Kansas Attorney General Opinion 2018-008

March 5, 2018
ATTORNEY GENERAL OPINION NO. 2018- 8
Tucker L. Poling
General Counsel
Kansas State Board of Healing Arts
800 SW Jackson, Lower Level Suite A
Topeka, KS 66612
Re: 	Public 	Health—Naturopathic 	Doctors—Administration 	of 	Act 	by 	State
Board of Healing Arts
Synopsis: 	The Kansas State Board of Healing Arts has the legal authority to decide
whether a particular activity is within the scope of naturopathy as defined
by K.S.A. 2017 Supp. 65-7202(b) so long as such decision is consistent
with state law and is not unreasonable, arbitrary, or capricious. Cited
herein: K.S.A. 2017 Supp. 65-2802; 65-2836; 65-2864; 65-7201; K.S.A.
2017 Supp. 65-7202; 65-7203; 65-7204; 65-7208; 65-7211; K.A.R. 100-
72-3.
* 	* 	*
Dear Mr. Poling:
On behalf of the Kansas State Board of Healing Arts (Board), you ask our opinion on
whether the Naturopathic Doctor Licensure Act (Act)1 authorizes the Board to determine
whether the ordering of diagnostic imaging, such as x-rays, is within the scope of
“naturopathy” as defined by K.S.A. 2017 Supp. 65-7202(b). For the reasons described
below, we believe the answer to your question is yes, subject to certain restrictions as
further described below.
1 K.S.A. 65-7201 et seq.

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K.S.A. 2017 Supp. 65-7202(b) defines naturopathy as follows:
[A] 	system 	of 	health 	care 	practiced 	by 	naturopathic 	doctors 	for 	the
prevention, diagnosis and treatment of human health conditions, injuries
and diseases, that uses education, natural medicines and therapies to
support and stimulate the individual's intrinsic self-healing processes, and
includes 	prescribing, 	recommending 	or 	administering: 	(1) 	Food, 	food
extracts, vitamins, minerals, enzymes, whole gland thyroid, botanicals,
homeopathic preparations, nonprescription drugs, plant substances that
are not designated as prescription drugs or controlled substances, topical
drugs 	as 	defined 	in 	subsection 	(i) 	of 	this 	section, 	and 	amendments
thereto; (2) health care counseling, nutritional counseling and dietary
therapy, naturopathic physical applications, barrier contraceptive devices;
(3) substances on the naturopathic formulary which are authorized for
intramuscular or intravenous administration pursuant to a written protocol
entered into with a physician who has entered into a written protocol with a
naturopathic 	doctor 	licensed 	under 	this 	act; 	(4) 	noninvasive 	physical
examinations, venipuncture to obtain blood for clinical laboratory tests and
oroficial 	examinations, 	excluding 	endoscopies; 	(5) 	minor 	office
procedures; and (6) naturopathic acupuncture. A naturopathic doctor may
not perform surgery, obstetrics, administer ionizing radiation, or prescribe,
dispense or administer any controlled substances as defined in K.S.A. 65-
4101, and amendments thereto, or any prescription-only drugs except
those listed on the naturopathic formulary adopted by the board pursuant
to this act.
K.S.A. 2017 Supp. 65-7211(c) provides the following limitation of the scope of practice
of a licensed naturopathic doctor: “[n]o statute granting authority to persons licensed or
registered by the state board of healing arts shall be construed to confer authority upon
naturopathic doctors to engage in any activity not conferred by this act.”
In other words, the scope of a licensed naturopathic doctor’s practice is limited to those
activities the Act authorizes those licensees to perform. The fact that a naturopathic
doctor is licensed by the Board does not entitle the naturopathic doctor to perform the
same services as other Board licensees, such as physicians and physician assistants.
You ask if we believe the Board has the legal authority to determine whether the
ordering of diagnostic imaging is within the scope of naturopathy as defined in K.S.A.
2017 Supp. 65-7202(b). You also state that presently the Board is not seeking to take
any specific action to formalize its opinion of the scope of naturopathy, such as by
adopting a regulation or disciplining a licensee, so our analysis concerns the general
authority of state licensing agencies and the specific powers granted to the Board.
The Kansas Supreme Court has characterized the powers of a state administrative
agency as follows: “[a]dministrative agencies are creatures of statute and their power is
dependent upon authorizing statutes, therefore any exercise of authority claimed by the

