By: Harris S.B. No. 1314
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of the practice of acupuncture.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 205.001, Occupations Code, is amended by
amending Subdivision (2) and adding Subdivision (2-a) to read as
follows:
(2) "Acupuncture" means:
(A) the [nonsurgical, nonincisive] insertion of
an acupuncture needle and the application of moxibustion to
specific areas of the human body as a primary mode of therapy to
treat and mitigate a human condition, including evaluation and
assessment of the condition; and
(B) the administration or recommendation of
thermal or electrical treatments or [the recommendation] of dietary
guidelines, energy flow exercise, or dietary or herbal supplements
in conjunction with the treatment described by Paragraph (A).
(2-a) "Acupuncture" does not include surgery or
clinical needle electromyography.
SECTION 2. Section 205.003, Occupations Code, is amended to
read as follows:
Sec. 205.003. EXEMPTION; LIMITATION. (a) This chapter
does not apply to a physician [health care professional licensed
under another statute of this state and acting within the scope of
the license].
(b) This chapter does not:
(1) limit the practice of medicine by a physician,
including the delegation and supervision of medical acts by a
physician;
(2) permit the unauthorized practice of medicine; or
(3) permit a person to dispense, administer, or supply
a controlled substance, narcotic, or dangerous drug [unless the
person is authorized by other law to do so].
SECTION 3. Section 205.060, Occupations Code, is amended to
read as follows:
Sec. 205.060. APPLICATION OF OPEN MEETINGS, OPEN RECORDS,
AND ADMINISTRATIVE PROCEDURE LAWS. (a) Except as provided by
this chapter, the acupuncture board is subject to Chapters 551,
552, and 2001, Government Code.
(b) The acupuncture board may hear all evidence and
arguments and conduct deliberations relating to license
applications and disciplinary actions under this chapter in
executive sessions. The board shall vote and announce its
decisions in open session. Deliberations by the board relating to
license applications and disciplinary actions are exempt from
Chapter 551, Government Code.
SECTION 4. Section 205.101, Occupations Code, is amended by
amending Subsections (a) and (b) and adding Subsection (d) to read
as follows:
(a) Except as provided by Subsection (d) [Subject to the
advice and approval of the medical board], the acupuncture board
shall:
(1) establish qualifications for an acupuncturist to
practice in this state;
(2) establish minimum education and training
requirements necessary for the acupuncture board to [recommend that
the medical board] issue a license to practice acupuncture;
(3) administer an examination that is validated by
independent testing professionals for a license to practice
acupuncture;
(4) develop requirements for licensure by endorsement
of other states;
(5) prescribe the application form for a license to
practice acupuncture;
(6) [recommend rules to] establish licensing and other
fees; and
(7) adopt [establish the requirements for a tutorial
program for acupuncture students who have completed at least 48
semester hours of college; and
[(8) recommend] additional rules as are necessary to
administer and enforce this chapter.
(b) In establishing minimum education and training
requirements under Subsection (a)(2), the acupuncture board shall
consider the minimum education and training standards established
by the Accreditation Commission for Acupuncture and Oriental
Medicine.
(d) A rule relating to the scope of practice of acupuncture
must have the advice and approval of the medical board. [The
acupuncture board does not have independent rulemaking authority.
A rule adopted by the acupuncture board is subject to medical board
approval.]
SECTION 5. Section 205.103, Occupations Code, is amended to
read as follows:
Sec. 205.103. FEES. The acupuncture [medical] board shall
set [and collect] fees in amounts that are reasonable and necessary
to cover the costs of administering and enforcing this chapter,
including the costs for the medical board to collect the fees,
without the use of any [other] funds generated by the medical board.
SECTION 6. Section 205.201, Occupations Code, is amended to
read as follows:
Sec. 205.201. LICENSE REQUIRED. (a) Except as provided by
Section 205.303, a person may not practice or represent that the
person practices acupuncture in this state unless the person holds
a license to practice acupuncture issued by the acupuncture board
under this chapter.
