Texas Register, Volume 31, Number 22, Pages 4529-4684, June 2, 2006 Page: 4,615

                                
201.1526). Through this rulemaking process, the Board has
found that there has been no history of complaints or malpractice
insurance claims against chiropractors relating to the practice
of needle EMG. This lack of complaints and malpractice claims
indicates that the practice of needle EMG by chiropractors has
not presented any concerns regarding public health and safety.
However, uncertainty regarding whether needle EMG is within
the scope of practice of chiropractic has lead insurers to question
and delay payments for the procedure.
Therefore, the Board finds, based upon (a) its technical review of
the practice of needle EMG; (b) its legal authority under the Chi-
ropractic Act as amended by H.B. 972; (c) the need to resolve
this issue; and (d) the absence of any concern for public health
and safety for more than 25 years regarding the practice of nee-
dle EMG by chiropractors that needle EMG is within the scope of
practice of chiropractic in Texas. The Board has set forth training
requirements and standards for electro-neuro diagnostic testing,
including needle EMG, at 75.17(c)(3)(A).
Manipulation Under Anesthesia
Manipulation under anesthesia (MUA) has been part of the prac-
tice of chiropractic in Texas for more than 25 years. The Board
has not received any complaints regarding the practice of MUA,
and the principal malpractice insurance carrier for chiropractors
in Texas has likewise not received any claims. However, MUA
is listed under the surgical codes of the CPT Codebook. Con-
sequently, the Board is still reviewing several issues regarding
MUA and whether it is within the scope of practice of chiroprac-
tic in Texas as described under the Chiropractic Act. In the ab-
sence of any evidence of a risk to the public health, the Board
has elected to not disturb the status quo until it has reached a
final conclusion on whether MUA remains within the scope of
practice in Texas.
Acupuncture
Acupuncture has long been part of the practice of chiropractic,
and the practice of acupuncture by chiropractors has been
authorized since the Legislature amended the Acupuncture
Act in 1997 to allow chiropractors and other health care prac-
titioners 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 Chiro-
practic Examiners offers a national standardized certification
examination in acupuncture. Consequently, the Board finds that
acupuncture is within the scope of practice of chiropractic in
Texas.
FURTHER RULEMAKING
As a result of the public comments received on the proposed
rule, the Board has decided that further rulemaking is required
to develop definitions to more clearly describe the scope of prac-
tice of chiropractic. Because the proposed definitions were not
included in the proposed rule and because the Board believes
that these definitions would benefit from the deliberation pro-
vided by public review and comment, the definitions will be set
out as proposed amendments to this rule following the conclu-
sion of this rulemaking. In addition, the Board anticipates that
additional rulemaking will be required in the future in response to
questions regarding the scope of practice of chiropractic and as
the Board's experience with implementation of this rule will likely
illuminate the need to further clarify and delineate the scope of
practice of chiropractic.

COMMENTS ON THE PROPOSED RULE
The following entities either submitted written comment on the
proposed rule or oral testimony at the public hearing on Feb-
ruary 1, 2006: Blue Cross Blue Shield of Texas; Walter T. Br-
zozowske, D.C.; Michele M. Doone, D.C.; NCMIC Insurance
Company; Parker Chiropractic College; Chester Y. Smith, D.C.;
Michael Stelzer, D.C.; Texas Association of Acupuncture & Ori-
ental Medicine; Texas Chiropractic Association; Texas Chiro-
practic College; Texas Dietetic Association; Texas Medical As-
sociation; Texas Medical Board; Texas Mutual Insurance Com-
pany; Texas Orthopaedic Association, Texas Neurological So-
ciety; Texas Physical Therapy Association; Texas State Board
of Acupuncture Examiners; Harold Tondera, D.C.; and Cynthia
Vaughn, D.C.
General Comments
One entity commented that the proposed rule did not satisfy the
legislative mandate because it did not clarify what activities are
included within the scope of practice and what activities are out-
side the scope of practice. The entity stressed that describing
an act as not within the scope of chiropractic if it is "inconsistent
with the practice of chiropractic" did not clarify what activities are
proscribed. It merely substitutes one generality for another. The
Board disagrees. This scope of practice rule includes six sub-
sections. Three of the subsections set out specific aspects of
practice relating to examination and evaluation; analysis, opin-
ion, and diagnosis; and treatment procedures and services. The
last paragraph of each of these subsections describes aspects of
practice outside of the scope of practice, including other aspects
that are inconsistent with the aspects described in each subsec-
tion. For example, if a treatment procedure and service, such
as using a cold or low-level light laser for cosmetic purposes, is
inconsistent with the practice of chiropractic and the treatment
procedures and services described under Subsection (e) of this
rule, then the treatment procedure and service is outside of the
scope of practice. No change was made in response to this com-
ment.
One entity said that while the Board proposed detailed expan-
sions of the scope of practice of chiropractic, it only reiterated
the statutory limitations on the scope of practice. The entity saw
that the mandate of the Legislature through Sunset Review re-
quired an equal amount of consideration and exposition on the
limitations of chiropractic. The commenter has misinterpreted
the Board's intent and objectives as well as the structure of this
rule. The scope of practice rule was developed to clarify what ac-
tivities are within the scope of practice. The rule does not expand
the scope of practice but only clarifies the existing and traditional
practice of chiropractic as authorized under the Chiropractic Act.
In order to be within the scope of practice, any activity must re-
late to the practices described under Texas Occupations Code
201.002(b), also set forth at 75.17(a)(1), and must not include
any of the activities proscribed under 201.002(c) of the Act and
as set forth under 75.17(a)(2) and (3) and should be consistent
with the activities described under 75.17(c)(1) and (2), (d)(1),
and (e)(1) and (2). No change was made in response to this
comment.
One commenter criticized the omission of the specialties in the
practice of chiropractic and requested that the scope of prac-
tice under these specialties should be listed and expanded to
support these specialties. The Board is considering whether to
recognize chiropractic specialties. While such specialties may
be the subject of a future rulemaking, the Board does not plan

ADOPTED RULES     June 2, 2006 31 TexReg 4615