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agency must come from within the statutes. There is no general or common law power
that can be exercised by an administrative agency.” 2
Put more specifically, “[a]ny authority claimed by an agency or board must be conferred
in the authorizing statutes either expressly or by clear implication from the express
powers granted.”3
In this case, the Act expressly authorizes the Board to perform certain functions,
including: issue doctor of naturopathy licenses to applicants who meet the statutory
qualifications for licensure; 4 “adopt rules and regulations as may be necessary to
administer the provisions of [the Act];”5 and discipline a licensed naturopathic doctor for
unprofessional 	conduct, 	which 	includes 	being 	guilty 	of 	unprofessional 	conduct 	as
defined by the Board’s rules and regulations, 6 violating any rule or regulation of the
Board, 7 or violating any provision of the Act. 8 The Act also states that the Board “shall
administer the provisions of this act.”9
Thus, the Act empowers the Board to administer the Act, and to adopt rules and
regulations defining unprofessional conduct for the purpose of professional discipline.
The Act also clarifies that a naturopathic doctor license authorizes the licensee to
perform only those activities as are authorized under the Act.
The Board has adopted a regulation defining “unprofessional conduct.” K.A.R. 100-72-3
states in relevant part:
“Unprofessional conduct” means the commission of any of the following by
an applicant or a registrant: 10
(a) Unlawfully 	invading 	any 	branch 	of 	the 	healing 	arts 	by 	providing
professional 	services 	that 	exceed 	the 	statutory 	definition 	of
naturopathy, unless the professional services are provided under the
supervision of or by order of a person who is licensed to practice the
healing arts. . . .
Regulations adopted by the Board have the force and effect of law and are presumed
valid. 11 “To be valid, rules or regulations of an administrative agency must be within the
2 Pork Motel, Corp. v. Kansas Dept. of Health and Environment, 234 Kan. 374, 378-79 (1983).
3 Fort Hays State University v. Fort Hays State University Chapter, American Assoc. of University
Professors, 290 Kan. 446, 455 (2010).
4 See K.S.A. 2017 Supp. 65-7204.
5 K.S.A. 2017 Supp. 65-7203(b).
6 K.S.A. 2017 Supp. 65-7208(a)(2).
7 K.S.A. 2017 Supp. 65-7208(a)(3).
8 K.S.A. 2017 Supp. 65-7208(a)(5).
9 K.S.A. 2017 Supp. 65-7203(a).
10 The Act originally established a system of registration of naturopathic doctors, but in 2010 the Act was
amended to replace registration with licensure. See L. 2010, Ch. 126. K.A.R. 100-72-3 has not been
amended since 2003; therefore, it appears that “registrant” is legacy language that should be construed to
refer to a licensed naturopathic doctor.

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statutory authority conferred upon the agency and must be appropriate, reasonable, and
not inconsistent with the law.” 12
In our opinion, K.A.R. 100-72-3(a), as quoted above, is within the statutory authority of
the Board to adopt and enforce, and is an appropriate and reasonable definition of
“unprofessional conduct.” It is also consistent with K.S.A. 2017 Supp. 65-7211(c) in that
it prohibits a licensed naturopathic doctor from performing activities beyond those
authorized by the Act.
As part of the Board’s determination of whether K.A.R. 100-72-3(a) has been violated,
the Board must necessarily determine whether a licensed naturopathic doctor has
performed services that “exceed the statutory definition of naturopathy.” Therefore, we
believe the Board has the legal authority to determine that a particular practice is
outside the scope of practice of naturopathy.
This authority is not unlimited, however. When interpreting a statute or regulation
Kansas 	courts 	owe 	no 	deference 	to 	an 	administrative 	agency’s 	interpretation 	or
construction of the statute or regulation. 13 State agency action is also subject to the
Kansas Judicial Review Act, 14 which authorizes the court to grant relief if the state
agency action is unreasonable, arbitrary or capricious. 15
Whether the ordering of a particular diagnostic imaging procedure falls within the scope
of naturopathy may involve a question of fact. For example, K.S.A. 2017 Supp. 65-
7202(b) defines naturopathy to include “prescribing, recommending or administering . . .
noninvasive physical examinations. . . .” We note that the Board has not adopted a
regulation to define “noninvasive physical examination.”
We note that in your letter, you suggest that the Board’s general oversight powers
described in K.S.A. 2017 Supp. 65-2836(g) and 65-2864 support a finding that the
Board has the power to determine whether particular practices fall within the scope of
naturopathy. However, those statutes do not apply to the Act because their application
is limited to persons “licensed under [the Kansas Health Arts Act, K.S.A. 65-2801 et
seq.] 	to 	practice 	medicine 	and 	surgery, 	osteopathic 	medicine 	and 	surgery 	or
chiropractic.”16 Therefore, those statutes are not useful in determining the Board’s
authority to interpret the Act.
In conclusion, it is our opinion that the Board is legally authorized to determine whether
a particular activity falls within the scope of practice of naturopathy as defined by K.S.A.
11 See, e.g., In re City of Wichita, 277 Kan. 487 (2004).
12 Id. at 495.
13Villa v. Kansas Health Policy Authority, 296 Kan. 315 (2013) (“. . . an agency's interpretation of a statute
or regulation is not afforded any significant deference on judicial review.”).
14 K.S.A. 77-601 et seq.
15 K.S.A. 2017 Supp. 77-621(c)(8).
16 See K.S.A. 2017 Supp. 65-2802(d) (defining “licensee” for the purposes of the Kansas Healing Arts
Act); 65-2836(g) and 65-2864. We would also caution the Board to be mindful of potential antitrust
challenges. See North Carolina State Bd. Of Dental Examiners v. F.T.C., 135 S. Ct. 1101 (2015).

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2017 Supp. 65-7202(b), so long as the Board’s action is consistent with state law and is
not unreasonable, arbitrary or capricious.
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:sb