Thursday, November 24, 2011

HICKS v ARKANSAS MEDICAL BOARD - Administrative Agency Power - Uses and Abuses

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1.  Rule Making by Administrative Agencies
2.  Limits of power of agencies
3.  Hicks case - REQUIRED READING
4.  Texas Podiatrists vs. Orthopedists

Administrative agencies are created by the legislature to take care of specific governmental duties.  At the state level, the Board of Medicine is an agency that licenses, regulates and disciplines physicians.  On the other hand, the Food and Drug Administration (FDA) is one of many federal administrative agencies.

Although the legislative power [the power to create laws] rests with the state legislature at the state level and the federal legislature (Congress) at the federal level, when a legislature creates an administrative agency it will often give that agency limited rule making authority.  Administrative regulations adopted by and administrative agency generally have the force of law.
However, it is not uncommon for an agency to adopt a regulation that goes beyond the authority granted to it by the legislature.  In that event, the regulation can be challenged in court.

In the Hicks case, the Arkansas Board of Medicine adopted a regulation describing cosmetic ear piercing as 'surgery' and bringing all persons who did ear piercing under the control of the Board of Medicine and subject to their control and discipline.  Edna Hicks, doing business as The Beauty Box, challenged the Board of Medicine in court.  She lost in the lower courts, but won on appeal.   The Arkansas Board of medicine had exceeded its authority.

The Hicks case follows below.  When reading it, take note of the line of reasoning adopted by the court, but also take notice of the fact that the court draws on dictionary definitions of 'surgery' and also uses a prior case of its own for the definition of 'surgery'.  Note, as well, that the court looks to cases in other states (persuasive precedents) to help guide it to its final decision.

Following the Hicks case there is a link to a Texas case in which a rule adopted by one state agency, the Board of Podiatry, is challenged by other agencies.  The dispute in that case centered on the Podiatrists' attempt to claim that the ankle is a part of the foot and therefore something that can be treated by podiatrists.  Physicians disagreed, claiming they owned the ankle for treatment purposes.  The physicians prevailed. 


260 Ark. 31, 537 S.W.2d 794 (Ark. 06/21/1976)
 Supreme Court of Arkansas
June 21, 1976




 The opinion of the court was delivered by: Elsijane T. Roy, Justice.

Appellant Edna Hicks, a licensed cosmetician, desired to offer ear piercing as a service to her customers. She filed a petition with the Arkansas State Medical Board (hereafter Board) requesting a declaratory ruling that the piercing of ears was not within the definition of the practice of medicine or surgery. On June 12, 1975, the Board after a hearing decided that ear piercing was encompassed in the phrase "the practice of medicine" as defined in Ark. Stat. Ann. 72-604 (Repl. 1964). The circuit court affirmed the decision of the Board and from that affirmation comes this appeal.
Appellant first urges that "the findings, conclusions and decision of the Board,
affirmed by the circuit court, are based upon an error of law." Ark. Stat. Ann. 72-604(1) provides:
(1) The term "practice of medicine" shall mean:

(a) holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate or prevent any human disease, ailment, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical or other means whatsoever;
(b) suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever;
(c) the maintenance of an office, or other place to meet persons, for the purpose of examining or treating persons afflicted with disease, injury or defect of body or mind;
(d) using the title M.D., M.B., Physician, Surgeon, or any word or abbreviation to indicate or induce others to believe that one is engaged in the diagnosis or treatment of persons afflicted with disease, injury or defect of body or mind, except as otherwise expressly permitted by the laws of this state now or hereafter enacted relating to the practice of any limited field of the healing arts; or
(e) performing any kind of surgical operation upon a human being. If any person who does not possess a valid license to practice medicine within this state and who shall not be exempted from the licensing requirements hereunder, shall do any of the acts hereinabove mentioned as constituting the practice of medicine, shall be deemed to be practicing medicine without complying with the provisions of this Act
and in violation thereof.

