Can the Texas Medical Board refuse to license a doctor from another state just because that state let him take the FLEX exam before he finished medical school?

Texas AG Opinion JM-512: Reciprocal Licensing of Out-of-State Physicians

Plain-English summary

The chairman of the House Committee on Public Health asked about the authority of the Texas Board of Medical Examiners. The board had refused a reciprocal license to a doctor licensed in Arkansas because that doctor took the Federation Licensing Examination (FLEX) before graduating from medical school. In Texas, applicants cannot take the licensing examination, which includes the FLEX, until after graduation. In Arkansas, both graduation and a passing FLEX score are required, but the exam can be taken earlier. The question was whether the other state's allowing the FLEX before graduation statutorily prevents Texas from granting reciprocity. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

JM-512 concluded it does not. Under the Medical Practice Act, article 4495b, section 3.03(a), the board may license by reciprocity a physician who is a reputable physician, a graduate of a reputable medical school, and licensed in a state or Canadian province with requirements for registration and practice "substantially equivalent" to those in Texas. The applicant here met those requirements. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

The board argued the timing of the FLEX mattered for quality control. The AG disagreed, reasoning that a test score would not be deceptively high just because the person taking the test had less training than others. So it would be unreasonable as a matter of law for the board to conclude, based on the timing of the FLEX alone, that a state accepting pre-graduation FLEX scores had requirements that were not substantially equivalent to Texas. The opinion added one caveat: the board also pointed out that Arkansas may not require a year of graduate medical training, which could raise a real substantial-equivalence problem, but that separate question was not before the AG. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The Medical Practice Act (article 4495b, V.T.C.S.) has since been recodified into the Texas Occupations Code, and medical licensing standards and examinations have changed since the FLEX era. Treat this page as historical context, not current legal advice, and check the current Occupations Code and Texas Medical Board rules before relying on any rule mentioned here.

Common questions

Can the Texas Medical Board deny reciprocity just because of when an applicant took the exam?

No, not on that basis alone. JM-512 concluded the Medical Practice Act does not prevent reciprocal licensing solely because the physician took the FLEX before graduating from medical school. The board would need a valid reason tied to the statutory standard, not just the timing of the exam. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

What does the Medical Practice Act require for a reciprocal license?

Under section 3.03(a), the board may license by reciprocity a physician who is (1) a reputable physician, (2) a graduate of a reputable medical school, and (3) licensed in a state or Canadian province whose requirements for registration and practice are substantially equivalent to those of Texas. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

Why didn't the timing of the FLEX matter?

Because it does not make the score less reliable. The AG reasoned that a test score would not be deceptively high simply because the person taking it had less training, so treating the pre-graduation timing alone as proof that another state's standards are not substantially equivalent would be unreasonable as a matter of law. It cited Allstate Insurance Company v. State Board of Insurance for the rule that administrative decisions must be reasonable. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

Could the board still deny this doctor a license for another reason?

Yes. The opinion flagged that Arkansas may not require a year of graduate medical training, which Texas does. If so, that could mean Arkansas's requirements are not substantially equivalent to Texas, a separate ground. But the AG said that substantial-equivalence question was not before it and did not decide it. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

Background and statutory framework

The opinion construed the reciprocity provision of the Medical Practice Act, article 4495b. Section 3.03(a) lets the board, in its discretion, license a reputable physician who graduated from a reputable medical college and is licensed in another state or Canadian province with substantially equivalent requirements. Section 3.03(d) defines a "reputable physician" as one who would be eligible for examination by the board, and section 3.04(a) lists the eligibility criteria (age, professional character, 60 semester hours of non-medical college coursework, graduation from a board-approved medical school, and a one-year graduate medical training program), while allowing an applicant to sit for examination before completing that final training requirement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

Applying those provisions, the AG accepted that the applicant met the requirements and was a graduate of a reputable medical school. It then rejected the board's timing-based objection as unreasonable, citing Allstate Insurance Company v. State Board of Insurance for the principle that administrative rules and decisions must be reasonable. The opinion carefully preserved the distinct issue of whether Arkansas's lack of a graduate-medical-training requirement made its standards not substantially equivalent, declining to decide a question that was not presented. A footnote assumed the version of the FLEX at issue was one acceptable to Texas, citing 22 T.A.C. section 163.3. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

Statutory and regulatory provisions:

• V.T.C.S. art. 4495b (Medical Practice Act), §§ 3.03(a), 3.03(d), 3.04(a)
• 22 T.A.C. § 163.3

Cases:

• Allstate Insurance Company v. State Board of Insurance, 401 S.W.2d 131, 132 (Tex. Civ. App. - Austin 1966, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0512
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0512.pdf

