The opinion
ACCEPTED
03-15-00262-CV
7772143
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/10/2015 4:28:34 PM
JEFFREY D. KYLE
CLERK
RECEIVED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
11/10/2015 4:28:34 PM
November 10, 2015 JEFFREY D. KYLE
Clerk
Honorable Jeffrey D. Kyle
Clerk, Third Court of Appeals
209 West 14th Street, Room 101
Austin, TX 78701
RE: Supporting the Texas Association of Acupuncture and Oriental
Medicine (TAAOM) in: Texas Association of Acupuncture and Oriental Medicine
v. Texas Board of Chiropractic Examiners, No. 03-15-00262-CV
Dear Mr. Kyle:
I write this letter on behalf of AOMA Graduate School of Integrative
Medicine (AOMA). AOMA has sustained operations in the state of Texas since
1993, and is accredited by the Southern Association of Colleges and Schools as a
level V doctoral degree granting institution. Our graduates are authorized to sit for
the National Certification Commission for Acupuncture and Oriental Medicine
board exams vis-à-vis successful completion of a four year program of study
accredited by the Accreditation Commission for Acupuncture and Oriental
Medicine. These graduates, by these virtues, are licensed by the Texas State Board
of Acupuncture Examiners under the Texas Medical Board.
2
This Amicus contains three points. First, there has been an inadequate
process conducted by the Texas Board of Chiropractic Examiners (TBCE) for
establishing educational standards by which to adjudicate the practice of
acupuncture by chiropractors. Second, the TBCE has failed their obligation to the
public with respect to oversight of chiropractors practicing acupuncture in the State
of Texas. The TBCE lacks the capacity to oversee the practice of acupuncture and
has provided no oversite of chiropractors practicing acupuncture. Last, TBCE is in
fact acting more as a Guild and serving the interests of chiropractic professionals
rather than operating within their mission, which is to protect public safety.
Failed Educational Process
To date, the TBCE have failed to present documentation of legitimate
‘certification’ for the practice of acupuncture by chiropractors. This is the situation
with purported ‘chiropractic acupuncture education,’ which leads to the ability of
the chiropractor to practice acupuncture in the State of Texas. A legitimate process
would include the following:
1. Safety assessment
2. Needs assessment
3. Inclusive process for development of competencies
4. Rigorous process for qualifying faculty
5. A certification process that is run by agencies different than the
profit-making seminar business
3
The most glaring deficit in educational processes for chiropractors practicing
acupuncture is that there is no requirement for clinical education with appropriate
oversight. It fails common sense to have no requirements for supervised clinical
practice for a procedure based practice with known risk.1 This was confirmed in a
dialogue with Dr. Ken Thomas of Parker University at a 2012 TBCE ad hoc
acupuncture meeting. To wit:
Will Morris of AOMA (acupuncture school):
"I think I just heard you say that a chiropractor could graduate from Parker
qualified to practice acupuncture and sit for the nationals without having any
clinical oversight of their skills at all. Is that correct?
Ken Thomas of Parker University (chiropractic college):
Yes, there's no clinical requirement in our clinical component at our
university.2
The National Certification Commission for Acupuncture and Oriental
Medicine through an industry-wide consensus process of more than 30 years has
determined that some 900 hours of clinical oversight is appropriate.
Currently, no chiropractic education/certification body has demonstrated a
legitimate certification process for acupuncture. To the contrary, the TBCE
1
See CCAOM Clean Needle Technique Manual 7th Edition,
Part I: AOM Clinical Procedures, Safety, Adverse Events (AEs) and Recommendations to
Reduce AEs, available at
http://www.ccaom.org/downloads/7thEditionManualEnglishPDFVersion.pdf.
2
Chiropractic Board July 11, 2012 ad hoc meeting, at 2:06:26, available at
https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
4
considers it appropriate to authorize seminar companies who certify their own
graduates as a legitimate process. This fails the best practices of arm’s-length
relations between educational and certification processes. Furthermore, during the
aforementioned 2012 TBCE ad hoc acupuncture meeting, the committee members
demonstrated no awareness of such best practices. While they promised to do a
rigorous examination of these best practices, they have failed to do so to date.3
Failure to Regulate
The TBCE is unable to assess how many chiropractors practice acupuncture
in the State of Texas. This calls into question the capacity of the TBCE to oversee
a procedure performed by its licensees which has known risk. This is compounded
by the fact that the TBCE is willing to allow chiropractors to practice acupuncture
with no clinical training in the practice of acupuncture.
Guild Conduct of the TBCE
It is the role and responsibility of all licensing agencies to protect the public
good. The TBCE, however, has taken it upon itself to interpret the Acupuncture
Chapter as an authorization to expand the practice of chiropractic beyond what the
Chiropractic Chapter allows. Such an interpretation is performed in service to the
chiropractic professional and not to the public. This orientation of putting the
3
Chiropractic Board July 11, 2012 ad hoc meeting, at 1:16:50 - 1:27:35 and 1:47:37 – 1:50:56,
available at https://www.tbce.state.tx.us/Hearings/Acupuncture20120711.MP3.
5
profession over the public good is evident in the TBCE failure to properly vet the
qualification process whereby chiropractors may practice acupuncture, and in its
failure to regulate the practice of acupuncture by chiropractors. This is Guild-like
behavior, and it is not appropriate conduct for an agency mandated with the
protection of the public.
Sincerely,
/s/ William R. Morris
William R. Morris, PhD, DAOM, LAc
President/CEO
AOMA Graduate School of Integrative Medicine
4701 West Gate Blvd., Austin, TX 78745
Tele: (512) 454-1199
E-mail: wmorris@aoma.edu
CERTIFICATION OF AMICUS
I certify on behalf of Amicus Curiae, that no persons other than Amicus
Curiae or its counsel made any monetary contribution to the preparation or
submission of this Amicus letter.
/s/ William R. Morris
William R. Morris, PhD
CERTIFICATION OF COMPLIANCE
I certify on behalf of Amicus Curiae, that this Amicus letter contains 786
words according to the word count feature of the software used to prepare this
Amicus letter.
6
/s/ William R. Morris
William R. Morris, PhD
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Amicus letter has been served to all attorneys of record as listed below on
11/10/2015.
/s/ William R. Morris
William R. Morris, PhD
Joe H. Thrash
Assistant Attorney General
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Joe.Thrash@texasattorneygeneral.gov
Craig T. Enoch
Enoch Kever, PLLC.
600 Congress Avenue, Suite 2800
Austin, Texas 78701
cenoch@enochkever.com