(b) A person practices acupuncture if the person performs,
offers to perform, or attempts to perform acupuncture.
(c) A person represents that the person practices
acupuncture if the person:
(1) uses in connection with the person's name or
business activity:
(A) the word "acupuncturist" or "acupuncture";
(B) the letters or abbreviation "L.Ac." or
"Lic.Ac."; or
(C) any other words, letters, abbreviations, or
insignia indicating or implying that the person is an
acupuncturist; or
(2) directly or by implication represents to the
public that the person is an acupuncturist or that the person
provides acupuncture.
(d) This section does not apply to a physician or a person
acting under the delegation and supervision of a physician.
SECTION 7. Section 205.204, Occupations Code, is amended to
read as follows:
Sec. 205.204. APPLICATION FOR EXAMINATION. An application
for examination must be:
(1) in writing on a form prescribed by the acupuncture
board;
(2) verified by affidavit;
(3) filed with the executive director; and
(4) accompanied by a fee in an amount set by the
acupuncture [medical] board.
SECTION 8. Section 205.208, Occupations Code, is amended to
read as follows:
Sec. 205.208. TEMPORARY LICENSE. The acupuncture board may
adopt rules and recommend to the medical board fees relating to
granting temporary licenses and extending the expiration dates of
temporary licenses. The acupuncture board by rule shall set a time
limit for the term of a temporary license [(a) The acupuncture
board may, through the executive director, issue a temporary
license to practice acupuncture to an applicant who:
[(1) submits an application on a form prescribed by
the acupuncture board;
[(2) has passed a national or other examination
recognized by the acupuncture board relating to the practice of
acupuncture;
[(3) pays the appropriate fee;
[(4) if licensed in another state, is in good standing
as an acupuncturist; and
[(5) meets all the qualifications for a license under
this chapter but is waiting for the next scheduled meeting of the
medical board for the license to be issued.
[(b) A temporary license is valid for 100 days after the
date issued and may be extended only for another 30 days after the
date the initial temporary license expires].
SECTION 9. The heading to Section 205.301, Occupations
Code, is amended to read as follows:
Sec. 205.301. EVALUATION [REFERRAL] BY OTHER HEALTH CARE
PRACTITIONER REQUIRED.
SECTION 10. Subsections (a), (b), and (d), Section 205.301,
Occupations Code, are amended to read as follows:
(a) A license holder may perform acupuncture on a person
only if the person was[:
[(1)] evaluated by a physician, chiropractor, or
dentist, or a person acting under the delegation and supervision of
a physician, as appropriate, for the condition being treated within
12 [six] months before the date acupuncture is performed[; or
[(2) referred by a chiropractor within 30 days before
the date acupuncture is performed].
(b) A license holder acting under Subsection (a) [(a)(1)]
must obtain reasonable documentation that the required evaluation
has taken place. If the license holder is unable to determine that
an evaluation has taken place, the license holder must obtain a
written statement signed by the person on a form prescribed by the
acupuncture board that states the person has been evaluated by a
physician, chiropractor, or dentist, or a person acting under the
delegation and supervision of a physician, within the prescribed
time. The form must contain a clear statement that the person
should be evaluated by a physician, chiropractor, or dentist, or a
person acting under the delegation and supervision of a physician,
for the condition being treated by the license holder.
(d) The medical board, with advice from the acupuncture
board, by rule may modify:
(1) the scope of the evaluation under Subsection (a)
[(a)(1)]; or
(2) the period during which treatment must begin under
Subsection (a) [(a)(1) or (2); or
[(3) the number of treatments or days before referral
to a physician is required under Subsection (c)].
SECTION 11. Section 205.302, Occupations Code, is amended
to read as follows:
Sec. 205.302. AUTHORIZED PRACTICE WITHOUT EVALUATION
[REFERRAL]. [(a) After notice and public hearing, the medical
board shall determine by rule whether an acupuncturist may treat a
patient for alcoholism or chronic pain without a referral from a
physician, dentist, or chiropractor. The medical board shall make
the determination based on clinical evidence and what the medical
board determines to be in the best interest of affected patients.
