Can the Texas podiatry board redefine 'foot' by rule so podiatrists may treat the tibia and fibula?

Plain-English summary

A state representative asked whether the Texas State Board of Podiatric Medical Examiners could adopt a rule defining "foot" to include the tibia and fibula, and whether doing so was within the Board's rulemaking authority. The Attorney General concluded that the rule unreasonably extended the practice of podiatry beyond what the statute allows, and that the Board could not enlarge the profession's scope by regulation.

The Occupations Code defines "podiatry" as treating any disease, disorder, physical injury, deformity, or ailment of the human foot, but it does not define "foot." In March 2001 the Board adopted a rule defining "foot" as the tibia and fibula in their articulation with the talus, and all bones to the toes, including the soft tissues that insert into them. The representative was concerned that this swept in body parts above the foot and that the Board had acted beyond its power.

On the authority question, the opinion explained the basic rule that a state agency has only the powers the legislature expressly delegates or that are implied from those express powers. The Board may adopt reasonable rules consistent with the podiatry statute, and its reasonable reading of that statute gets great weight, but a rule must harmonize with the general objectives of the statute. A rule that does not is beyond the agency's authority.

Applying that, the opinion concluded the rule went too far. The practice of podiatry is limited by statute to treatment of the foot, and the foot, as the medical and ordinary dictionaries define it, is the part of the leg below the ankle joint. The tibia and fibula are leg bones, not part of the foot. Even though the rule followed "tibia and fibula" with the phrase "in their articulation with the talus," the opinion read the rule to let a podiatrist treat the tibia and fibula at least in part, which extends podiatry beyond the statute. The opinion noted courts in Tennessee and Connecticut had likewise held the ankle is not part of the foot, while a Washington court had reached the opposite result. Because the rule conflicted with the statute, the Board had acted beyond its authority.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General 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. Chapter 202 of the Occupations Code and the podiatry board's rules in title 22 of the Administrative Code have been amended since 2001, so the statutory definition and the rule described here may no longer be current.

What the opinion meant for those who asked

The requesting representative (what the opinion held): The opinion answered both questions. First, the Board's rule defining "foot" to reach the tibia and fibula unreasonably extended podiatry to body parts not in the foot. Second, the Board may not by rule enlarge the practice of podiatry beyond what chapter 202 of the Occupations Code permits, so the rule was beyond its authority.

The Texas State Board of Podiatric Medical Examiners (what the opinion held for them): The opinion treated the Board's rulemaking power as bounded by the statute. The Board has jurisdiction to decide whether a particular system or method of treatment is podiatry, but only to the extent the treatment is of the foot. It could not define "foot" to include leg bones and thereby expand the licensed scope of practice.

Licensed podiatrists (what the opinion held for them): The opinion concluded that the statutory practice of podiatry is limited to the foot, the part of the leg below the ankle joint, and that the rule could not authorize treating the tibia and fibula. It did not resolve where particular treatments fall; whether a given method treats the foot remained a question for the Board within those statutory limits.

Common questions

What does Texas law say podiatrists can treat?
The opinion explained that the Occupations Code defines podiatry as treating any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method. The statute itself does not define "foot."

Why was the Board's definition of "foot" a problem?
The opinion concluded that the rule's definition reached the tibia and fibula, which are leg bones above the ankle and not part of the foot. Relying on medical and ordinary dictionaries defining the foot as the part of the leg below the ankle joint, it found the rule extended podiatry past the statute.

Can a state board expand a profession's scope of practice by rule?
The opinion said no. An agency has only the powers the legislature gives it. The Board may adopt rules consistent with the podiatry statute, but a rule that does not harmonize with the statute's objectives is beyond the agency's authority.

Did other states agree the ankle is not part of the foot?
The opinion noted that Tennessee and Connecticut courts had held the ankle is not an ailment of the foot, while a Washington court had concluded a podiatry board there could define foot to include the ankle.

