22 TAC §75.21
The Texas Board of Chiropractic Examiners (Board)
adopts new §75.21, relating to acupuncture, to set forth the
minimal acceptable qualifications and procedures for the practice
of acupuncture by licensed doctors of chiropractic. Section 75.21
is adopted with changes to the proposed text published in the January
2, 2009, issue of the Texas Register (34
TexReg 22). In drafting this rule, the Board consulted the rules of
the chiropractic licensing boards of Colorado, Florida, Missouri,
New Jersey, Ohio, Tennessee, and Virginia, in addition to other sources.
Acupuncture has been part of the practice of chiropractic in Texas
since before this Board was founded in 1949. The practice of acupuncture
by chiropractors has been expressly authorized since the Legislature
amended the Acupuncture Act in 1997 to allow chiropractors and other
health care practitioners to practice acupuncture when they are acting
within the scope of their licenses (See Texas Occupations Code §205.003).
Post-graduate training in acupuncture is offered by the chiropractic
colleges, and the National Board of Chiropractic Examiners (NBCE)
offers a national standardized certification examination in acupuncture
in addition to the 4,500 didactic and clinical hours required for
licensure (See http://www.nbce.org/written/desc-acu.html.)
However, these training requirements are needed in order to
bring the licensing standards in Texas into line with the licensing
standards of other states.
The Board has previously determined that acupuncture is within
the scope of practice of chiropractic in Texas (See 22 TAC §75.17,
relating to scope of practice). The practice of acupuncture by a chiropractor
is both authorized and limited by the Chiropractic Act (See Texas
Occupations Code §201.002(b)). The Board's existing rule regarding
proper diligence and efficient practice of chiropractic, §75.2
of this title, requires that a chiropractor not perform or attempt
to perform procedures in which the chiropractor is untrained by education
or experience.
WORKING GROUP
In light of the numerous comments received regarding the number
of hours of training that would be sufficient for a licensed doctor
of chiropractic to practice acupuncture, the Board has determined
that further rulemaking is needed on this issue. To that end, the
Board has formed an interdisciplinary working group to study this
issue and has invited the Texas Association of Acupuncture and Oriental
Medicine and other interested groups to participate in this study.
Other persons interested in participating in this working group are
encouraged to contact the Board's Executive Director, Mr. Glenn Parker,
at (512) 305-6706 or glenn.parker@tbce.state.tx.us or via facsimile
at (512) 305-6705. However, due the importance of establishing some
standards for the education and training required for the practice
of acupuncture by a licensed doctor of chiropractic and in order to
provide prospective applicants for licensure with notice of the required
standards, the Board has decided to adopt the rule as proposed with
changes in response to comments. As a result of the working group's
study, the Board anticipates amending this rule in a later rulemaking
to increase the number of hours of training required to practice acupuncture.
OVERVIEW
Subsection (a) of this proposed rule would provide a definition
for acupuncture and the related practices of acupressure and meridian
therapy. Subsection (b) would establish that a licensee must have
the equivalent of one-hundred (100) hours of training in acupuncture
by one of three means. Subsection (c) would provide for the grandfathering
of existing licensees, that are in good standing with the Board and
other jurisdictions where they are licensed, by allowing licensees
to receive a credit of ten hours of training in acupuncture for each
year of practice. Thus, a licensee that has been practicing for at
least ten years would be able to meet the requirement for 100 hours
of training. Subsection (d) would require that, beginning on January
1, 2010, applicants for licensure must successfully complete either
the national standardized certification examination in acupuncture
offered by the National Board of Chiropractic Examiners or the examination
offered by the National Certification Commission for Acupuncture and
Oriental Medicine.
RESPONSE TO COMMENTS
The Board received fourteen comments in opposition to the proposed
rule from the Academy of Oriental Medicine at Austin, Accreditation
Commission for Acupuncture and Oriental Medicine, American College
of Acupuncture and Oriental Medicine, National Certification Commission
for Acupuncture and Oriental Medicine, Patients First Coalition, Texas
Association of Acupuncture and Oriental Medicine, Texas Association
of Acupuncturists, Texas College of Traditional Chinese Medicine,
Texas Medical Association, Texas Neurological Society, Texas Pain
Society, Texas Pediatric Society, Texas Society of Pathologists, Texas
State Board of Acupuncture Examiners, and Texas Urological Society.