Original opinion text

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

The Attorney General of Texas

July 9, 1986

JIM MATTOX
Attorney General

Honorable Brad Wright
Chairman
Committee on Public Health
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-512

Re: Licensing of out-of-state physicians

Dear Representative Wright:

You have requested an Attorney General's Opinion concerning the authority of the Texas Board of Medical Examiners. You state that the board has refused to grant a reciprocal license to a doctor licensed in Arkansas because that doctor took the Federation Licensing Exam (FLEX) before he graduated from medical school. Applicants for licensing by examination in Texas are not eligible to take the Texas Licensing Examination, which includes the FLEX, until after graduation from medical school. In Arkansas, both graduation from medical school and a passing score on the FLEX are prerequisites to licensing. Arkansas differs from Texas in that in Texas a person may not take the FLEX until after graduation. Therefore, you ask:

Does the fact that the state in which a medical doctor attended school allowed the doctor to take the FLEX exam prior to graduation statutorily prevent Texas from granting reciprocity to that [physician]?

The Medical Practice Act grants the board authority to grant licenses to physicians licensed in other states:

Sec. 3.03 (a) The board ... at its sole discretion and upon payment by an applicant of a fee prescribed by the board under this Act, may grant a license to practice medicine to any reputable physician who is a graduate of a reputable medical college and who:

(1) is a licensee ... of another state or Canadian province having requirements for physician registration and practice substantially equivalent to those established by the laws of this state... .

V.T.C.S. art. 4495b, § 3.03(a). In other words, section 3.03(a) allows the board to license by reciprocity a physician who meets the following requirements: (1) the applicant is a "reputable physician"; (2) the applicant is a graduate of a "reputable medical school"; and (3) the applicant is licensed in a state or Canadian province that has requirements for registration and practice "substantially equivalent" to those in Texas.

The act defines "reputable physician" as "one who would be eligible for examination by the board." V.T.C.S. art. 4495b, § 3.03(d). To be eligible for examination in Texas an applicant must show that he:

(1) is at least 21 years of age;

(2) is of good professional character;

(3) has completed 60 semester hours of college courses other than in medical school, which courses would be acceptable, at the time of completion, to The University of Texas for credit on a bachelor of arts degree or a bachelor of science degree;

(4) is a graduate of a medical school or college that was approved by the board at the time the degree was conferred; and

(5) has successfully completed a one year program of graduate medical training approved by the board. In addition to other license requirements, the board may require by rule and regulation that graduates of medical schools located outside the United States and Canada comply with other requirements that the board considers appropriate, including but not limited to additional graduate medical training in the United States, except those who qualify for licensure in Section 5.04 of this Act. However, the applicant shall be eligible for examination prior to complying with Subdivision (5) of Subsection (a) of this section but shall not be eligible for the issuance of an unrestricted license until the requirements of this subsection have been satisfied. (Emphasis added).

Art. 4495b, § 3.04(a). You tell us that the applicant in question meets all these requirements and that he is a graduate of a "reputable medical school."

The board has submitted a brief explaining that its determination in the case you describe is based (at least in part) on the statutory requirement that an applicant for licensing by reciprocity be licensed in a state or Canadian province that has requirements for registration and practice "substantially equivalent" to those in Texas. Art. 4495b, § 3.03(a). The board has submitted a brief arguing that the timing of the FLEX is important for quality control. Logic and experience however, tell us that a test score would not be deceptively high because the person taking the test had less training than others taking the test. Therefore, we think it would be unreasonable as a matter of law for the board to conclude, based on the timing of the FLEX alone, that the test score requirements of a state that accepted FLEX scores achieved before graduation were not "substantially equivalent" to Texas' test score requirements. See Allstate Insurance Company v. State Board of Insurance, 401 S.W.2d 131, 132 (Tex. Civ. App. - Austin 1966, writ ref'd n.r.e.) (administrative rules must be reasonable).

The board's brief does, however, point to a potential problem with reciprocal licensing of physicians licensed in Arkansas. The board tells us that Arkansas does not require a year of graduate medical training as a prerequisite to licensing of physicians. If that is in fact so, an Arkansas physician may be licensed in a state that does not have "requirements for registration and practice substantially equivalent" to those in Texas. Apart from the question of the sequence of the FLEX and graduation, however, the question of whether or not the Arkansas requirements for registration and practice are "substantially equivalent" to those in Texas is not before us.

SUMMARY

The Medical Practice Act does not prevent the licensing by reciprocity of a physician solely because the physician took the Federal Licensing Examination before graduation from medical school.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

1. We assume that the version of the FLEX is one that is acceptable to Texas. See 22 T.A.C. § 163.3.