IML S.B. 361 75(R)    BILL ANALYSIS 

PUBLIC HEALTH
S.B. 361
By: Madla (Gray)
5-8-97
Committee Report (Amended)


BACKGROUND

The Texas State Board of Acupuncture Examiners (acupuncture board) was
created as an administratively attached board to the Board of Medical
Examiners (medical board) in 1993 by the 73rd Legislature.  The
acupuncture board is responsible for providing an orderly system of
regulating the practice of acupuncture, subject to the advice and approval
of the medical board.  The acupuncture board carries out its programs and
functions through a nine-member board appointed by the governor and
through the use of the staff of the medical board.  To carry out these
programs, the acupuncture board has a budget of $59,614 and 2.18 medical
board employees for fiscal year 1996.   

The acupuncture board is subject to the Sunset Act and will be abolished
September 1, 1997, unless continued by the Legislature.  As a result of
its review of the acupuncture board, the Sunset Advisory Commission
recommended continuation and several statutory modifications that are
contained in this legislation.  

PURPOSE

S.B. 361 continues the Texas State Board of Acupuncture Examiners for an
eight-year period and makes statutory modifications recommended by the
Sunset Advisory Commission.   

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly
granted to the Texas State Board of Acupuncture Examiners (subject to the
medical board's approval as per existing language) in SECTION 5 (Section
6.051(b), Article 4495b, Vernon's Texas Civil Statutes) and to the Board
of Medical Examiners in SECTION 5 (Section 6.085(a) and (b), Article
4495b, Vernon's Texas Civil Statutes) and SECTION 7 (Section 6.10(j),
Article 4495b, Vernon's Texas Civil Statutes) of this bill.   

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 6.02, Medical Practice Act (Article 4495b,
V.T.C.S.), by amending Subsection (1)(A), to add "nonsurgical,
nonincisive" to the definition of "Acupuncture." 

SECTION 2.  Amends Section 6.04, Medical Practice Act (Article 4495b,
V.T.C.S.), by amending Subsections (b), (d), (g), and (h), and adding
Subsections (i)-(l) as follows: 

(b) Prohibits registered lobbyists from serving as a member of the
acupuncture board. Removes restriction on persons employed by or serving
as president, vice president, secretary, or treasurer of a statewide or
national organization incorporated for the purpose of representing a
health care profession in Texas or the United States from serving as a
member of the acupuncture board.  

(d) Requires the governor to designate a member of the acupuncture board
as presiding officer.  Specifies that the presiding officer of the
acupuncture board serves at the pleasure of the governor. 

 (g) Prohibits certain persons from appointment as a public member of the
acupuncture board. 

 (h)-(j) Prohibits an officer, employee, or paid consultant of a Texas
trade association in the field of health care, or their spouse, from being
a member of the acupuncture board or a certain employee of the medical
board.  Defines Texas trade association.  Removes language which made the
acupuncture board subject to the open meetings law, the open records law,
and the Administrative Procedure Act. 

(k) Requires appointments to the acupuncture board to be made without
regard to race, color, disability, sex, religion, age or national origin. 

(l) Updates the Texas State Board of Acupuncture Examiners Sunset date to
September 1, 2005.  Makes a conforming change. 

SECTION 3. Amends Subchapter F, Medical Practice Act (Article 4495b,
V.T.C.S.), by adding Sections 6.041 and 6.042, as follows: 

Sec. 6.041.  GROUNDS FOR REMOVAL FROM ACUPUNCTURE BOARD.  Sets forth the
grounds for removal from the acupuncture board.  The validity of an action
of the acupuncture board is not affected by the existence of a ground for
removal of a member. Requires the executive director of the Board of
Medical Examiners (medical board) to notify the presiding officer, and
requires the presiding officer to notify the governor and the attorney
general, of a potential ground for removal of a member.  Requires the
executive director or a designee to provide to members of the acupuncture
board certain information regarding their qualifications for office and
their legal responsibilities.   