      We consider the issue raised in this case to be primarily a question of interpretation of the definitional aspects of the statute rather than a question of fact. The testimony of the two doctors at the Board hearing dealt mainly with possible adverse effects from the ear piercing procedure if not properly carried out. However, the Board after its hearing noted that it had ". . . consistently interpreted the practice of surgery as contained in the Arkansas Medical Practices Act as being the penetration of the epidermis by mechanical instruments or appliances. . . ," and would include the procedure of ear piercing.
At the Board hearing a copy of an advisory opinion issued by the attorney general was introduced. The opinion, relying upon Subsection (e) of 72-604(1), supra, determined that ear piercing was a surgical procedure within the intendment of this subsection and thus could be performed only by a licensed physician or other qualified person acting under physician supervision. The Board premised its determination of the issue to a large extent on the attorney general's opinion.

The opinions of executive agencies are not, of course, binding upon the court, but are held to some extent persuasive. In Shivers, et al v. Moon Distributors, Inc., et al, 223 Ark. 371, 265 S.W.2d 947 (1954), we said:
* * * Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court.
We cannot agree with the interpretation placed on the statute by the attorney general and the Board. In interpreting statutes ". . . we give words their ordinary and usually accepted meaning in common language [citations omitted]," Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973); Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962), and avoid resort to ". . . subtle and forced construction for the purpose of limiting or extending the meaning [citation omitted]," Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W.2d 881 (1965).

      "Surgery" is a word which, commonly defined, embraces a more complex procedure than the relatively simple technique used in piercing ears.

Webster's New International Dictionary, 2nd Ed., defines surgery as:  That branch of medical science, art, and practice, which is concerned with the correction of deformities and defects, the repair of injuries, the diagnosis and cure of diseases, the relief of suffering, and the prolongation of life, by manual and instrumental operations.
 Black's Law Dictionary, Revised 4th Ed., 1968, defines surgery as: The art or practice of healing by manual operation; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries.

     To the same effect see Random House Dictionary of the English Language, 1966 Ed., and Maloy's Medical Dictionary for Lawyers. It follows that when we accord the word "surgery" its most commonly accepted definition such definition excludes the process here under review.
We noted in Aetna Life Ins. Co. & Pacific Mutual Life Ins. Co. v. Orr, 205 Ark. 566, 169 S.W.2d 651 (1943), that: …[S]urgery is defined as: "That branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries."
The statutory language at issue herein denominates as the practice of medicine the representation to the public by an individual of those skills which can aid in the palliation or prevention of ". . . any human disease, ailment, injury, deformity, or physical or mental condition . . ." by various methods including surgery.
The case of People v. Lehrman, 251 App. Div. 451, 296 N.Y.S. 580 (N.Y. App. Div. 1937), construed the statutory words "practice of medicine" as related to electrolysis for hair removal. This process involved the penetration of the skin with an electrically charged needle. The court held that the definition in the statute in Lehrman (basically analogous to our own) was never meant to include the process questioned, and the court stated:  Practices such as this have always been held to be matters of personal taste and adornment and not connected with the practice of medicine.
Ear piercing is a simple physical change effected solely to facilitate the wearing of ear ornamentation. It is an uncomplicated penetration of the skin and tissue of the ear lobe by a sharp instrument. The procedure is not as serious as the normal anatomical change customarily wrought by surgery. It is not a corrective undertaking, nor one intended to accomplish a palliative objective. No transformation other than an opening in the ear lobe is created, and it is thus distinguishable from the more conspicuous alteration normal cosmetic surgery is intended to provide.
Although not controlling, we note that in Texas the attorney general, in interpreting a statute similar to our own, ruled that ear piercing did not constitute the practice of medicine. Other states, including Arizona, Virginia, Kansas, New Jersey, Georgia and California, have, through opinions rendered by their respective attorneys general or state medical boards, excluded the piercing of ears as a procedure to be found within the term "the practice of medicine." Appellee has not cited and our research has not disclosed any decisions to the contrary except the decision involved in this
We are not unmindful nor unconcerned about possible adverse effects from "uncontrolled ear piercing." However, we are not at liberty to declare, by judicial interpretation, a procedure "surgery" which is not encompassed by the legislative enactment under consideration.        Reversed.

[Note re 'Reversed':  The lower court's decision in favor of the Board of Medicine was reversed.]

