Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORNEY GENERAL
OF TEXAS
March 20, 1990
Honorable Brad Wright Opinion No. JM-1148
Chairman
Public Health Committee Re: Authority of the Board of
House of Representatives Chiropractic Examiners to condi-
P. 0. Box 2910 tion eligibility for licensure
Austin, Texas 78769-2910 on graduation from a college
accredited by a particular pri-
vate organization (RQ-1811)
Dear Representative Wright:
You ask about the validity of a rule adopted by the
Board of Chiropractic Examiners that defines the term "bona
fide reputable chiropractic school."
The regulatory statute governing chiropractors is
article 451233, V.T.C.S. That act requires that applicants
for licensure by examination be graduates of "bona fide
reputable chiropractic schools (whose.entrance requirements
and course of instruction are as high as those of the better
.class of chiropractic schools in the United States)."1
V.T.C.S. art. 451233, § 10(a). The board has adopted the
following rule regarding chiropractic schools:
(a) The board shall annually review and
approve those chiropractic schools whose
graduates are eligible for examination and
licensure under the provisions of Texas Civil
Statutes Article 4512b, 5 10.
(b) A bona fide reputable, chiropractic
school as that term is used in the
Chiropractic Act, 0 10, is a school which
1. After October 1, 1990, applicants for licensure by
examination will include final semester students, as well as
graduates, of bona fide reputable chiropractic schools.
Acts 1989, 71st beg., ch. 363, 5 5, at 1450 (effective Oct.
F- 1, 1990).
P. 6061
Honorable Brad Wright - Page 2 (JM-1148)
’
either holds candidate status or is ac-
credited by the Council on Chiropractic
Education.
22 T.A.C. S 71.5.
You ask whether the board has authority to limit the
term "bona fide reputable chiropractic school" to schools
accredited by the Council on Chiropractic Education and
thereby to exclude schools accredited b the Straight
Chiropractic Academic Standards Association. 3
The board‘s refusal to recognize schools of l@straightt'
chiropractic as bona fide reputable schools of chiropractic
has generated controversy in the past. In 1984, the Austin
Court of Appeals considered whether the board had denied due
process of law in the manner in which it determined that an
applicant, who had graduated from a school of "straight"
chiropractic, had not graduated from a bona fide, reputable
school of chiropractic. Wadden
Examiners, 663 S.W.2d 622 (Tex. APP. - Austin 1984, writ
ref'd n.r.e.). The controversy arose when the board
responded to Madden's request for an application by
informing Madden that he was ineligible for licensure
because he had not attended a bona, fide, reputable school of
chiropractic. The board's rule at the time of Madden's
request provided:
All applicants for licensure -who have
matriculated in a chiropractic college after
October 1, 1975 must present evidence of
having graduated from a chiropractic college
having status [sic] with the accrediting
commission of the Council on Chiropractic
Education or the equivalent thereof.
See id. at 624. Litigation ensued and eventually led to a
hearing in which the board issued the following order:
1. A chiropractic college must either show
accreditation by an accrediting body viewed
2. For an explanation of the distinction between
t'straight'tchiropractic and "mixer" chiropractic, see Madden
v. e.
T s, 663 S.W.2d 622 (Tex.
APP. - Austin 1984, writ ref8d z.r.e.1.
P. 6062
Honorable Brad Wright - Page 3 (JM-1148)
as reliable by the Board or show a valid
reason why such accreditation cannot be
obtained and otherwise give proof of
reputable status in order to be a bona fide
and reputable school for the purposes of
Section 10, Article 451213, V.A.C.S.
2. Sherman College of Straight Chiropractic
located in Spartanburg, South Carolina, is
not a bona fide reputable school as that term
is used in Section 10, Article 4512b,
V.A.C.S., and defined by the Board, and
therefore, it is ORDERED that David Madden a
Sherman College graduate, is not eligible to
sit for the state board examination.
Seeaid. at 624-25. After that hearing, Madden continued
lltlgation against the board, claiming that he had again
been denied due process. The Austin Court of Appeals
agreed, stating that although the board was free to announce
a new definition of‘ "bona fide reputable school of
chiropractic" in an adjudicative hearing, Madden was
entitled to know before a hearing the standards that would =
C control his case. Id. at 626. Mr. Madden's case was
remanded to the board .for final resolution not inconsistent
with the court's opinion. & at 627.
In the meantime, the Board of Chiropractic Examiners
promulgated its current rule, which defines bona fide,
reputable chiropractic school as a schools that holds
candidate status or is accredited by the Council on
Chiropractic Education. Tex . Bd. of Chiropractic Examiners,
9 Tex. Reg. 5199 (1984) (codified at 22 T.A.C. 5 71.5).
Apparently none of the issues raised in the litigation with
Mr. Madden persuaded the board that schools of straight
chiropractic were bona fide, reputable schools of
chiropractic for purposes of article 4512b, V.T.C.S.
You have raised the issue because the United States
Department of Education has determined the Straight
Chiropractic Academic Standards Association to be
nationally recognized accrediting association for purpose:
of section 1141(a) of title 20 of the United States Code.
"Accreditation of postsecondary institutions
postsecondary programs by agencies recognized by t::
Secretary [of Education] is a prerequisite to eligibility
for many types of Federal financial assistance for those
institutions or programs and for the students enrolled in
P. those institutions or programs." 34 C.F.R. 0 602.1(b)
(1988); see senerally 34 C.F.R. Parts 602, 603 (Secretary's
P. 6063
Honorable Brad Wright - Page 4 (JM-1148)
Procedures and Criteria for Recognition of Accrediting
Agencies) .
The legislature has delegated to the Board of
Chiropractic Examiners the responsibility for determining
what constitutes a bona fide, reputable school of
chiropractic. Because we cannot make fact findings in the
opinions process, we cannot assess whether the board's rule
defining bona fide, reputable school of chiropractic is too
broad or too narrow. The fact that the United States
Department of Education has found the Straight Chiropractic
Academic Standards Association to be a nationally recognized
accrediting association for certain federal iaw purposes
does not by itself require the Board of Chiropractic
Examiners to recognize schools accredited by the Straight
Chiropractic Academic Standards Association as a bona fide,
reputable school of chiropractic for purposes of Texas law.
SUMMARY
The fact alone that the United States
Department of Education has found the e
Straight Chiropractic Academic Standards
Association to be a nationally recognized
accrediting association for certain federal
law purposes does not require the Board of
Chiropractic Examiners to recognize schools
accredited by the Straight Chiropractic
Academic Standards Association as a bona
fide, reputable school of chiropractic for
purposes of Texas law.
JIM MATTOX
Attorney General of Texas
MARYEELLER
First Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
P. 6064
Honorable Brad Wright - Page 5 (JM-1148)
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
C
P. 6065