Can a physical therapist in Texas perform needle EMG testing?

Plain-English summary

Needle electromyography (EMG) is a test that uses a fine needle electrode to measure the electrical activity of muscles and nerves. The Texas State Board of Medical Examiners asked the Attorney General a set of questions about who may perform it: whether it is the practice of medicine, whether it falls within a physical therapist's scope of practice, which agency regulates it, and what the limits on each board's rulemaking are. The questions grew out of a dispute over whether the procedure requires specialized medical training and whether it always involves a diagnosis.

The Attorney General drew a clear line at the start: the technical and factual questions, including whether EMG is inherently diagnostic, belong to the boards with the expertise to answer them, and his office would defer to their informed judgment. On the legal questions, he applied the familiar rule that an agency's reasonable interpretation of the statute it enforces gets deference. The Medical Practice Act defines the practice of medicine broadly, and it expressly gives the Board of Medical Examiners authority to determine whether an act is the practice of medicine. The board had resolved at its August 17, 1996 meeting that needle EMG is the practice of medicine and within a physician's scope, and the Attorney General found that decision reasonable.

He reached the same kind of answer for physical therapists. The Physical Therapy Act defines physical therapy to include "the testing and measurement of the function of the musculoskeletal, neurological, pulmonary and cardiovascular systems," and the Board of Physical Therapy Examiners had adopted a 1993 rule reading that language to include electromyography. Because that board enforces the Physical Therapy Act, its reasonable interpretation gets the same deference, and the Attorney General found its decision reasonable too. So the procedure sits within both professions' scopes at once.

That left the jurisdictional question. Each board regulates the procedure within its own profession: the Board of Medical Examiners over physicians, the Board of Physical Therapy Examiners over physical therapists. The Attorney General drew on his earlier Opinion DM-423, which had addressed the parallel overlap between medicine and podiatry, to explain that once the physical therapy board reasonably placed EMG within its scope, the Board of Medical Examiners could not regulate physical therapists doing it. The Medical Practice Act by its own terms does not apply to "duly licensed physical therapists who confine their activities or practice strictly to physical therapy." The practical upshot: neither board can write general rules for the procedure on its own; rules that reach across both professions would require the two boards to cooperate.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at the time

For physicians and the Board of Medical Examiners: The opinion accepted as reasonable the board's determination that needle EMG is the practice of medicine within a physician's scope, but held the board had no authority over physical therapists who perform EMG while confining their work strictly to physical therapy.

For physical therapists and the Board of Physical Therapy Examiners: The opinion accepted as reasonable the board's 1993 rule placing electromyography within the "testing and measurement" language of the Physical Therapy Act, so physical therapists practicing EMG were governed by that board's rules.

On overlapping regulation: The opinion treated the procedure as falling within both professions at once, meaning neither board could set general rules for it unilaterally; cross-profession rules would need both boards' cooperation.

Common questions

Is needle EMG considered the practice of medicine in Texas?

Under this opinion, the Board of Medical Examiners reasonably decided that it is, and the Attorney General deferred to that determination. The board had express statutory authority to decide whether an act is the practice of medicine, and it resolved that needle EMG qualifies.

So can a physical therapist still perform it?

The opinion concluded yes, the Board of Physical Therapy Examiners had reasonably placed electromyography within the "testing and measurement" definition of physical therapy by a 1993 rule. The Attorney General deferred to that reading as well, so the procedure fell within both professions' scopes.

Which board disciplines a physical therapist who performs EMG?

The Board of Physical Therapy Examiners. The opinion explained that the Medical Practice Act does not apply to physical therapists who confine their work strictly to physical therapy, so the Board of Medical Examiners had no regulatory authority over them in this respect.

Could one board write the rules for how EMG is done?

Not by itself. The opinion said the jurisdictional split is the main limit on each board's rulemaking, so general rules governing the procedure across both professions would require the cooperation of both boards.