Sec. 6.042.  BOARD MEMBER TRAINING.  Requires a member of the acupuncture
board to complete at least one course of training established under this
section to assume duties and be confirmed by the senate.  Requires a
training program to provide certain information.   

SECTION 4. Amends Section 6.05, Medical Practice Act (Article 4495b,
V.T.C.S.), to require the acupuncture board, subject to the advice and
approval of the medical board, to develop and implement certain policies
regarding public input.  Deletes a clause requiring the acupuncture board
to establish a procedure for reporting and processing complaints relating
to the practice of acupuncture under this article.  Requires the
acupuncture board to comply with certain federal and state laws.  Requires
the executive director of the medical board to prepare and maintain a plan
regarding non-English speakers.  Makes conforming changes.   

SECTION 5. Amends Subchapter F, Medical Practice Act (Article 4495b,
V.T.C.S.),  by adding Sections 6.051, 6.071,  6.075, and 6.085, as
follows: 

Sec. 6.051.  PUBLIC INTEREST INFORMATION; COMPLAINTS. Requires the
acupuncture board to prepare public information regarding board functions
and complaint procedures.   Requires the acupuncture board to make the
information available to the public and appropriate state agencies.
Requires the acupuncture board, by rule, to establish methods to provide
notification of certain information to consumers and service recipients.
Allows the  acupuncture board to provide such notification as specified.
Requires the acupuncture board to maintain files on written complaints
that the acupuncture board has the authority to resolve, provide certain
information to persons involved in a complaint,  and to notify the parties
regarding the status of the complaint as specified.  Requires the
acupuncture board to keep information regarding complaints as specified. 

Sec. 6.071.  EXAMINATION RESULTS.  Requires the acupuncture board to
notify license applicants of licensing examination results as specified.
Allows the acupuncture board to require a testing service to notify
examinees of results.  Requires the acupuncture board, on request from an
applicant who failed a licensing examination, to provide an analysis of
the applicant's exam performance if an analysis is available from the
national testing service. 

Sec. 6.075.  TEMPORARY LICENSE.  Allows the acupuncture board, through the
executive director of the medical board, to issue a temporary license to
certain applicants.  Provides that a temporary license is valid for 100
days from the date issued and may be extended only  for another 30 days
after the date the initial temporary license expires. 

Sec. 6.085.  ADVERTISING.  Prohibits the medical board from adopting
certain rules relating to competitive bidding or advertising, except to
prohibit false, misleading or deceptive practices as specified.   

SECTION 6. Amends Section 6.09, Medical Practice Act (Article 4495b,
V.T.C.S.), by adding Subsections (c) and (d), to establish that all money
paid to the medical board under this subchapter is subject to Subchapter
F, Chapter 404, Government Code.  Requires the medical board to prepare an
annual financial report that meets the reporting requirements in the
General Appropriations Act. 

SECTION 7. Amends Section 6.10, Medical Practice Act (Article 4495b,
V.T.C.S.), as follows: 

Sec. 6.10.  New heading:  ISSUANCE AND RENEWAL OF LICENSE.  (b) Allows the
medical board to waive any prerequisite for a license under certain
circumstances. 

(c) Makes a conforming change.

(d) Allows a person to renew an unexpired license as specified.  Prohibits
a person whose license has expired from engaging in certain activity. 

(e) Allows a person to renew a license as specified if the license has
been expired for 90 days or less. 

(f) Allows a person to renew a license as specified if the license has
been expired for less than 1 year, but more than 90 days. 

(g) Prohibits license renewal if the license has been expired for 1 year
or longer.  Allows a person to obtain an original license by submitting to
reexamination and complying with all the requirements and procedures. 

(h) Allows renewal of expired licenses without reexamination in certain
circumstances regarding out of state practice. 

(i)  Requires the medical board to send written notice of impending
expiration of a license as specified. 