The Board received three comments in support of the rule from Parker
College of Chiropractic, the Texas Chiropractic Association, and from
a licensed doctor of chiropractic.
In response to a request from the public, the Board's Rules Committee
held a public hearing on the proposed rule in Austin on April 28,
2009. At the hearing, the committee heard from the Academy of Oriental
Medicine at Austin, Texas Association of Acupuncture and Oriental
Medicine, Texas Association of Acupuncturists, Texas Chiropractic
Association, and Texas College of Traditional Chinese Medicine and
received additional written comments. All of the comments received
are addressed below.
Six comments said that the proposed rule would improperly expand
the practice of chiropractic to include needle electromyography (EMG).
One comment said that the proposed language would allow chiropractors
to perform procedures they are not legally allowed to perform. These
comments are not germane to this rulemaking. This rule merely sets
forth educational standards for the practice of acupuncture by doctors
of chiropractic and does not address the practice of chiropractic.
The Board has previously determined that acupuncture and needle EMG
are part of the practice of chiropractic in Texas (See scope of practice
rule at 22 TAC §75.17). The Board's comments regarding acupuncture
and needle EMG on adoption of the scope of practice rule are incorporated
herein by reference as published in the June 2, 2006, issue of the Texas Register
(31 TexReg 4613). No change
was made in response to these comments.
One comment stated that the Acupuncture Act, Texas Occupations
Code §205.001(2), limits the scope of acupuncture to a treatment
modality and not a diagnostic procedure. Additional comments said
that the use of acupuncture should be performed according to the definition
set out in the Acupuncture Act. These comments are not germane to
this rulemaking. Section 205.003 of the Acupuncture Act provides that
the Acupuncture Act "does not apply to a health care professional
licensed under another statute of this state and acting within the
scope of the license." The Board discussed the practice of acupuncture
by licensed doctors of chiropractic as part of the scope of practice
rulemaking, and those comments are incorporated herein by reference
(31 TexReg 4613). In addition, the definition of acupuncture used
in this rule applies only to the education and training requirements
in this rule. Furthermore, chiropractors are authorized to "use objective
and subjective means to analyze, examine, or evaluate the biomechanical
condition of the spine and musculoskeletal system of the human body"
(Tex. Occ. Code §201.002(b)(1)). No change was made in response
to these comments.
Two comments stated that the definition of acupuncture in the Acupuncture
Act is binding upon the Board and that, if the definition of acupuncture
requires interpretation, the Board should defer to the Texas State
Board of Acupuncture Examiners to make that interpretation. The Board
respectfully disagrees. Section 205.003 of the Acupuncture Act provides
that the Acupuncture Act "does not apply to a health care professional
licensed under another statute of this state and acting within the
scope of the license." The Board has authority to adopt rules regarding
the practice of chiropractic, including the practice of acupuncture
by doctors of chiropractic (Tex. Occ. Code §201.152 and §201.1525).
Furthermore, the discussion of acupuncture in this rule applies only
to the training in acupuncture that is expected by a doctor of chiropractic
that includes acupuncture as part of their practice. The Board discussed
the practice of acupuncture by licensed doctors of chiropractic as
part of the scope of practice rulemaking, and those comments are incorporated
herein by reference (31 TexReg 4613). No change was made in response
to this comment.
One comment stated that the proposed definition of acupuncture
in subsection (a) exceeded the Board's rulemaking authority. The Board
disagrees. Section 205.003 of the Acupuncture Act provides that the
Acupuncture Act "does not apply to a health care professional licensed
under another statute of this state and acting within the scope of
the license." The Board has authority to adopt rules regarding the
practice of chiropractic, including the practice of acupuncture by
doctors of chiropractic (Tex. Occ. Code §201.152 and §201.1525).
Furthermore, the discussion of acupuncture in this rule applies only
to the training in acupuncture that is expected by a doctor of chiropractic
that includes acupuncture as part of their practice. No change was
made in response to this comment.
One comment stated that the proposed rule would disrupt existing
referral patterns between chiropractors and acupuncturists and that
acupuncturists would be less likely to refer patients to chiropractors.
The Board disagrees. The Board anticipates that chiropractors will
continue to work cooperatively with acupuncturists and other health
care providers in promoting the best practices for patient care. No
change was made in response to this comment.