The following case [linked] is suggested reading.  In it the Texas Board of Medicine (and others) sued the Texas Board of Podiatric Medical Examiners claiming that the legislature had not given the board of podiatry the authority to adopt an administrative regulation that included the ankle with the foot, broadening the scope of practice for podiatrists.  Physicians won on their claim that they got ankles and podiatrists needed to treat only feet under existing law.


TEXAS ORTHOPAEDIC ASSOCIATION, Texas Medical Association and Andrew M. Kant, M.D., Appellants 


TEXAS STATE BOARD OF PODIATRIC MEDICAL EXAMINERS;  Texas Podiatric Medical Association;  and Bruce A. Scudday, D.P.M., Appellees.

No. 03-05-00620-CV.

-- May 23, 2008

Before Justices B.A. SMITH, PURYEAR and WALDROP.

Susan Henricks, Hull, Henricks & MacRae, LLP, Donald P. Wilcox, Office of General Counsel, Texas Medical Association, Austin, for appellants.John F. Morehead, Robert E. Henneke, Assistant Attorneys General, General Litigation Division, Jennifer S. Riggs, Riggs & Aleshire, PC, Austin, for appellees.

Our opinion and judgment issued on March 14, 2008, are withdrawn, and the following opinion is substituted.
Various statutes over the years have described the practice of podiatry as the treatment of the foot, but the term “foot” has never been statutorily defined. [Emphasis added].  See, e.g., Tex. Occ.Code Ann. § 202.001(a)(4) (West 2004).   In 2001, the Texas State Board of Podiatric Medical Examiners (the “Board”) promulgated a rule defining the word “foot.”   See Tex. Occ.Code Ann. § 202.151 (West 2004) (authorizing Board to adopt rules governing practice of podiatry);  22 Tex. Admin. Code § 375.1(2) (2007) (defining foot) (the “Rule”).   The Rule included in its definition, among other things, portions of what in layman's terms is called the ankle.   In response, the Texas Orthopaedic Association, the Texas Medical Association, and Andrew M. Kant, M.D. (“appellants”) sought a declaration that the Rule impermissibly expanded the scope of podiatry.   The district court concluded that the Rule was valid and did not exceed the Board's authority.   The appellants appeal the judgment of the district court.   We will reverse the district court's judgment.