(j) Allows the medical board, by rule, to adopt a system by which licenses
expire on certain dates during the year.  Requires license fees to be
prorated under certain circumstances. 

SECTION 8. Amends Subchapter F, Medical Practice Act (Article 4495b,
V.T.C.S.), by adding 6.101, as follows: 

Sec. 6.101.  LICENSE HOLDER INFORMATION.  Requires each license holder to
file certain information with the board.  Requires a license holder to
notify the acupuncture board of a change of address by a certain date.     

SECTION 9. Amends Section 6.11, Medical Practice Act (Article 4495b,
V.T.C.S.), and redesignates Sections 6.11(b)-(g) as Section 6.115, as
follows: 

Sec. 6.11.  Allows license denial, suspension, probation, or revocation if
the applicant for a license or the holder of a license, among other
criteria, has been adjudged mentally incompetent by a court of competent
jurisdiction or has a mental or physical condition that renders the person
unable to perform safely as an acupuncturist; has practiced acupuncture in
a manner detrimental to the public health and welfare; has been convicted
of a felony or a crime of moral turpitude; fraudulently or deceptively
uses a license; has acted in an unprofessional or dishonorable manner that
is likely to deceive, defraud, or injure a member of the public; has
committed an act in violation of state law if the act is connected with
the person's practice as an acupuncturist; or has had the person's license
suspended, revoked, or  restricted, has had other disciplinary action
taken by another state regarding the person's practice as an
acupuncturist, or has had disciplinary action taken against the person by
the uniformed services of the U.S. based on acts by the license holder
similar to acts described in this section.  Provides that a complaint,
indictment, or conviction of a law violation is not necessary for the
enforcement of a denial, suspension, probation, or revocation of an
applicant for a license or the holder of a license who has committed an
act in violation of certain state laws.  Provides that proof of the
commission of an act while in practice as an acupuncturist or under the
guise of practice as an acupuncturist is sufficient for action by the
medical board.  Provides that a certified copy of the record of the state
or uniformed services of the U.S. taking an action is conclusive evidence
that a person's license has been suspended, revoked, or restricted, or the
person has had other disciplinary action taken against the person by
another state or the U.S.  Makes other conforming and nonsubstantive
changes.    

Sec. 6.115.  SCOPE OF PRACTICE.  Redesignates Sections 6.11(b)-(g) and
makes conforming changes.   

SECTION 10. Amends Subchapter F, Medical Practice Act (Article 4495b,
V.T.C.S.), by adding Sections 6.116, 6.117 and 6.118, as follows: 

Sec. 6.116.  ADDITIONAL DISCIPLINARY AUTHORITY.  Allows the acupuncture
board certain additional disciplinary authority upon a finding that an
acupuncturist has committed an offense described in Section 6.11 of this
Act.  

Sec. 6.117.  SUSPENSION, REVOCATION, OR NONRENEWAL OF LICENSE.  Sets forth
the provisions regarding disciplinary hearings conducted by the State
Office of Administrative Hearings. 
  
Sec. 6.118.  REHABILITATION ORDER.  (a)  Allows the acupuncture board,
through an agreed order or after a contested proceeding, to impose a
nondisciplinary rehabilitation order on any licensee or as a prerequisite
for issuing a license, on any licensure applicant as specified. 

(b)  Requires a rehabilitation order entered pursuant to this section to
be a nondisciplinary private order and to contain findings of fact and
conclusions of law.  Requires a rehabilitation order, if entered by
agreement, to be an agreed disposition or settlement agreement for
purposes of civil litigation and to be exempt from the open records law,
Chapter 552, Government Code. 

(c)  Allows a rehabilitation order entered pursuant to this section to
impose a revocation, cancellation, suspension, period of probation or
restriction, or any other terms and conditions authorized under this Act
or as otherwise agreed to by the acupuncture board and the individual
subject to the order.  