Eight comments stated that the requirement of only 100 hours in
undergraduate or post-graduate classes in the use and administration
of acupuncture, examination in acupuncture by the National Board of
Chiropractic Examiners, or 100 hours of training in the use and administration
of acupuncture is inadequate and that, in order to demonstrate minimal
competence, the number of hours should be increased to approximate
the number of hours required to graduate from an accredited acupuncture
school. As noted above, the Board agrees in part and notes that the
specific training in acupuncture under this rule is in addition to
the normal requirements of a chiropractic education. For comparison,
one Texas acupuncture school, the Academy of Oriental Medicine at
Austin, requires as part of a three-year program 528 hours in acupuncture
and techniques, 636 hours in Chinese herbal studies, 492 hours in
integral studies, 546 hours in biomedical sciences, and 1,008 hours
in clinical training. Whereas, one Texas chiropractic school, Parker
College of Chiropractic, requires as part of its nine trimester program
1,290 hours in the basic sciences, 915 hours in the chiropractic sciences,
1,320 hours in clinical sciences, and 1,005 hours in a chiropractic
wellness clinic. As discussed above, the Board is contemplating further
rulemaking to possibly increase the number of required hours and is
forming an interdisciplinary working group to study this issue. No
change was made in response to this comment at this time.
Four comments stated that the amount of training required under
the rule presented a risk to public safety. The Board agrees with
their concerns regarding the risk of adverse events with acupuncture.
However, the proposed rule will provide at least an initial standard
for training. Whereas, the only standard that currently applies is
under §75.2(a)(1)(B) which provides only that a licensee may
not perform or attempt to perform procedures in which they are untrained
by education or experience. As noted above, the Board has formed a
working group to study this issue further. No change was made in response
to this comment at this time.
Two comments stated that there are no accreditation programs that
provide only 100 hours of acupuncture training. The Board disagrees.
The NBCE exam and some states require 100 hours. As noted above, the
Board has formed a working group to study this issue further. No change
was made in response to this comment at this time.
One comment stated that it would be inadequate to allow a person
to practice acupuncture based solely on successfully completing the
NBCE acupuncture exam. The Board agrees. However, acupuncture may
only be practiced by a licensed chiropractor who had fulfilled both
the requirements of this rule and the other requirements for licensure,
including successfully completing a chiropractic education and the
other mandatory NBCE exams. No change was made in response to this
comment.
Two comments stated that inadequate training would also contribute
to poor clinical outcomes. One comment stated that poor clinical outcomes
would discourage patients from seeking the care of acupuncturists
and chiropractors. The Board agrees with these concerns but notes
that the training required in order to practice acupuncture under
this rule would be in addition to the general education and training
requirements for a license to practice chiropractic. Chiropractors
also have an existing and ongoing obligation to assess and evaluate
a patient's status under §75.2(a)(1)(A) of this title, relating
to proper diligence and efficient practice of chiropractic. As noted
above, the Board has formed a working group to study this issue further.
No change was made in response to this comment at this time.
Two comments stated that the chiropractic schools do not offer
sufficient training in acupuncture in either academic or clinical
training. The Board agrees. This is why this rule sets forth training
requirements for the practice of acupuncture that are in addition
to the training provided as part of a chiropractic degree program.
No change was made in response to this comment.
One comment stated that the proposed rule is contrary to the trend
in healthcare of raising standards for licensure. The Board disagrees.
Currently, the Board has no express requirements setting forth minimum
standards for the practice of acupuncture by chiropractors. This rule
will establish minimum standards, and through the work of the working
group discussed above, the Board will look at increasing these standards.
Thus, this rule is consistent with the trend of raising standards
for licensure and practice. No change was made in response to this
comment.
One comment suggested that anyone who practices acupuncture should
be required to pass the examination offered by the National Certification
Commission for Acupuncture and Oriental Medicine (NCCAOM). The Board
agrees in part. As set forth in this rule, the NBCE acupuncture exam
in combination with the other required exams, Parts I - IV, is sufficient
to demonstrate competency and to protect the public health, safety,
and welfare (See www.nbce.org). The Board acknowledges, however, the
value of recognizing the NCCAOM exam and in allowing applicants the
choice of which exam to take. Subsections (b)(2) and (d) have been
revised to allow for applicants to take the NCCAOM exam.
One comment recommended that the Board also require successful
completion of the Council of Colleges of Acupuncture and Oriental
Medicine's Clean Needle Technique course and practical examination.
The Board disagrees. Applicants for licensure are required to participate
in substantial clinical training for their chiropractic degree and
required to successfully complete the NBCE's Part IV clinical exam,
both of which cover subjects similar to those covered by the suggested
clean needle technique course and exam. No change was made in response
to this comment.