[(b)] Notwithstanding Section 205.301, a license holder
may, without an evaluation [a referral] from a physician, dentist,
or chiropractor, or a person acting under the delegation and
supervision of a physician, perform acupuncture on a person for:
(1) smoking addiction;
(2) weight loss; or
(3) [substance abuse,] to the extent permitted by
medical board rule adopted with advice from the acupuncture board:
(A) substance abuse;
(B) chronic pain;
(C) stress;
(D) an allergy; or
(E) nausea.
SECTION 12. Subsection (a) and (d), Section 205.303,
Occupations Code, are amended to read as follows:
(a) The medical board may certify a person as an acudetox
specialist under this section if the person:
(1) provides to the medical board documentation that
the person:
(A) is a licensed social worker, licensed
professional counselor, licensed psychologist, licensed chemical
dependency counselor, licensed vocational nurse, or licensed
registered nurse; and
(B) has successfully completed a training
program in acupuncture detoxification that meets guidelines
approved by the medical board; and
(2) pays a certification fee in an amount set by the
acupuncture [medical] board.
(d) The medical board may annually renew the certification
of an acudetox specialist under this section if the person:
(1) provides to the medical board documentation that:
(A) the certification or license required under
Subsection (a)(1)(A) is in effect; and
(B) the person has successfully met continuing
education requirements established by the medical board under
Subsection (e); and
(2) pays a certification renewal fee in an amount set
by the acupuncture [medical] board.
SECTION 13. Section 205.3544, Occupations Code, is amended
to read as follows:
Sec. 205.3544. LIMIT ON ACCESS TO INVESTIGATION FILES.
(a) Each complaint, adverse report, investigation file, other
investigation report, and other investigative information in the
possession of or received or gathered by the acupuncture board or a
medical board employee or agent relating to a license holder, an
application for license, or a criminal investigation or proceeding
is privileged and confidential and is not subject to discovery,
subpoena, or other means of legal compulsion for release to anyone
other than the acupuncture board or medical board employees or
agents involved in discipline of a license holder.
(b) Investigation records relating to an application for
license and disciplinary action of a license holder are exempt from
Chapter 552, Government Code.
(c) For purposes of this subsection, investigative
information includes information relating to the identity of, and a
report made by, a physician performing or supervising compliance
monitoring for the acupuncture board [The acupuncture board shall
prohibit or limit access to an investigation file relating to a
license holder in an informal proceeding in the manner provided by
Section 164.007(c)].
SECTION 14. Section 205.355, Occupations Code, is amended
to read as follows:
Sec. 205.355. REQUIRED DISCIPLINARY ACTION FOR FAILURE TO
OBTAIN EVALUATION [REFERRAL]. A [Except as provided by Section
205.301(a)(2), a] license to practice acupuncture shall be denied
or, after notice and hearing, revoked if the applicant or license
holder violates Section 205.301(a) [205.301(a)(1)].
SECTION 15. Subsection (c), Section 205.301, Occupations
Code, is repealed.
SECTION 16. (a) The Texas State Board of Acupuncture
Examiners shall adopt rules as required by Section 205.101 or
205.208, Occupations Code, as amended by this Act, not later than
January 1, 2010. A rule or form in effect under Chapter 205,
Occupations Code, on the effective date of this Act remains in
effect until January 1, 2010.
(b) The Texas Medical Board shall adopt necessary rules
under Section 205.302, Occupations Code, as amended by this Act,
not later than September 1, 2010.
(c) An application for a license to practice acupuncture
filed under Chapter 205, Occupations Code, before January 1, 2010,
is covered by the law in effect immediately before the effective
date of this Act, and the former law is continued in effect for that
purpose.
SECTION 17. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.