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.