Texas Board of Chiropractic Examiners v. Texas Medical Ass'n
2012 Tex. App. LEXIS 5428
| Tex. App. | 2012Background
- TBCE promulgated a Scope of Practice rule in 2011 defining chiropractic duties, including needle EMG, MUA, and certain diagnoses.
- The rule was challenged by TMA and TCA as beyond chiropractic scope and violating the Medical Practice Act and Texas Constitution, with TMB joining as a plaintiff.
- Texas statutes structure chiropractic separately from medicine, with a broad exempted scope for chiropractic while reserving medicine to physicians under the Medical Practice Act.
- Past legislation (1989, 1995, 2005 sunset provisions) refined what procedures are incised or surgical and limited TBCE’s authority to certify MUA.
- Disputes centered on whether needle EMG and MUA are incised/surgical, and whether TBCE could authorize these under the CPT Codebook-based definition of surgical procedures.
- The district court granted summary judgment invalidating needle EMG, MUA, and certain diagnoses provisions; on appeal the court reversed in part and remanded for constitutional considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether needle EMG rules exceed chiropractic scope | Physician Parties: EMG is incisional/surgical; outside chiropractic | Chiropractors may use needles non-incisive; TBCE text supports EMG within scope | Needle EMG rules exceed authority; void |
| Whether manipulation under anesthesia (MUA) is within chiropractic scope | MUA is a surgical procedure excluded from chiropractic | MUA described in CPT surgical section; may be within chiropractic under specific construction | MUA is a surgical procedure excluded; void |
| Whether TBCE could authorize chiropractors to diagnose under 75.17(d) | Diagnoses exceed chiropractic’s biomechanical scope | Diagnoses are encompassed by analyzing/evaluating within biomechanical scope | Subparts (d)(1)(A) and (d)(1)(B) upheld as within scope |
| Whether rule interpretive language and cross-references to CPT codebook constitute constitutionally permissible delegation | Delegation to AMA CPT coding constitutes improper delegation | CPT code incorporation fixed to 2004 edition; constitutional as text-based | Section 201.002(a)(4) valid; no improper delegation |
Key Cases Cited
- Texas Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997) (eight-factor test for delegation of authority to private entities)
- Ex parte Elliott, 973 S.W.2d 737 (Tex. App.‑Austin 1998) (statutory incorporation by reference; fixed version rule)
- Gulf States Utils. Co. v. Public Utils. Comm’n, 809 S.W.2d 201 (Tex. 1991) (agency interpretations of regulations defer unless plainly erroneous)
- City of Garland v. Public Util. Comm’n, 165 S.W.3d 814 (Tex.App.-Austin 2005) (statutory construction and deference standards for agency interpretations)
- In re Nash, 220 S.W.3d 914 (Tex. 2007) (statutory construction can consider consequences and context)