconsistent with the statute.

On the drug questions, the Attorney General reached four conclusions. First, a chiropractor can be found in violation of article 4512b for prescribing a drug that is required to bear an FDA prescription legend even if the package does not actually carry the legend, because a "dangerous drug" under Health and Safety Code section 483.001(2) is one that "bears or is required to bear" the legend, and the real test is whether the drug is "unsafe for self-medication." Second, a drug that does carry a prescription legend is a dangerous drug even if the FDA did not require the legend, because the definition is not limited to drugs that must bear it. Third, there is no single "definitive authority" that classifies drugs; the Legislature defines controlled substances (Health and Safety Code chapter 481) and dangerous drugs (chapter 483), the Commissioner of Health can reschedule controlled substances with the Board of Health's approval, and the FDA's legend requirements feed into the state definition of a dangerous drug. Fourth, chiropractors may not use any injectable substance at all, even one that is not a controlled substance or dangerous drug, because the needle itself is outside their scope.

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 chiropractic, acupuncture, medical, and physical therapy statutes (former V.T.C.S. articles 4512b, 4495b, and 4512e) have since been recodified into the Occupations Code, and the scope of chiropractic practice has been the subject of significant later rulemaking and litigation. The Health and Safety Code drug provisions have also been amended. Confirm the current statutes, board rules, and case law before relying on any specific rule here.

Who this opinion affected (as of 1998)

Licensed Texas chiropractors: The opinion told them they could not inject substances with a needle or prescribe dangerous or prescription drugs, and that a needle could be used only to draw blood for diagnosis or (under separate provisions) for acupuncture.

The Texas Board of Chiropractic Examiners: The opinion concluded the board could not adopt a rule allowing needle injections, because that would be inconsistent with the statute, and explained how the dangerous-drug definition applied to enforcement.

Patients of chiropractors: The opinion meant patients could not receive injections or prescription drugs from a chiropractor acting within the lawful scope of chiropractic.

Common questions

Could a Texas chiropractor give a patient an injection?
Under this opinion, no. The Attorney General concluded that using a needle to inject substances was outside a chiropractor's scope of practice; a needle could be used only to draw blood for diagnostic testing or to perform acupuncture.

Could a chiropractor prescribe prescription drugs?
No. Article 4512b excluded prescribing controlled substances, dangerous drugs, or any drug requiring a prescription from the practice of chiropractic.

What if a prescription drug's package was missing the federal warning legend?
The opinion concluded it was still a "dangerous drug." A drug "required to bear" a prescription legend qualifies even if the package omits it, and the deciding factor is whether the drug is unsafe for self-medication.

Who decides in Texas what counts as a controlled or dangerous drug?
The opinion found no single definitive authority. The Legislature defines the categories by statute, the Commissioner of Health can reschedule controlled substances with the Board of Health's approval, and the FDA's labeling requirements partly determine what is a dangerous drug under Texas law.

Background and statutory framework

A person may practice chiropractic in Texas only if licensed by the Texas Board of Chiropractic Examiners and in compliance with V.T.C.S. article 4512b. Article 4512b, section 1, defines practicing chiropractic to include using objective or subjective means to analyze the biomechanical condition of the spine and musculoskeletal system, performing nonsurgical, nonincisive procedures such as adjustment and manipulation, or holding oneself out as a chiropractor. Section 13a excludes certain acts from the practice; in 1995 the Seventy-fourth Legislature amended section 13a to add "incisive or surgical procedures" to the excluded acts (Act of May 29, 1995, 74th Leg., R.S., ch. 965, § 18). The phrase "incisive or surgical procedure" includes making an incision into any tissue, cavity, or organ, but does not include "the use of a needle for the purpose of drawing blood for diagnostic testing." Before that amendment, section 13a barred only surgery, prescription drugs, x-ray therapy, and radioactive-material therapy.

DM-415 (1996) had considered whether acupuncture was within chiropractic and concluded it was not, reasoning that because the Legislature excepted blood-drawing from the incisive-procedure category, it treated needle use as incisive. This opinion applied the same logic to injection needles: seeing no distinction between a needle used to draw blood and a needle used to inject, it concluded injection is excluded from chiropractic. (As to acupuncture specifically, the companion opinion DM-471 (1998) explains that the 1997 redefinition of acupuncture as "nonsurgical, nonincisive" superseded DM-415, but DM-415's reasoning remained valid for all other needle uses.) The legislative history reinforced the conclusion: S.B. 718 originally excluded "invasive or surgical procedures," was amended to except blood-drawing (and, in floor amendments, acupuncture and needle EMG only if certified), and the term "invasive" was changed to "incisive." When its provisions were folded into S.B. 673 in the House, Representative Janek's amendment was described as taking out any ability of chiropractors to put needles in people. The opinion read the statute and history to mean the Legislature intended to exclude needle use for any purpose other than drawing blood.