(d)  Provides that a violation of a rehabilitation order entered pursuant
to this section may result in disciplinary action under the provisions of
this Act for contested matters or pursuant to the terms of the agreed
order.  Allows a violation of a rehabilitation order to be grounds for
disciplinary action based on unprofessional or dishonorable conduct or on
any of the provisions of this Act which may apply to the misconduct which
resulted in violation of the rehabilitation order.   

(e)  Requires the rehabilitation order entered pursuant to this section to
be kept in a confidential file which shall be subject to an independent
audit by state auditors or private auditors contracted with by the
acupuncture board to perform such an audit.  Allows audits to be performed
at any time at the direction of the acupuncture board but requires that
they be performed at least once every three years.  Requires the audit
results to be reported in a manner that maintains the confidentiality of
all licensees who are subject to rehabilitation orders and to be a public
record.  Requires the audit to be for the purpose of ensuring that only
qualified licensees are subject to rehabilitation orders.   
  
SECTION 11. Amends Section 6.12(b), Medical Practice Act (Article 4495b,
V.T.C.S.), to provide that a person commits a third degree felony, rather
than a Class A misdemeanor, if the person commits an offense under this
section. 

SECTION 12. Amends Subchapter F, Medical Practice Act (Article 4495b,
V.T.C.S.), by adding Section 6.125, as follows: 

Sec. 6.125.  SUBPOENAS.  Allows the executive director of the medical
board or the presiding officer of the acupuncture board to issue a
subpoena or subpoena duces tecum for certain purposes.  Provides that
failure to timely comply with a subpoena issued under this section is a
ground for disciplinary action by the acupuncture board or any other
licensing or regulatory agency with jurisdiction over the individual or
entity subject to the subpoena; and denial of a license application.   

SECTION 13.  The change made by this Act to Section 6.12, applies only to
an offense of which all elements are committed on or after the effective
date.      

SECTION 14. Makes application of changes in law made by this Act, relating
to members of the acupuncture board, prospective.  Provides that this Act
does not prohibit a person who is a member of the acupuncture board on
September 1, 1997, from being reappointed to the acupuncture board if the
person has the qualifications required for a member under Subchapter F,
Medical Practice Act (Article 4495b, V.T.C.S.), as amended by this Act. 

SECTION 15. Effective date is September 1, 1997.  
  Makes application of this Act prospective.   

SECTION 16. Emergency clause.

EXPLANATION OF AMENDMENTS

Committee Amendment No. 1 makes the following change to the bill:

Deletes the amended definition of acupuncture so that the statutory
definition of acupuncture remains unchanged and does not include
"nonsurgical, nonincisive insertion of an acupuncture needle" as part of
the definition. The purpose of the amended definition with nonsurgical,
nonincisive was to allow chiropractors to practice acupuncture; however,
this authority has been set forth in committee amendments 3 and 4.  

Committee Amendment No. 2 makes the following change to the bill:

Updates standard Sunset language requiring members of the acupuncture
board to complete at least one course of specified training.  Also
specifies that a person appointed to the acupuncture board is entitled to
reimbursement for travel expenses incurred attending the training program. 

Committee Amendment No. 3 makes the following change to the bill:

Sets out guidelines under which chiropractors may practice acupuncture.
Requires chiropractors who practice acupuncture to complete a training
program at a school accredited by the Council on Chiropractic Education
and either the Central Education Agency or the Southern Association of
Colleges and Universities.  Also requires these chiropractors to maintain
certain continuing education requirements in acupuncture practice as
determined by the Chiropractic Board. 

Committee Amendment No. 4 makes the following change to the bill:

Expands the exemption in Article 4512b, V.T.C.S., Sec.13a, subsection (b)
relating to chiropractors, from using needles for drawing blood for
diagnostic testing to include the use  of needles for performing
acupuncture.  Exempts the use of a needle for performing acupuncture from
the incisive and surgical procedures that chiropractors are prohibited
from performing.