Two comments disagreed with the provision for grandfathering existing
licensees under subsection (c) that have been practicing acupuncture
without any training. The Board disputes the basis of this comment.
While the Board has not had an express training requirement for a
specific number of hours, licensees have been required to have training
under §75.2(a)(1)(B). However, the Board agrees that this provision
could be revised to clarify that doctors of chiropractic are expected
to be trained in acupuncture. In addition, the Board finds that the
amount of hours credited for each year of practice should be reduced
to ten hours per year to ensure that existing practitioners have the
requisite experience consistent with the standards adopted in this
rule to continue practicing.
One comment suggested that subsection (d) of the proposed rule
be revised for clarity to replace the last occurrence of "licensure"
in the first sentence with "acupuncture." The Board agrees with this
comment and has made the suggested change.
One comment suggested that subsection (d) be revised to add language
to clarify that the provisions of subsection (b) will apply only to
new applicants. The Board disagrees. The rule is structured so that
the general requirements for licensees are in subsection (b), the
grandfathering provision for existing licensees is in subsection (c),
and the requirement that after January 1, 2010, new licensees must
complete the NBCE acupuncture exam is in subsection (d). No change
was made in response to this comment.
One comment requested that if the Board is to proceed with this
rulemaking that an advisory committee be formed as provided for under
the Administrative Procedure Act, §2001.031. The Board agrees
in part. As noted above, the Board has formed a working group to further
study the appropriate number of hours that should be required and
that working group meets the general requirements of §2001.031.
However, as also noted above, the Board sees that it is important
to adopt a rule now in order to establish initial standards for training
in acupuncture and to provide prospective applicants with notice of
the requirements for licensure. No change was made in response to
this comment.
AUTHORITY
The new rule is adopted under Texas Occupations Code §201.152,
relating to rules, and §201.1525, relating to rules clarifying
scope of chiropractic. Section 201.152 authorizes the Board to adopt
rules necessary to regulate the practice of chiropractic. Section
201.1525 authorizes the Board to adopt rules requiring a license holder
to obtain additional training or certification to perform certain
procedures or use certain equipment.
No other statutes, articles, or codes are affected by the new rule.
§75.21.Acupuncture.
(a) Acupuncture, and the related practices of acupressure
and meridian therapy, includes methods for diagnosing and treating
a patient by stimulating specific points on or within the musculoskeletal
system by various means, including, but not limited to, manipulation,
heat, cold, pressure, vibration, ultrasound, light electrocurrent,
and short-needle insertion for the purpose of obtaining a biopositive
reflex response by nerve stimulation.
(b) In order to practice acupuncture, a licensee shall either:
(1) successfully complete at least one-hundred (100)
hours training in undergraduate or post-graduate classes in the use
and administration of acupuncture provided by a bona fide reputable
chiropractic school or by an acupuncture school approved by the Texas
State Board of Acupuncture Examiners;
(2) successfully complete either:
(A) the national standardized certification examination
in acupuncture offered by the National Board of Chiropractic Examiners; or
(B) the examination offered by the National Certification
Commission for Acupuncture and Oriental Medicine; or
(3) successfully complete at least one-hundred (100)
hours training in the use and administration of acupuncture in a course
of study approved by the board.
(c) Existing licensees that have been trained in acupuncture,
that have been practicing acupuncture, and that are in good standing
with the Texas Board of Chiropractic Examiners and other jurisdictions
where they are licensed, may meet the requirements of subsection (b)
of this section by counting each year of practice as ten hours of
training in the use and administration of acupuncture.
(d) Beginning on January 1, 2010, an applicant for
licensure must successfully complete either the national standardized
certification examination in acupuncture offered by the National Board
of Chiropractic Examiners or the examination offered by the National
Certification Commission for Acupuncture and Oriental Medicine in
order to practice acupuncture. This requirement will supersede the
provisions of subsection (b) of this section.
This agency hereby certifies that the adoption has
been reviewed by legal counsel and found to be a valid exercise of
the agency's legal authority.
Filed with the Office of the Secretary of State on June 12, 2009.
TRD-200902378
Glenn Parker
Executive Director
Texas Board of Chiropractic Examiners
Effective date: July 2, 2009
Proposal publication date: January 2, 2009
For further information, please call: (512) 305-6901