Background and statutory framework

The request came from Bruce A. Levy, M.D., J.D., Executive Director of the Texas State Board of Medical Examiners. The Medical Practice Act (V.T.C.S. article 4495b) defines the practice of medicine in section 1.03(a)(12) to cover a person who publicly professes to be a physician or surgeon and diagnoses or treats any disease, disorder, deformity, or injury, or who does so and charges for it. Section 3.06(d)(1) gives the board authority to determine whether an act constitutes the practice of medicine, and the Attorney General had described the statutory definition as broad in Opinion DM-423 (1996). Acting under that authority, the board resolved on August 17, 1996 that needle EMG is the practice of medicine.

The Physical Therapy Act (V.T.C.S. article 4512e) defines physical therapy in section 1(1) to include "the testing and measurement of the function of the musculoskeletal, neurological, pulmonary and cardiovascular systems." Relying on that language, the Board of Physical Therapy Examiners adopted a 1993 rule (22 T.A.C. section 321.1) treating electromyography as within physical therapy, and section 2G of article 4512e charges that board with enforcing the act. The Attorney General gave the board's reading the same deference owed to the Medical Examiners' reading of the Medical Practice Act.

On jurisdiction, the opinion followed Opinion DM-423, which had addressed the overlap between medicine and podiatry and concluded that once the podiatry board reasonably classified a procedure as podiatry, the Board of Medical Examiners could not regulate licensed podiatrists doing it. Applying that here, and pointing to the Medical Practice Act's exemption for physical therapists who confine their work strictly to physical therapy (section 3.06(a)(7)), the opinion held the Board of Medical Examiners has no authority over physical therapists practicing EMG. A footnote added that whether EMG is "diagnostic" in any given case is a factual and technical question the Attorney General would not resolve, leaving it to the two boards. The result is concurrent regulation: each board over its own licensees, with joint rulemaking required for any cross-profession rule.

Citations

Statutes and rules

• Tex. Rev. Civ. Stat. Ann. art. 4495b (Medical Practice Act), §§ 1.03(a)(12), 3.06(d)(1), 3.06(a)(7)
• Tex. Rev. Civ. Stat. Ann. art. 4512e (Physical Therapy Act), §§ 1(1), 2G
• 22 T.A.C. § 321.1

Attorney General opinions

• Tex. Att'y Gen. Op. No. DM-423 (1996)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0443
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1997/dm0443.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 8, 1997

Bruce A. Levy, M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
P.O. Box 2018
Austin, Texas 78768-2018

Opinion No. DM-443

Re: Authority of a physical therapist to perform needle electromyography testing (RQ-928)

Dear Dr. Levy:

On behalf of the State Board of Medical Examiners (the "board"), you have asked this office a series of questions relating to the authority of a physical therapist to perform a procedure called needle electromyography. The questions arise, as we understand it, from a controversy as to whether this procedure requires specialized medical training, and as to whether such testing invariably involves a diagnosis of the sort which would constitute the practice of medicine. This office has and professes no skill in the technical questions which may be involved here, for the resolution of which we will defer to the board. Rather, we restrict ourselves to the legal questions involved. Here too we find the decision of the board at its August 17, 1996 meeting, a transcript of which has been provided to us, to be entitled to great weight.

You ask first whether the performance of needle electromyography is the practice of medicine, and falls within the scope of practice for licensed physicians. The practice of medicine is defined by V.T.C.S. article 4495b, section 1.03(a)(12), as follows:

A person shall be considered to be practicing medicine within this Act:

(A) who shall publicly profess to be a physician or surgeon and shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method or to effect cures thereof; or

(B) who shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method and to effect cures thereof and charge therefor, directly or indirectly, money or other compensation.

The statutory definition of the practice of medicine is a broad one, as this office has noted in the past. Attorney General Opinion DM-423 (1996) at 2. Moreover the board has express statutory authority to "determine whether or not an act constitutes the practice of medicine." Id. (citing V.T.C.S. art. 4495b, § 3.06(d)(1)). The board by a resolution adopted at its meeting on August 17, 1996, has so decided, and this office defers, as it customarily does, to a reasonable interpretation by a state agency of the statute it is charged to enforce. Accordingly, we answer your first two questions in the affirmative. The decision by the board that needle electromyography constitutes the practice of medicine and is within the scope of practice of a licensed physician is a reasonable one.