In general, the statutory provisions governing the medical treatment and diagnosis of diseases and disorders of the human body and the individuals authorized to engage in those practices are found in the Medical Practice Act. See Tex. Occ.Code Ann. §§ 151.001-165.160 (West 2004 & Supp.2007).   Although the Act requires compliance with its provisions to practice medicine, see id. § 155.001 (West 2004), the Act exempts certain individuals from compliance, id. § 151.052 (West 2004).   The exemption relevant in this case is found in subsection 151.052(a)(5) and exempts “a licensed podiatrist engaged strictly in the practice of podiatry as defined by law.”   Id. § 151.052(a)(5) (emphasis added).   By providing the exemption, the legislature acknowledged that there is some degree of overlap between podiatrists' and physicians' scopes of practice.
The practice of podiatry in Texas has been governed by statute since 1923.   At that time, podiatrists were referred to as chiropodists, and chiropody was defined as “the diagnosis, medical and surgical treatment of ailments of the human foot.”   Act of March 6, 1923, 38th Leg., R.S., ch. 169, § 1, 1923 Tex. Gen. Laws 357, 357-60.   In 1951, the statute was amended and defined chiropody, in relevant part, as the treatment of “any disease or disorder, physical injury or deformity, or ailment of the human foot, by any system or method.”   See Act of April 18, 1951, 52nd Leg., R.S., ch. 132, § 1, 1951 Tex. Gen. Laws 219, 219.   In 1967, the legislature renamed chiropodists as podiatrists.   See Act of April 12, 1967, 60th Leg., R.S., ch. 96, §§ 1, 2, 1967 Tex. Gen. Laws 181, 181-82.   The current statute provides, in relevant part, that podiatry “means the treatment of or offer to treat any disease, disorder, physical injury, deformity, or ailment of the human foot by any system or method.   The term includes podiatric medicine.”  Tex. Occ.Code Ann. § 202.001(a)(4);  see Senate Comm. on Health & Human Services, Bill Analysis, Tex. S.B. 673, 74th Leg., R.S. (1995) (stating that changes were made to statute governing podiatry because former statutes contained “antiquated and limiting language”).
Pursuant to statutory authority, the Board announced in 2000 that it intended to adopt an administrative rule defining the term “foot.”   See Tex. Occ.Code Ann. § 202.151(2) (“The board shall adopt reasonable or necessary rules and bylaws consistent with the law regulating the practice of podiatry, the law of this state, and the law of the United States to govern:  ․ (2) the regulation of the practice of podiatry”);  see also id. § 202.051 (West Supp.2007) (detailing requirements for Board membership).   In describing the need for the definition, the Board stated that there was “uncertainty among various groups resulting from the lack of a definition” and that, without a definition, podiatrists, insurance companies, and hospitals were uncertain as to the limit of the practice of podiatry.   See 26 Tex. Reg. 2385, 2385 (March 23, 2001).   After receiving comments regarding the proposed definition, including objections from the Texas Orthopaedic Association and the Texas Medical Association, the Board adopted the Rule in 2001.   See 22 Tex. Admin. Code § 375.1(2);  26 Tex. Reg. at 2390.   The Rule provides as follows:
The foot is the tibia and fibula in their articulation with the talus, and all bones to the toes, inclusive of all soft tissues (muscles, nerves, vascular structures, tendons, ligaments and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus and all bones to the toes.
The tibia is “the shin bone” or “the inner and larger bone of the leg below the knee.”   Dorland's Illustrated Medical Dictionary 1911 (30th ed.2003).   The fibula is “the outer and smaller of the two bones of the leg.”  Id. at 698.   The talus is “the highest of the tarsal bones and the one that articulates with the tibia and fibula to form the ankle joint” and is also called the ankle.   Id. at 1853;  see also id. at 1855 (explaining that tarsus is “the region of the articulation between the foot and the leg”).
In response to concerns regarding the validity of the Rule, the attorney general issued an opinion stating that the Rule was invalid because it impermissibly expanded the practice of podiatry to the extent that it allowed podiatrists to treat the tibia and fibula.  [Emphasis added].  See Tex. Att'y Gen. Op. No. JC-441 (2001).   The attorney general reasoned that the tibia and fibula are leg bones, not bones of the foot, and, therefore, outside the scope of podiatry.   See id.   Shortly after the attorney general opinion was released, the appellants filed a declaratory judgment action, asking the district court to determine the validity of the Rule. See Tex. Gov't Code Ann. § 2001.038 (West 2000) (allowing plaintiff to seek declaration regarding validity of rule);  Tex. Civ. Prac. & Rem.Code Ann. § 37.001-.011 (West 1997 & Supp.2007) (Uniform Declaratory Judgment Act).   The Texas Podiatric Medical Association and Bruce A. Scudday (cumulatively “the Association”) intervened.
The district court declared that the Rule was valid and did not exceed the Board's statutory authority.   The appellants appeal the judgment of the district court.1