Background and statutory framework

A podiatrist is licensed to practice podiatry. Tex. Occ. Code Ann. § 202.001(a)(3)(A) (Vernon 2001). Section 202.001 defines "podiatry" as "the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method." Id. § 202.001(a)(4). The statute does not define "foot." In March 2001 the Board adopted a rule defining the foot as "the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues . . . that insert into the tibia and fibula in their articulation with the talus and all bones to the toes." 26 Tex. Reg. 2385, 2390 (2001) (to be codified as an amendment to 22 Tex. Admin. Code § 375.1).

A state agency has only those powers the legislature expressly delegates or that may be implied from its express powers. State v. Jackson, 376 S.W.2d 341, 344 (Tex. 1964); Tex. Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 148 (Tex. App.-Austin 1998, no pet.); Tex. Dep't of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex. App.-Austin 1992, writ denied). The Board may adopt reasonable or necessary rules consistent with the law regulating podiatry, Tex. Occ. Code Ann. § 202.151 (Vernon 2001), and its reasonable construction of the statute is entitled to great weight. S.W. Bell Tel. Co. v. Pub. Util. Comm'n, 31 S.W.3d 631, 639 (Tex. App.-Austin 2000, pet. filed). A rule must be in harmony with the general objectives of the act; to the extent it is not, it is beyond the agency's authority. Gerst v. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968).

Words that have acquired a technical meaning are construed accordingly. Tex. Gov't Code Ann. § 311.011(b) (Vernon 1998). The foot is the distal portion of the leg upon which an individual stands and walks, below the ankle joint. The tibia and fibula are leg bones, not part of the foot. The opinion read the rule to permit a podiatrist to treat the tibia and fibula at least in part, extending podiatry past the statute. It compared decisions holding the ankle is not part of the foot. Tenn. Med. Ass'n v. Bd. of Registration in Podiatry, 907 S.W.2d 820, 825 (Tenn. App. 1995); Conn. State Med. Soc'y v. Conn. Bd. of Exam'rs in Podiatry, 546 A.2d 830, 838 (Conn. 1988). But see Jaramillo v. Morris, 750 P.2d 1301, 1305-07 (Wash. App.), rev'w denied, 110 Wash.2d 1040 (1988) (podiatry board could define foot to include ankle). Because the rule was inconsistent with state law, the Board had acted beyond its authority.

Citations

Statutory and regulatory provisions:

• Tex. Occ. Code Ann. § 202.001(a)(4) (Vernon 2001)
• Tex. Occ. Code Ann. § 202.001(a)(3)(A) (Vernon 2001)
• Tex. Occ. Code Ann. § 202.151 (Vernon 2001)
• Tex. Occ. Code Ann. ch. 202 (Vernon 2001)
• Tex. Gov't Code Ann. § 311.011(b) (Vernon 1998)
• 26 Tex. Reg. 2385, 2390 (2001) (22 Tex. Admin. Code § 375.1)

Cases:

• State v. Jackson, 376 S.W.2d 341 (Tex. 1964)
• Tex. Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145 (Tex. App.-Austin 1998, no pet.)
• Tex. Dep't of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715 (Tex. App.-Austin 1992, writ denied)
• S.W. Bell Tel. Co. v. Pub. Util. Comm'n, 31 S.W.3d 631 (Tex. App.-Austin 2000, pet. filed)
• Gerst v. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702 (Tex. 1968)
• Tenn. Med. Ass'n v. Bd. of Registration in Podiatry, 907 S.W.2d 820 (Tenn. App. 1995)
• Conn. State Med. Soc'y v. Conn. Bd. of Exam'rs in Podiatry, 546 A.2d 830 (Conn. 1988)
• Jaramillo v. Morris, 750 P.2d 1301 (Wash. App.), rev'w denied, 110 Wash.2d 1040 (1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0441
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0441.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

December 17, 2001

The Honorable Patricia Gray
Chair, Public Health Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. JC-0441

Re: Whether a podiatrist's statutory authority to treat a "disease, disorder, physical injury, deformity or ailment of the human foot," Tex. Occ. Code Ann. § 202.001(a)(4) (Vernon 2001), includes authority to treat "the tibia and fibula in their articulation with the talus, . . . inclusive of all soft tissues . . . that insert into the tibia and fibula in their articulation with the talus," and related question (RQ-0404-JC)