You next ask whether the practice of needle electromyography falls within the scope of practice of a licensed physical therapist. As you are aware, the Texas Board of Physical Therapy Examiners has taken the position that it does. The Board of Physical Therapy Examiners' position is based upon its interpretation of the definition of physical therapy in its enabling statute, which includes the following language: "Physical therapy includes the testing and measurement of the function of the musculoskeletal, neurological, pulmonary and cardiovascular systems . . . ." V.T.C.S. art. 4512e, § 1(1).

Based upon this interpretation, the Board of Physical Therapy examiners in 1993 adopted by rule a definition of physical therapy which includes the practice of electromyography. 22 T.A.C. § 321.1. In our view, the decision that electromyography is "testing and measurement" of the sort described in article 4512e, section 1(1) is not unreasonable. Under section 2G of article 4512e, the Board of Physical Therapy Examiners is charged with the enforcement of the Physical Therapy Act. Accordingly, its reasonable interpretation of that act is entitled to the same deference we give to your interpretation of the Medical Practice Act. Therefore we answer your third question in the affirmative as well. The decision by the Board of Physical Therapy Examiners that electromyography is within the scope of practice of a licensed physical therapist is a reasonable one.

You next ask which state agency or agencies have the authority to regulate such practice. Insofar as electromyography constitutes the practice of medicine, you have that authority. Insofar as electromyography is within the scope of practice of a licensed physical therapist, the Board of Physical Therapy Examiners has that authority. The question is directly analogous to one this office considered in Attorney General Opinion DM-423. In that opinion request, the board asked whether a particular procedure was within the practice of medicine, and whether it was within the practice of podiatry. We declined to answer whether the particular therapy constituted podiatry, noting that "the determination of what constitutes the practice of podiatry is the business of the Board of Podiatric Medical Examiners more than of this office." Attorney General Opinion DM-423 (1996) n.1 at 4. However, we further noted that if the relevant body did so decide, the Board of Medical Examiners could not regulate the activity of licensed podiatrists in that regard. Id. Here, the rule adopted by the Board of Physical Therapists is a clear and reasonable determination that electromyography is within the scope of practice of physical therapists. For that reason, and because by its terms the Medical Practice Act does not apply to "duly licensed physical therapists who confine their activities or practice strictly to physical therapy and who are not in violation of any law relating to physical therapy practice," the board has no regulatory authority over physical therapists practicing electromyography. V.T.C.S. art. 4495b, § 3.06(a)(7).

To answer your final question, the jurisdictional limit recited above would appear to be the principal limitation on your rule-making authority, and conversely on that of the Board of Physical Therapy Examiners as well. Accordingly, the development of any general rules regulating this activity would require the cooperation of both boards, and is not within the province of either board exclusively. Physical therapists would, in their practice, be governed by the rules of the Board of Physical Therapy Examiners, doctors by those of the Board of Medical Examiners.

[Footnote 1: The act further provides that "a license issued hereunder shall not authorize the diagnosis of diseases or the practice of medicine as defined by law." A brief submitted in response to this request suggests that electromyography is generally diagnostic. A determination of what constitutes diagnosis would, in our view, require expertise that this office does not purport to possess, as well as factual determinations of a sort that we cannot make in the opinion process. We defer here to the informed judgment of the Boards of Medical and Physical Therapy Examiners as to when and whether the practice is diagnostic.]

SUMMARY

The decision by the Board of Medical Examiners that needle electromyography constitutes the practice of medicine and is within the scope of practice of a licensed physician is a reasonable one. The decision by the Board of Physical Therapy Examiners that electromyography is within the scope of practice of a licensed physical therapist is a reasonable one. Insofar as electromyography constitutes the practice of medicine, the Board of Medical Examiners has the authority to regulate the activity. Insofar as electromyography is within the scope of practice of a licensed physical therapist, the Board of Physical Therapy Examiners has that authority. Accordingly, the development of any general rules regulating this activity would require the cooperation of both boards, and is not within the province of either board exclusively. Physical therapists would, in their practice, be governed by the rules of the Board of Physical Therapy Examiners, doctors by those of the Board of Medical Examiners.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General