 On appeal, the appellants argue that the Board's promulgation of the Rule exceeded its rule-making authority.2  As an agency, the Board is a creation of the legislature and, therefore, “has no inherent authority.”   See Public Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex.2001).   For this reason, the Board possesses only those powers “expressly conferred upon it.”   See id.   However, when conferring a power upon an agency, the legislature also “impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties,” see id., and the legislature is not required to include every specific detail or anticipate all unforeseen circumstances when enacting an agency's authorizing statute, State v. Public Util. Comm'n, 131 S.W.3d 314, 321 (Tex.App.-Austin 2004, pet. denied).
 An agency's construction of a statute that it is charged with enforcing is entitled “to serious consideration by reviewing courts, so long as that construction is reasonable and does not contradict the plain language of the statute.”  Employees Ret. Sys. v. Jones, 58 S.W.3d 148, 151 (Tex.App.-Austin 2001, no pet.). In other words, when determining whether an agency's rule is valid, we must ascertain whether the rule is contrary to the relevant governing statutes, Public Util. Comm'n, 131 S.W.3d at 321, or whether the rule is in harmony with the general objectives of the statutes involved, see Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex.App.-Austin 2004, pet. dism'd w.o.j.).   If a promulgated rule has no supporting statutory authority, the rule is void.  Office of Pub. Util. Counsel. v. Public Util. Comm'n, 104 S.W.3d 225, 232 (Tex.App.-Austin 2003, no pet.).
 To properly perform this function, we must ascertain the legislature's intent in enacting the relevant governing statutes.   See Texas Workers' Comp. Comm'n v. Patient Advocates of Tex., 136 S.W.3d 643, 652 (Tex.2004).   Although the legislature has specified other tools to guide us when determining their intent, see Tex. Gov't Code Ann. § 311.023 (West 2005), our determination begins with the plain language of the statutes involved, Bragg v. Edwards Aquifer Auth., 71 S.W.3d 729, 734 (Tex.2002).   See Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex.2000) (providing that to determine legislative intent, courts should look to plain meaning of words used in relevant statutory provisions).   In performing our analysis, we review the entire statute, not isolated portions, Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex.2000), and we must presume that every word was deliberately chosen and that excluded words were left out purposely, USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex.App.-Austin 2004, pet. denied).   We should not adopt a construction of a statute that will render the statute meaningless or lead to absurd results.  Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999);  Watts v. City of Houston, 126 S.W.3d 97, 100 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