Dear Representative Gray:

Section 202.001 of the Occupations Code defines the term "podiatry" as "the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method," Tex. Occ. Code Ann. § 202.001(a)(4) (Vernon 2001), although the statute does not define the term "foot." The Texas State Board of Podiatric Medical Examiners ("Board") recently has adopted a rule defining the term "foot" as "the tibia and fibula in their articulation with the talus . . . , inclusive of all soft tissues . . . that insert into the tibia and fibula in their articulation with the talus." See 26 Tex. Reg. 2385, 2391 (2001) (to be codified as an amendment to 22 Tex. Admin. Code § 375.1) (Tex. State Board of Podiatric Medical Examiners, Definitions). You question whether this regulatory definition enlarges, in a manner that is inconsistent with section 202.001 of the Occupations Code, the practice of podiatry to include the treatment of areas of the body other than the foot. We conclude that it does at least to the extent it permits a podiatrist to treat the tibia and fibula. You further ask whether "it is within the Board's rulemaking authority to define a term so that it effectively alters the practice of podiatry without first seeking legislative direction." Request Letter, supra note 1, at 2. The Board may not by regulation enlarge the practice of podiatry beyond what the statute allows.

A podiatrist is licensed to practice podiatry. See Tex. Occ. Code Ann. § 202.001(a)(3)(A) (Vernon 2001). Section 202.001 of the Occupations Code defines the term "podiatry" as "the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method." Id. § 202.001(a)(4). The statute does not define the term "foot."

Citing a need to clarify the term, the Board adopted a regulatory definition in March 2001:

            The foot is the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons, ligaments and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes.

26 Tex. Reg. 2385, 2390 (2001) (to be codified as an amendment to 22 Tex. Admin. Code § 375.1) (Tex. State Board of Podiatric Medical Examiners, Definitions); see also id. at 2385 ("The board has determined that there exists uncertainty among various groups resulting from the lack of a [statutory] definition of the term 'foot.'"). Incorporating the regulatory definition of "foot" into the statutory definition of the practice of podiatry, the practice of podiatry is the treatment of "the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of . . . soft tissues . . . ." You are concerned that the Board, by adopting this definition, has extended the practice of podiatry beyond the treatment "of the human foot," Tex. Occ. Code Ann. § 202.001(a)(4) (Vernon 2001), and that the Board has acted beyond its authority. See Request Letter, supra note 1, at 1.

To answer your second, general question first, the Board may not adopt a rule that enlarges the practice of podiatry beyond what the statute permits. As a state agency, the Board has only those powers that the legislature has expressly delegated to it or that may be implied from its express powers. See State v. Jackson, 376 S.W.2d 341, 344 (Tex. 1964); Tex. Parks & Wildlife Dep't v. Callaway, 971 S.W.2d 145, 148 (Tex. App.-Austin 1998, no pet.); Tex. Dep't of Human Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex. App.-Austin 1992, writ denied). The Board may adopt "reasonable or necessary rules . . . consistent with the law regulating the practice of podiatry" to regulate the practice of podiatry, Tex. Occ. Code Ann. § 202.151 (Vernon 2001), and its construction of the podiatry statute "is entitled to great weight, so long as" the Board reasonably interprets the statute's plain language. S.W. Bell Tel. Co. v. Pub. Util. Comm'n, 31 S.W.3d 631, 639 (Tex. App.-Austin 2000, pet. filed); accord Tex. Att'y Gen. Op. No. DM-443 (1997) at 1 (deferring to state agency's reasonable interpretation of statute it is charged to enforce). "The determining factor" in deciding whether an agency rule is authorized by and consistent with the agency's authority "is that the rule's provisions must be in harmony with the general objectives of the Act involved." Gerst v. Oak Cliff Sav. & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968); Tex. Att'y Gen. Op. No. JC-0072 (1999) at 5. To the extent an agency rule does not harmonize with the agency's statutory power, it is beyond the agency's authority to adopt. See Tex. Att'y Gen. Op. No. JC-0072 (1999) at 5.