The opinion distinguished DM-443 (1997), which had concluded needle EMG was within the scope of physicians and physical therapists. There, the State Board of Medical Examiners (under the broad definition of the practice of medicine, V.T.C.S. art. 4495b, § 1.03(a)(12)) and the Texas Board of Physical Therapy Examiners (under the Physical Therapy Act, V.T.C.S. art. 4512e) had each determined needle EMG fell within their professions, and those reasonable interpretations were entitled to deference. Chiropractic, by contrast, is defined narrowly, and the chiropractic board could not adopt a rule inconsistent with article 4512b.

On drugs, article 4512b, section 13a(a)(2), excludes prescribing controlled substances, dangerous drugs, or any drug requiring a prescription. Health and Safety Code section 483.001(2) defines a "dangerous drug" as a device or drug unsafe for self-medication that is not a scheduled controlled substance, including one that bears or is required to bear a federal prescription legend. Reading that definition with the Code Construction Act (Gov't Code §§ 311.011(b), 311.005(13)), the opinion concluded that a drug required to bear the legend is a dangerous drug even without the legend, that a drug bearing the legend is a dangerous drug even if the FDA did not require it, that the controlling factor is whether the drug is unsafe for self-medication, and that classification authority is shared among the Legislature, the Commissioner of Health and Board of Health (Health and Safety Code §§ 481.002(5), 481.038), and, through its legend requirements, the FDA. Violations of article 4512b can lead to license revocation, suspension, probation, or reprimand and administrative and civil penalties of up to $1,000 per day.

Citations

Statutes:

• V.T.C.S. art. 4512b, §§ 1, 5a(a), 13a, 14(a), 14a(a), 19a(a), (b) (Chiropractic Act)
• V.T.C.S. art. 4495b, §§ 1.03(a)(12), 6.02(1) (Medical Practice Act / acupuncture)
• V.T.C.S. art. 4512e (Physical Therapy Act)
• Tex. Health & Safety Code §§ 483.001(2), 481.002(5), 481.038; chs. 481, 483
• Tex. Gov't Code §§ 311.011(b), 311.005(13) (Code Construction Act)
• Act of May 29, 1995, 74th Leg., R.S., ch. 965, § 18

Related opinions:

• Tex. Att'y Gen. Op. DM-415 (1996); DM-443 (1997); DM-471 (1998)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0472
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1998/dm0472.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

The Honorable Hugo Berlanga
Chairman, Committee on Public Health
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Oliver R. Smith, Jr., D.C.
President
Texas Board of Chiropractic Examiners
333 Guadalupe, Tower III, Suite 825
Austin, Texas 78701

Opinion No. DM-472

Re: Use of injectable substances by licensed chiropractors, and related questions (RQ-925)

Dear Representative Berlanga and Dr. Smith:

Both of you ask whether the use of injectable substances by a licensed chiropractor in the treatment of biomechanical conditions of the spine and musculoskeletal system of the body is within the scope of practice of chiropractic as defined in V.T.C.S. article 4512b. By "injectable substances" we understand you to mean substances that are injected into a person with a needle. We conclude that the use of a needle to inject substances or for any purpose other than the drawing of blood for diagnostic purposes or the performance of acupuncture as defined by the Medical Practice Act, V.T.C.S. article 4495b, section 6.02(1), is not within the scope of practice of a licensed Texas chiropractor. We also answer Dr. Smith's questions regarding the use of certain drugs in the practice of chiropractic. [Footnote: We assume for purposes of this opinion that a chiropractor is not otherwise licensed as a practitioner who is authorized to use needles in the scope of his or her practice.]

A person may practice chiropractic in this state only if licensed to do so by the Texas Board of Chiropractic Examiners, and then only in compliance with the provisions of V.T.C.S. article 4512b. See V.T.C.S. art. 4512b, §§ 5a(a), 14a. A person is regarded as practicing chiropractic within the meaning of article 4512b 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.

Id. § 1.

Article 4512b expressly excludes certain acts from the practice of chiropractic. Id. § 13a. In 1995, the Seventy-fourth Legislature amended article 4512b to include "incisive or surgical procedures" among the excluded acts. Id. § 13a(a); see Act of May 29, 1995, 74th Leg., R.S., ch. 965, § 18, 1995 Tex. Gen. Laws 4789, 4803. 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," but does not include "the use of a needle for the purpose of drawing blood for diagnostic testing." V.T.C.S. art. 4512b, § 13a(a), (b). Your questions require us to determine whether use of a needle other than for the purpose of drawing blood is an incisive or surgical procedure.