  On appeal, the appellants contend that the district court erred when it concluded that the Board's enactment of the Rule was a valid exercise of the agency's rule-making authority.   On the contrary, appellants assert that the Rule impermissibly expands the practice of podiatry beyond the treatment of the foot.
In response, the Association contends that in making their claims, the appellants improperly focus on the phrase “foot” found in the statutory definition of podiatry rather than reading and giving meaning to every word found in the definition.   See Tex. Occ.Code Ann. § 202.001(a)(4).   In particular, the Association contends that the definition does not state that podiatrists may only treat the foot;  on the contrary, it emphasizes that the provision allows podiatrists to treat the foot “by any system or method” and that “podiatry” includes everything constituting “podiatric medicine.”  Id. The Board makes similar arguments.   In particular, it asserts that by including the term “podiatric medicine” in its definition, the legislature incorporated into the definition of podiatry all of the procedures podiatrists were actually performing at the time the statute was enacted.
In support of this interpretation of the statutory structure, the Board introduced during trial evidence demonstrating that for several decades, podiatrists have been treating the ankle.   For example, several podiatrists testified that they were trained to perform both surgical and nonsurgical procedures on the ankle during their residencies, and the Board presented evidence that various podiatry books written over the past 80 years have included sections on treating the ankle.   In addition, several podiatrists testified that they have been granted privileges by various hospitals to perform ankle surgeries and that when they performed ankle procedures, they were reimbursed by insurance companies, Medicare, and Medicaid.   Further, several podiatrists testified that the practice of podiatry has always included treatment of the ankle and that the Board's definition is consistent with that practice and did not increase or decrease the scope of the practice.
In addition, the Association contends that the Rule is consistent with the medical definition of the term “foot,” which it asserts includes the ankle.3  See Tex. Gov't Code Ann. § 311.011 (West 2005) (requiring courts to construe “[w]ords and phrases that have acquired a technical or particular meaning” in accordance with that meaning);  Lloyd A. Fry Roofing Co. v. State, 541 S.W.2d 639, 642-43 (Tex.Civ.App.-Dallas 1976, writ ref'd n.r.e.) (explaining that when statutory term has technical meaning, court will look to particular art, science, or trade from which it was taken to ascertain its meaning).   Furthermore, the Association argues that by promulgating the Rule, the Board was following the statutory directive to utilize its expertise and promulgate reasonable and necessary rules to govern the practice of podiatry.   See Tex. Occ.Code Ann. § 202.151(2).   In addition, it insists that an interpretation limiting the scope of practice of podiatry to the area below the ankle bones and joint would lead to absurd results, including prohibiting podiatrists from treating a sprained ankle.
We disagree with the Board and the Association.   All of their arguments are couched on the premise that the Rule merely authorizes podiatrists to treat the foot and the ankle and that the Rule is, therefore, consistent with the scope of podiatric medicine.   However, there is no language in the Rule limiting the foot to that portion of the body that is at or below the ankle.   On the contrary, the terms of the Rule authorize podiatrists to treat parts of the body that are well above the ankle.
The Rule states that the “foot” includes “all soft tissues (muscles, nerves, vascular structures, tendons, ligaments and any other anatomical structures) that insert into the tibia and fibula in their articulation with the talus.”   22 Tex. Admin. Code § 375.1(2).   However, many of the soft tissues included in this definition are not part of the foot or even the ankle.   For example, various nerves ending in the foot-including the tibial nerve, the peroneal nerve, and the sural nerve-run along significant portions of the leg before reaching a termination point in the foot.   See Frank H. Netter, N.D., Atlas of Human Anatomy 482, 483, 485, 504 (2nd ed.1997).   Similarly, several veins and arteries-including the saphenous vein and the tibial artery and vein-also end in the foot after having traversed significant portions of the leg.  Id. at 477, 482, 483, 508.   In fact, one of the nerves and one of the veins previously mentioned run along the entire length of the leg.
Because there is no language limiting the permissible area of treatment for these soft tissues, the Rule authorizes podiatrists to treat these anatomical features wherever they may be located in the body and to treat “any disease, disorder, physical injury, deformity, or ailment” of these features because they have been defined as being part of the foot.   See Tex. Occ.Code Ann. § 202.001(a)(4).   Moreover, because the occupations code allows podiatrists to treat the foot “by any system or method,” the Rule effectively authorizes podiatrists to treat these body parts by utilizing procedures that are outside the scope of their training.4  See id. § 202.001(a)(4);  see also id. § 202.254 (specifying that to obtain license to practice podiatry, applicant must pass examination covering ailments of the foot ) (emphasis added).   As a result, the Rule authorizes podiatrists to treat parts of the body outside the traditional scope of podiatry without satisfying the requirements of the Medical Practice Act. See id. §§ 155.001-.152 (detailing requirements for obtaining license to practice medicine).   This authorization exceeds the limited exemption given to podiatrists and would constitute the unauthorized practice of medicine.   See id. §§ 151.052(a)(5), 155.001.5
For all these reasons, we conclude that the Rule is not in harmony with the general objectives of the various statutes involved and that the Board exceeded its authority by promulgating the Rule.6