In our opinion, a Board rule that effectively authorizes a podiatrist to treat a part of the body other than the foot extends the practice beyond the statutory limits. The practice of podiatry is limited by statute to treatment of the foot. Section 202.001 expressly defines podiatry as the treatment of a "disease, disorder, physical injury, deformity or ailment of the human foot." Tex. Occ. Code Ann. § 202.001(a)(4) (Vernon 2001) (emphasis added). We construe words and phrases that have acquired a technical meaning according to that meaning. See Tex. Gov't Code Ann. § 311.011(b) (Vernon 1998). The foot is defined as "the distal portion of the primate leg, upon which an individual stands and walks[, and consists,] in a man, of the tarsus [which includes the talus], metatarsus, and phalanges and the tissues encompassing them." Dorland's Illustrated Medical Dictionary 648 (27th ed. 1988); accord Taber's Cyclopedic Medical Dictionary 746 (19th ed. 2001); see also Black's Medical Dictionary 229 (37th ed. 1992) (defining "foot" as "that portion of the lower limb situated below the ankle joint"); VI Oxford English Dictionary 12 sense I.1.a (2d ed. 1989) (defining "foot" as "[t]he lowest part of the leg beyond the ankle-joint"); Webster's Ninth New Collegiate Dictionary 480 sense 1 (1984) (defining "foot" as "the terminal part of the vertebrate leg upon which an individual stands"). Thus, the Board has jurisdiction to determine whether a particular system or method of treatment constitutes the practice of podiatry, but only to the extent the system or method purports to treat the foot. See Tex. Att'y Gen. Op. No. DM-423 (1996) at 3 (deferring to the Board to determine whether hyperbaric oxygen therapy is within practice of podiatry); cf. Tex. Att'y Gen. Op. No. JC-0117 (1999) at 4.

We conclude, in answer to your first question, that the Board's regulation unreasonably extends the practice of podiatry to include treatment of the tibia and fibula, parts of the body that are not located in the foot. The rule defines the term "foot" to include "the tibia and fibula in their articulation with the talus . . . inclusive of all soft tissues . . . that insert into the tibia and fibula in their articulation with the talus . . . ." 26 Tex. Reg. 2385, 2390 (2001) (to be codified as an amendment to 22 Tex. Admin. Code § 375.1) (Tex. State Board of Podiatric Medical Examiners, Definitions). The tibia and fibula are leg bones; they are not part of the foot. While the regulatory definition follows the phrase "tibia and fibula" with the modifying phrase "in their articulation with the talus," we read the rule to include the tibia and fibula, at least in part, in the foot and thereby to permit a podiatrist to treat the tibia and fibula. This extends the practice of podiatry beyond what the statute permits. See also Tenn. Med. Ass'n v. Bd. of Registration in Podiatry, 907 S.W.2d 820, 825 (Tenn. App. 1995) (determining, as matter of law, that ankle sprain is not ailment of foot); Conn. State Med. Soc'y v. Conn. Bd. of Exam'rs in Podiatry, 546 A.2d 830, 838 (Conn. 1988) ("Had the legislature intended to include the ankle in the definition of 'foot,' it could easily have done so."). But see Jaramillo v. Morris, 750 P.2d 1301, 1305-07 (Wash. App.), rev'w denied, 110 Wash.2d 1040 (1988) (concluding that State Podiatry Board could define foot to include ankle). Given that the rule is inconsistent with state law regulating the practice of podiatry, the Board has acted beyond its authority.

[1] Letter from Honorable Patricia Gray, Chair, Committee on Public Health, Texas House of Representatives, to Honorable John Cornyn, Texas Attorney General (July 16, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

                                      SUMMARY

            The Texas State Board of Podiatric Medical Examiners may not adopt a rule that enlarges the practice of podiatry beyond what chapter 202 of the Occupations Code permits. See Tex. Occ. Code Ann. ch. 202 (Vernon 2001). By defining the term "foot" as "the tibia and fibula in their articulation with the talus, . . . inclusive of all soft tissues . . . that insert into the tibia and fibula in their articulation with the talus," the Board has extended the practice of podiatry beyond what section 202.001 of the Occupations Code authorizes.

                                           JOHN CORNYN
                                           Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee