The Current Unconstitutional Texas Medical Board Rule is a Discriminating Rule. It Is Unconstitutional and Must Be Abolished


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The Current Unconstitutional Texas Medical Board Rule is a Discriminating Rule.

It Is Unconstitutional and Must Be Abolished

(A Testimony in the Texas Sunset Advisory Commission) 12/15/2008
Mr. Chairman, Vice-Chairman, Director, and Honorable Sunset Advisory Commission members:
My name is Chung-Hwei Chernly, an NCCAOM (National Commission for the Certification of Acupuncture and Oriental Medicine) Board certified acupuncturist and Chinese Herbologist. I am a Texas Medical Board licensed acupuncturist and also one of the Texas Acupuncture Board Members appointed by Governor Rick Perry.
I want to take this opportunity to express my gratitude for the last 16 years, because of the Sunset Advisory Commission’s recommendation in 1992, the acupuncturists were finally allowed to practice legally in Texas. In 1994 a formal Texas Acupuncture Practice Bill was passed in the legislature and signed by the Governor to become a law. I believe that Texas citizens, especially the patients in Texas, very much appreciate the efforts of the Sunset Advisory Commission.

I thank you for giving me this opportunity today to share my personal view of the performance of the Texas Medical Board. The Enforcement Process, (page 7-9 of Sunset Study), seems to be good and Violations Eligible for Fast Track Complaint Resolution lists, (page 14 of Sunset study), seems to be good as well. The Texas Medical Board Rule is a good rule. However, with regard to Texas Medical Board Rules, Chapter 183.19 Acupuncture Advertising:

(c) Misleading or deceptive advertising, and, in addition, shall not engage in any of the following:

(1) hold themselves out as a physician or surgeon or any combination or derivative of those terms unless also licensed by the medical board as defined under the Medical practice Act, Tex. Code Ann. Chapter 151.002(a)(13) (relating to Definitions).

The current Texas Medical Rule is not a good rule. It needs to be changed.
The Texas Medical Board has been taking action, spending time and money to investigate and discipline the licensed acupuncturist(s) of Texas, for referring to themselves as doctors or physicians. If there a complaint is made, and the Medical Board voluntarily takes action to file the charge, we can expect more and more, tens or hundreds of acupuncturists to be investigated and disciplined over and over. And the government budget and tax payers’ valuable money will be wasted over and over as well. Furthermore the rules cause much harm to Texas citizens as well. The attached documentation can explain how the current Texas medical Rules would harm the Texas citizens (The text attached: How the Current Unconstitutional Texas Medical Law Does Harm Texans) and I want to testify it later.

In my opinion, acupuncturists “holding themselves as physicians” will never attempt to mislead or deceive the people in Texas. All Texans know how to find a specialist among the tens of thousands of physicians / doctors whenever they get sick,

For example, when a man suffers from prostate problems, he will not be mislead into seeing an OB/GYN physician or a pediatrician. He knows they are all different even though they are all physicians. People in Texas know which doctors are the dentists, urologists, gynecologists, ophthalmologists, psychologists; or acupuncturists. These patients will never be mislead or confused by the title of “acupuncture physician” or “acupuncture doctor.”

However, this part of Texas Medical Rules has become a powerful weapon used to significantly persecute licensed acupuncturists. It furthermore results in wasting our government’s budget—Texans’ valuable money, in performing investigations and enforcements to discriminate and persecute licensed acupuncturists in Texas.

A person licensed to practice medicine is a doctor or physician. This definition has been true through human history. Chinese medicine is medicine, and the person licensed to practice Chinese medicine is a doctor or physician. We all agree that Chinese food is food, and the person who cooks Chinese food is also called a cook. The title of cook is not reserved for only one who cooks American food.

According to Title 3, Subtitle B, Chapter 151, Subchapter A, Sec. 151.002, (a) (12)-(13B), the Medical Practice Act of Texas defines a “physician” as a person licensed to practice medicine in this state. The Act also defines “practicing medicine” as the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical deformity or injury by any system or method, or the attempt to effect cures of those conditions, by a person who: (A) publicly professes to be a physician or surgeon; or (B) directly or indirectly charges money or other compensation for those services. Licensed acupuncturists practicing Chinese Medicine most certainly fulfills both of these definitions, but they are excluded from the “physician” category, and they are prohibited from calling themselves physicians. (Texas Medical Board Law, Title 3, Subtitle C, Subchapter H., Sec. 205.351, Action. (a) (8)) That law is obviously discriminating and unconstitutional!

An acupuncturist is a person licensed to practice acupuncture, which is Chinese medicine. This person is a physician, or doctor, unless we continue, and insist on denying that Chinese medicine is also medicine.
I, myself, fully understand that the Texas Medical Practice law defines that only those who hold the doctoral degrees can be called physicians, such as M.D.,D.O., D.C., etc. However, a degree name and a career name are not the same. A degree is only a degree, and may not automatically make a person a physician in his/her career, unless he/she fulfils all the requirements to be “licensed to practice medicine.”
Furthermore, holding a doctoral degree may not automatically make one a better physician. Is it not true that a preacher who holds a doctoral degree in theology may not necessarily be a better preacher? Most Christians believe that Peter, James, John, Mathew, Luke, and Paul, etc. in the New Testament, who didn’t have a “doctor’s degree in theology,” are the greatest preachers in history.

If we read history, we will have the knowledge and wisdom to live our lives, to make the right decisions, and be better problem solvers. (See attached articles: “History of the Nation of China and its Medicine, Part I and Part II.” ,“The Human History”, “What is doctor or physician?”, “The Definition in Dictionary”, “What is the Scientific Evidence of Acupuncture and Chinese Medicine?”, “Why Acupuncture Works”, “How Can We Make FDA Believe in Acupuncture and Approve It.)”

Not long ago, African American citizens of the U.S., based only on their skin color were mistreated in this country-- a nation under God. The U.S. government enforced many discriminating law and persecuted African Americans just because they wanted to live with the same basic citizen rights as the white men. Fortunately, and we give thanks to God, this nation finally changed the law. We no longer discriminate and persecute African Americans. They really are American citizens.

Sometimes, the same or similar mistakes are repeated in history. For instance, even now, the U.S. governments, including Texas government agencies, are discriminating and persecuting physicians who are practicing Chinese medicine. Licensed acupuncturists are persecuted simply because of the different origin of the medicine they practice. Ironically, most of the modern, American medicine comes from Chinese medicine, its herbs, or their derivatives. (See attached articles)
A definition and terminology must not be changed or redefined according to the whims of those who hold political power. One definition must be recognized and used worldwide. It would be like saying that an “orange” shall not be called an “orange” because the Texas food and medical authority says so. This would be ridiculous. Accordingly, if the Texas Medical Rules prohibits a Chinese doctor (a person practicing Chinese medicine) from being called a “doctor” or “physician”, it does not make him any less of a doctor. It is wrong, and it must be changed!
Changing a bad law has never been easy, as some groups of medical organizations, who hold the super power, do not want the current law to be changed, for reasons of pride, prejudice, selfishness, or ignorance. They continue to bully the acupuncturists and, in the end, harm Texans.
However, I still have hope. I know there are still many people and government bodies in this country, especially the Sunset Advisory Commission members in this state, who have conscience and will be able to review and abolish the current bad law which is wasting tax payers’ money to investigate and enforce disciplinary actions to licensed acupuncturists for calling themselves doctors or physicians.

I came from Taiwan to Texas 29 years ago. I love this great country and I love this great state. I have already seen many of my dreams fulfilled, just like many other people who immigrate to this country. In the past twenty years, I have treated over 20,000 patients in Texas, about 99% of who are Texas residents. I helped them as a doctor, to get well.

However, I still have a dream, and that I share with my Texas patients’. This dream is that the great Chinese medicine which has been benefiting billions and billions of patients in the world, including them, and myself, can also benefit many more patients in this state and in this country. We also have another common dream: It is this: the person practicing this Chinese medicine will not be discriminated against and persecuted by this great nation and this great state any longer.
Again, physician” or “doctor” has been a common career name for thousands of years in human history, but has been redefined to become a holy name in this nation. The medical authority in this country and most people has looked up to a “physician” like a “god,” even “an only god”. If somebody uses that “holy god’s name” without their permission, it will be considered as blasphemy, and shall be punished. This kind of terrible thing only happens in the U.S., a nation under God, because of a law written by Texas Medical Board Rule.
Many acupuncturists licensed from Texas Medical Board are contributing their expertise to treat and help the patients in this great state. At the same time, they are fearful that possibly one day they will be persecuted and disciplined by the current law, if they admit their true identity— as physicians. After lengthy and cost-wasting investigations, they will stand before the Texas Medical Board Members, waiting for the sentence: “guilty!” And the only evidence of being guilty is they are speaking the truth: They are physicians!
Practicing Chinese medicine is what they choose for their career, and the common name to fit this career is “physician.”

The following story is a reference for the Sunset Advisory Commission Members to make the decision to help Texas to change the current discriminating law:

In Mathew 26:59-66:  59The chief priests and the whole Sanhedrin were looking for false evidence against Jesus so that they could put him to death. 60 But they did not find any, though many false witnesses came forward. ---
     62 Then the high priest stood up and said to Jesus, "Are you not going to answer? What is this testimony that these men are bringing against you?" 63 But Jesus remained silent.  The high priest said to him, "I charge you under oath by the living God: Tell us if you are the Christ, the Son of God."  64 "Yes, it is as you say," Jesus replied. ---   65 Then the high priest tore his clothes and said, "He has spoken blasphemy! Why do we need any more witnesses? Look, now you have heard the blasphemy. 66 What do you think?"   "He is worthy of death," they answered.

The only evidence they used to crucify Jesus is that He, the creator of the universe, spoke the truth-- He is the Christ, the Son of God.

Finally, I am still very grateful that I came to this great country and this great state. I feel particularly happy today that I can sit here in front of all of you, the Honorable Sunset Commission members and share my views on the performance of the Texas Medical Board. I just humbly pray that the Lord bless you with the wisdom, knowledge, and understanding to do the right thing—abolish the current discriminating medical law. This will help Texans, and make my dream and the dreams of my patients come to pass.

May God bless U.S.A. and the sate of Texas.

With reverence,

How the Current Unconstitutional Texas Medical Law Does Harm Texans:

By Dr. Chung-Hwei Chernly 12/11/08

  1. Texas Medical Board Rules’ exclusion of acupuncturists as physicians has made another government agency—Blood Bank, think that acupuncturists are “those who can’t”, and disqualifies Texans being treated by acupuncture from donating blood to save other people.

(1) On Sunday, November 2, 2008, one of my patients from First Presbyterian Church in Grapevine, TX, was willing to donate blood to the Carter Blood Bank. The Blood Bank Vehicle was set up in that church’s parking area. When she filled out the questionnaire, she was then disqualified to donate her blood because the blood bank considered her blood to be bad blood since she was treated by me, a Texas licensed acupuncturist.

(2) A person with a great heart trying to donate blood to save others was made to feel insulted, and discriminated against.

(3) Texas blood bank lost the chance to collect good blood to save fellow Texans.

2. Texas Workers Compensation Commission (TWCC) used Texas Medical Board discriminating law as a weapon, and stopped licensed acupuncturists from treating Texas injured workers since 2003.

(1) Since 1987, Texas acupuncturists have helped numerous Texas Workers’ Compensation patients to recover and return to work. More and more of Texas’ injured workers felt hopeful that an acupuncturist could treat them, and they would get well quickly and return to work. However, Five years ago TWCC used Texas Medical Board discriminating law as a weapon and stopped licensed acupuncturists from treating Texas injured workers.

(2) The government agencies joined with the Texas Medical Board to bully the Texas acupuncturists, and numerous Texans also become the victims. Those injured workers and their families are crying out! They are very disappointed and very angry with our Texas government, and of course, with the lawmakers that made that law.

(3) Because of this discriminating medical law, Texans’ hopes and rights have been taken away.

(4) Injured workers of Texas feel they are being discriminated against by the Texas government. Their friends and injured coworkers in other states can be treated with acupuncture and have it covered by workers compensation. In this way, Texas citizens feel that our Texas government is discriminating against them.

3. “Robbery in Texas” has become a daily routine activity. And the weapons used to rob are given by Texas Medical Board Rule.

Many people have been mislead, and/or encouraged to join with the government’s idea that a licensed acupuncturist is not a physician, Texas Employers and Health Insurance Carriers rob the acupuncturists and their profession by using this law. According to the Texas Medical Practice Law, every body who is “physician” can practice acupuncture “without acupuncture license” and be paid by health insurance. The licensed acupuncturist is excluded out of the coverage. “The real owner is robbed”

For examples:

(1) Union Pacific Railroad, BC/BS, and U.H.C. health care plans cover acupuncture services if the services are rendered by M.D., D.S.C., D.C., D.O., D.P.M., D.D.S., D.M.D., but a Licensed Acupuncturist is not a covered provider.

(2) Bruckner Truck Sales, Inc., IMS in Amarillo, Texas; APWU Federal Employee Health Plans cover acupuncture services if it is performed by a medical or dental doctor, surgeon, chiropractor, osteopath, chiropodist, podiatrist, optometrist or consulting psychologist, audiologist, speech pathologist, P.A. R.N. LPN, LVN. CRNA, social workers, audiologist, and nurse midwife, etc. Yet, a licensed acupuncturist is not considered a health acre provider on this plan.

4. The Texas Medical Law is unconstitutional. All Texans are victims.

The constitution must protect every profession and the public. The licensing for our profession is a must. I personally do not believe that the Texas lawmakers made that Texas Medical Board Rule on purpose to encourage all other professions, to steal and rob Texas acupuncturists. However, this law has allowed robbing and stealing the profession of acupuncture and Chinese medicine, including their common career names and properties to become daily routine activities. So, indirectly, the robbery is supported and initiated by the Texas government.
5. Most importantly, the Texas government allowing people to practice acupuncture without an acupuncture license has put all Texans into a dangerous situation, and all Texans will be the victims. Because of the current Texas Medical Law, the rules which discriminate against licensed acupuncturists, is dangerous. It is unfair and therefore unconstitutional. It must be abolished!


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