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Oregon Ass'n of Acupuncture & Oriental Medicine v. Board of Chiropractic Examiners

Court of Appeals of Oregon

January 23, 2014

OREGON ASSOCIATION OF ACUPUNCTURE AND ORIENTAL MEDICINE, ALFRED THIEME, and E. CHRISTO GORAWSKI, Petitioners,
v.
BOARD OF CHIROPRACTIC EXAMINERS, Respondent, and, UNIVERSITY OF WESTERN STATES; and JOHN L. V. PLATT, D.C., P.C., dba Woodstock Chiropractic Clinic, Intervenors-Respondents

Argued and Submitted: July 17, 2013.

Board of Chiropractic Examiners.

Patrick T. Foran argued the cause for petitioners. With him on the briefs were Thane W. Tienson and Landye Bennett Blumstein LLP.

Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

James E. Mountain, Jr., argued the cause for intervenor-respondent University of Western States. With him on the brief were Jona J. Maukonen, Frank A. Moscato, and Harrang Long Gary Rudnick P.C.

Andrew T. Reilly and Black Helterline LLP filed the brief for intervenor-respondent John L. V. Platt, D.C., P.C., dba Woodstock Chiropractic Clinic.

Before Schuman, Presiding Judge, and Duncan, Judge, and Tookey, Judge.[*]

OPINION

Page 576

[260 Or.App. 678] TOOKEY, J.

Petitioners challenge the validity of OAR 811-015-0036, a rule adopted by the State Board of Chiropractic Examiners (the board) that authorizes chiropractic physicians to perform " dry needling." Petitioners assert that the rule exceeds the board's statutory authority, and they make several arguments to support that contention. We address only petitioners' first argument--that the challenged rule authorizes a technique that is not encompassed within the practice of " chiropractic," as defined by ORS 684.010(2)--which is dispositive. Because we conclude that dry needling does not fall within the practice of chiropractic, we declare OAR 811-015-0036 invalid.

Under ORS 183.400(1), " any person" may petition this court to determine the validity of a rule. In reviewing a rule challenge under that statute, we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures. ORS 183.400(4). Here, petitioners do not argue that OAR 811-015-0036 is unconstitutional or that its adoption was procedurally flawed; they assert only that the rule exceeds the board's statutory authority.

To determine whether a challenged rule exceeds the agency's statutory authority, we may consider only " the wording of the rule itself (read in context) and the statutory provisions authorizing the rule." Wolf v. Oregon Lottery Commission, 344 Or. 345, 355, 182 P.3d 180 (2008) (citing ORS 183.400(3)(a), (b)). Based on those sources, we consider whether the agency's adoption of the rule exceeded the authority granted by statute and, further, whether the agency " departed from a legal standard expressed or implied in the particular law being administered, or contravened some other applicable statute." Planned Parenthood Assn. v. Dept. of Human Res., 297 Ore 562, 565, 687 P.2d 785 (1984). In making that determination, we seek to discern the legislature's intent by examining the text and context of the relevant statutes and, if useful to the analysis, pertinent legislative history. See State v. Gaines, 346 Ore 160, 171-72, 206 P.3d 1042 (2009) (describing statutory analysis).

[260 Or.App. 679] We begin with the statutory provisions authorizing the board to adopt rules related to the practice of chiropractic in Oregon. The board has the authority " [t]o enforce the ...


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