We considered a closely related question in Attorney General Opinion DM-415. The issue there was whether the practice of acupuncture is within the scope of practice of a licensed chiropractor who is 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 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. Likewise, seeing no distinction between the use of a needle for drawing blood and the use of a needle for injections, we conclude that the use of needles to inject substances into a person is excluded from the scope of practice of chiropractic.

We find support for our conclusion in the legislative history of V.T.C.S. article 4512b. The statute was amended in 1995 for the purpose of clarifying the "considerable confusion . . . about the scope of chiropractic." Debate on S.B. 718 on the Floor of the Senate, 74th Leg., R.S. (May 15, 1995) (statement of Senator Moncrief) (tape available from Senate Staff Services). The use of needles by chiropractors was a central issue in the debate. As first introduced, Senate Bill 718 would have excluded from the scope of chiropractic "invasive or surgical procedures," but did not define the term invasive. S.B. 718, 74th Leg., R.S. (1995) (introduced version). The Senate Committee on Health and Human Services amended the bill to exclude from the definition of invasive certain procedures, namely, the "examination of the ear, nose, and throat or drawing of blood for the purposes of diagnostic testing." Id. (committee substitute). A witness testifying in support of the bill remarked that because acupuncture is an "invasive" procedure, the bill would prohibit acupuncture. Hearings on S.B. 718 Before the Senate Health and Human Serv. Comm., 74th Leg., R.S. (Apr. 12, 1995) (testimony of Dee Ann Newbald, Texas Acupuncture Association) (transcript available from Senate Staff Services).

The bill was amended on the senate floor to change "invasive" to "incisive" and to allow chiropractors to perform acupuncture and needle electromyogram ("EMG"), but only if certified by the Board of Chiropractic Examiners to perform such procedures. S.B. 718, 74th Leg., R.S. (1995) (as reprinted in S.J. of Tex., 74th Leg., R.S. 2059 (1995)). It has been argued that the term "invasive" was changed to "incisive" so as not to include acupuncture and other uses of needles within the definition of prohibited practices. However, even after the term "incisive" was substituted in, the senate continued to except from its definition the use of needles for diagnostic testing, acupuncture, and needle electromyogram. In our view, if the senate understood the term "incisive" not to include the use of needles, it would not have excepted from that definition the use of needles for certain purposes.

The provisions of Senate Bill 718 were added by Representative Uher as an amendment to Senate Bill 673 on the floor of the house, but without provisions expressly permitting acupuncture and needle EMG. Representative Janek offered an additional amendment to prohibit manipulation under anesthesia, stating: "This amendment would take out any ability by the chiropractors to put needles in people." Debate on S.B. 673 on the Floor of the House, 74th Leg., R.S. (May 22, 1995) (statement of Rep. Janek) (transcript available from Senate Staff Services). In our view, the legislature intended the use of needles for any purpose other than the drawing of blood for diagnostic purposes to be excluded from the scope of chiropractic.

We note that in Attorney General Opinion DM-443 (1997), this office considered whether the performance of needle EMG is within the scope of the practice of licensed physicians and physical therapists. The State Board of Medical Examiners has the statutory authority to determine what constitutes the practice of medicine, which is broadly defined. See V.T.C.S. art. 4495b, § 1.03(a)(12). The Texas Board of Physical Therapy Examiners is charged with the enforcement of the Physical Therapy Act. See id. art. 4512e, § 2G. Both boards, the medical board by resolution and the physical therapy board by rule, determined that needle EMG is within the scope of the practice of their respective professions. We concluded in DM-443 that the boards are entitled to deference in their interpretations of the acts they are charged with administering and enforcing, and their decisions that needle EMG is within the scope of their practices were reasonable ones.

In this case, the scope of chiropractic is not so broadly defined. Both the language of V.T.C.S. article 4512b and its legislative history indicate to us that the legislature intended to exclude the use of needles from the scope of the practice of chiropractic except for certain purposes. The Board of Chiropractic Examiners could not adopt a rule inconsistent with the statute.

The chiropractic board's second question concerns the use by chiropractors of "dangerous drugs." V.T.C.S. article 4512b, section 13a(a)(2), excludes from the scope of the practice of chiropractic "the prescribing of controlled substances or dangerous drugs or any drug that requires a prescription." The Health and Safety Code defines a "dangerous drug" as:

a device or a drug that is unsafe for self-medication and that is not included in Schedules I through V or Penalty Groups I through 4 of Chapter 481 (Texas Controlled Substances Act). The term includes a device or a drug that bears or is required to bear the legend:

(A) Caution: federal law prohibits dispensing without prescription; or

(B) Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.

Health & Safety Code § 483.001(2); see Gov't Code § 311.011(b) (Code Construction Act) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). Thus Texas law considers a substance to be a "dangerous drug" when the federal Food and Drug Administration ("FDA") requires the substance to bear a prescription legend. The board tells us that in some instances, although the FDA requires a legend, some manufacturers do not include the legend in their packaging and promotion. We understand you to ask, therefore, whether a chiropractor may be found to be in violation of V.T.C.S. article 4512b if he or she prescribes a dangerous drug that does not carry the FDA-required legend. We conclude that a chiropractor may be found to be in violation in such a case.

The statute defines a dangerous drug to include a drug that bears or is required to bear a prescription legend. Health & Safety Code § 483.001(2). Thus a drug that is required to bear a prescription legend is a dangerous drug even if it does not actually bear the legend. We believe it is the duty of a responsible health care provider to determine whether a drug not bearing a legend is nevertheless required to bear a legend. Furthermore, the critical factor in determining whether a drug is a dangerous drug is not whether it carries an FDA-required legend, but rather whether it is "unsafe for self-medication." A drug that is "unsafe for self-medication" falls within the definition of a dangerous drug even if it does not carry or is not required to carry a prescription legend. Thus a chiropractor may be found to be in violation of article 4512b if he or she prescribes a drug that is "unsafe for self-medication" whether or not the drug carries an FDA-required legend.

The chiropractic board's third question also relates to the use of dangerous drugs. The board tells us that some manufacturers include legends on drugs even though the FDA does not require a legend on the particular drug. The board asks if such a drug falls within the definition of a dangerous drug. We believe that it does. Again, the Health and Safety Code includes within the definition of "dangerous drug" a drug "that bears or is required to bear" a prescription legend. Health & Safety Code § 483.001(2) (emphasis added). The definition is not limited to drugs that are required to bear the legend.

The chiropractic board's fourth question is: "In the State of Texas who is the source or body that has the definitive authority of defining a controlled substance, dangerous drug or drug that requires a prescription?" We find no single "definitive authority" on the question of classifying drugs. Certainly, the Texas Legislature has the power to define what constitutes a controlled, dangerous, or prescription drug, and it has done so. Health and Safety Code chapter 481 lists specific drugs that are deemed to be controlled substances. Health & Safety Code § 481.002(5). The Commissioner of Health may, with the approval of the Texas Board of Health, add to, delete from, or reschedule substances on the list. Id. § 481.038. Health and Safety Code chapter 483 defines a dangerous drug as a drug that is "unsafe for self-medication," including drugs that bear or are required by the FDA to bear a prescription legend. Thus, to some extent, the FDA determines what is a dangerous drug under Texas law.

Finally, the chiropractic board asks whether chiropractors may use injectable substances in the scope of their practice that are not controlled substances, dangerous drugs, or substances otherwise barred by the Chiropractic Act. Again, the use of a needle for any purpose other than the drawing of blood for diagnostic purposes or the practice of acupuncture is not within the scope of practice of a licensed Texas chiropractor. We conclude that the use of any injectable substance is not within the scope of the practice of chiropractic.

[Footnote: A violation of article 4512b is punishable by the revocation or suspension of a chiropractor's license, or the probation or reprimand of a licensee. V.T.C.S. art. 4512b, § 14(a). The board may impose an administrative penalty in an amount not to exceed $1,000 for each day the violation occurs or continues, and the violator is also liable to the state for a civil penalty of $1,000 per day. Id. §§ 14a(a), 19a(a), (b). The Health and Safety Code also provides for criminal penalties for the possession or delivery of a dangerous drug. See Health and Safety Code ch. 483, subch. C.]

SUMMARY

The use of a needle to inject substances or for any purpose other than the drawing of blood for diagnostic testing or for the practice of acupuncture is not within the scope of practice of a licensed Texas chiropractor. A chiropractor may be found to be in violation of V.T.C.S. article 4512b, prohibiting the prescription by a chiropractor of dangerous drugs, if the chiropractor prescribes a drug that does not bear, but is required to bear, a legend stating that federal law prohibits dispensing the drug without a prescription. A drug that bears a prescription legend falls within the definition of "dangerous drug" found in Health and Safety Code section 483.001(2).

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