  As an alternative basis to support the district court's judgment, the Association contends that the judgment should be affirmed because the appellants “failed to meet their burden of proof” regarding the Rule's alleged invalidity.   In making this assertion, it notes that agency rules are presumed to be valid and that the challenging party has the burden of proving that the rule is invalid. TXU Generation Co. v. Public Util. Comm'n, 165 S.W.3d 821, 829 (Tex.App.-Austin 2005, no pet.).   In light of this proposition, the Association contends that the appellants failed to meet this burden because they failed to dispute the basis for the Rule set out in the Board's reasoned justification.   See Tex. Gov't Code Ann. §§ 2001.033 (West 2000) (mandating that agency order adopting rule must contain “a reasoned justification for the rule as adopted”), .035(b) (detailing two-year deadline for attacking rule);  see also id. § 2001.035(a) (West 2000) (stating that agency rule is voidable if agency adopts rule without substantially complying with various statutory requirements including need for reasoned justification).   Stated differently, the Association argues that by detailing a reasoned justification for a rule, an agency establishes a presumption that the rule is valid and in harmony with the relevant statutory requirements and that a party dissatisfied with the rule has the burden of attacking the justification and rebutting the presumption within two years of the rule's promulgation.   Further, the Association contends that the presumption of validity extends to the factual basis found in an agency's reasoned justification and that this presumption must be rebutted for any challenge to a rule to be successful.   Moreover, it argues that the validity of the reasoned justification may only be overcome if the challenging party shows and convinces a court that the justification is “illogical, arbitrary or demonstrates an improper interpretation of the scope of [the agency's] statutory authority.”
We disagree with these contentions.   It is true that the government code does specify certain requirements that an agency must comply with when promulgating a rule, including the requirement that an order contain a reasoned justification for the rule.   See Tex. Gov't Code Ann. §§ 2001.023-.034 (West 2000).   It is also true that the government code allows a person to contest a rule on the ground that the agency promulgating the rule did not comply with those procedural requirements.  Id. § 2001.035.
 However, the government code also authorizes a party to contest either the validity or applicability of a rule by filing a declaratory judgment action.  Id. § 2001.038. This provision allows a party to contest the rule if the party alleges that the rule “impairs, or threatens to interfere with or impair, a legal right or privilege” of the party.  Id. The provision imposes no requirement that a party must contest the factual basis of an agency's reasoned justification as a condition to disputing the validity of the rule, and we see no reason to impose this type of requirement on our own.   Although consideration of the reasoned justification may be relevant in certain declaratory actions, a determination of whether the factual basis supporting the justification is proper will not necessarily address whether the agency's rule is consistent with relevant statutory language or whether the agency had the authority to issue the rule.
 Finally, the Board and the Association contend that the legislature has ratified or adopted the Board's definition of the term foot through subsequent actions.   First, the Board and the Association contend that the legislature has adopted the Board's definition and that, therefore, the Rule is consistent with the occupations code.   The doctrine of legislative acceptance provides that if “an ambiguous statute that has been ․ given a longstanding construction by a proper administrative officer is re-enacted without substantial change, the Legislature is presumed to have been familiar with that interpretation and to have adopted it.”  Texas Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176 (Tex.2004).   In making their claim that the legislative acceptance doctrine applies, the Board and the Association note that although two different amendments to the relevant provisions of the occupations code were proposed in the legislature, neither of these proposals left the committee, and therefore, the legislature has acquiesced to the Board's interpretation.
Second, although acknowledging that their argument differs from a typical ratification argument, the Board notes that after the Rule was promulgated and after appellants first expressed dissatisfaction with the Rule, the legislature continued to compensate podiatrists through Medicaid payments for procedures performed on the ankle.
 We disagree.   First, we do not believe that the legislative acceptance doctrine applies under the circumstances of this case.   The legislature did not reenact section 202.001 after the Rule was promulgated-a prerequisite to proper utilization of the doctrine.   Moreover, what little evidence there is regarding the legislature's belief about the scope of podiatry undermines the Board and the Association's suggestion that the legislature has adopted the construction found in the Rule or that the limits of the scope are well settled.   After the Rule was promulgated, two contradictory amendments to the statutory definition of podiatry were proposed.   The first proposed amendment was made in 2003 and was directly contrary to the Rule because it would have limited the term “foot” to the part of the body found below the ankle.   Tex. S.B. 1395, 78th Leg., R.S. (2003).  However, the second proposal, which was made in 2005, would have included treatment of the ankle within the definition of podiatry.   Tex. S.B. 460, 79th Leg., R.S. (2005).  Furthermore, the legislative acceptance doctrine cannot be utilized as support for the construction of a statute that is contrary to the language of the governing statutes, see Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 282 (Tex.1999), and we have already concluded that the Rule is inconsistent with the occupations code in that it allows podiatrists to perform treatment outside their scope of practice-it allows podiatrists to treat areas of the body other than the foot.7
Second, whether the legislature continued to compensate podiatrists through the Medicaid program for treatments performed on the ankle after the Rule was promulgated seems to have no bearing on our ultimate conclusion.   As discussed previously, the Rule authorizes treatment of body parts that are above the ankle.
For all the reasons given, we conclude that the Board exceeded its authority when it promulgated the Rule and that the Rule is invalid.   Therefore, we sustain the appellants' issue on appeal.

Having sustained appellants' sole issue on appeal, we reverse the judgment of the district court and render judgment that the Rule is invalid.

1 comment:

  1. Hi,

    A great article indeed and a very detailed, realistic and superb analysis, of this issue, very nice write up, Thanks.

    Robert Tomlinson MD