NOT REQUIRED READING BUT AN INTERESTING CASE THAT HELD THAT AN ADMINISTRATIVE AGENCY (PODIATRIC BOARD) EXCEEDED ITS RULE MAKING AUTHORITY BY INCLUDING TIBIA AND FIBULA IN ITS TREATMENT JURISDICTION.
BOLD added by Island Court
TEXAS ORTHOPAEDIC ASSN. V. TEXAS BRD. PODIATRIC
Court of Appeals, Texas
May 23, 2008
OPINION
Our opinion and judgment issued on March 14, 2008, are withdrawn, and the following opinion is substituted.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.
BACKGROUND
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.
STANDARD OF REVIEW
On appeal, the appellants argue that the Board's promulgation of the Rule exceeded its rule-making authority. 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.).
DISCUSSION
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. 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.
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.
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.
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.
CONCLUSION
Having sustained appellants' sole
issue on appeal, we reverse the judgment of the district court and
render judgment that the Rule is invalid.
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