By: Madla S.B. No. 361
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the continuation and functions of the Texas State Board
1-2 of Acupuncture Examiners; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 6.02, Medical Practice Act (Article
1-5 4495b, Vernon's Texas Civil Statutes), is amended to read as
1-6 follows:
1-7 Sec. 6.02. Definitions. In this subchapter:
1-8 (1) "Acupuncture" means:
1-9 (A) the nonsurgical, nonincisive insertion of an
1-10 acupuncture needle and the application of moxibustion to specific
1-11 areas of the human body as a primary mode of therapy to treat and
1-12 mitigate a human condition; and
1-13 (B) the administration of thermal or electrical
1-14 treatments or the recommendation of dietary guidelines, energy flow
1-15 exercise, or dietary or herbal supplements in conjunction with the
1-16 treatment described by Paragraph (A) of this subdivision.
1-17 (2) "Acupuncturist" means a person who practices
1-18 acupuncture.
1-19 (3) "Acupuncture board" means the Texas State Board of
1-20 Acupuncture Examiners.
1-21 (4) "Chiropractor" means a licensee of the Texas Board
1-22 of Chiropractic Examiners.
1-23 (5) "Executive director" means the executive director
2-1 of the Texas State Board of Medical Examiners.
2-2 (6) "Medical board" means the Texas State Board of
2-3 Medical Examiners.
2-4 (7) "Physician" means a licensee of the Texas State
2-5 Board of Medical Examiners.
2-6 SECTION 2. Section 6.04, Medical Practice Act (Article
2-7 4495b, Vernon's Texas Civil Statutes), is amended by amending
2-8 Subsections (b), (d), (g), and (h) and adding Subsections (i)
2-9 through (l) to read as follows:
2-10 (b) A person [The following persons] may not serve on the
2-11 acupuncture board if the[:]
2-12 [(1) a] person [who] is required to register as a
2-13 lobbyist under Chapter 305, Government Code, because of the
2-14 person's activities for compensation on behalf of a profession
2-15 related to the operation of the medical board or acupuncture board
2-16 [and its subsequent amendments; and]
2-17 [(2) a person who is currently employed by or serving
2-18 as president, vice-president, secretary, or treasurer of a
2-19 statewide or national organization incorporated for the purpose of
2-20 representing a health care profession in this state or the United
2-21 States].
2-22 (d) The governor shall designate a member of the acupuncture
2-23 board as the presiding officer of the acupuncture board to serve in
2-24 that capacity at the pleasure of the governor [from the members of
2-25 the acupuncture board].
3-1 (g) A person is not eligible for appointment as a public
3-2 member of the acupuncture board if the person or the person's
3-3 spouse:
3-4 (1) is registered, certified, or licensed by an
3-5 occupational regulatory agency in the field of health care;
3-6 (2) is employed by or participates in the management
3-7 of a business entity or other organization regulated by the medical
3-8 board or receiving funds from the medical board or acupuncture
3-9 board;
3-10 (3) owns or controls, directly or indirectly, more
3-11 than a 10 percent interest in a business entity or other
3-12 organization regulated by the medical board or acupuncture board or
3-13 receiving funds from the medical board; or
3-14 (4) uses or receives a substantial amount of tangible
3-15 goods, services, or funds from the medical board or acupuncture
3-16 board, other than compensation or reimbursement authorized by law
3-17 for the acupuncture board membership, attendance, or expenses.
3-18 (h) An officer, employee, or paid consultant of a Texas
3-19 trade association in the field of health care may not be a member
3-20 of the acupuncture board or an employee of the medical board who is
3-21 exempt from the state's position classification plan or is
3-22 compensated at or above the amount prescribed by the General
3-23 Appropriations Act for step 1, salary group 17, of the position
3-24 classification salary schedule.
3-25 (i) A person who is the spouse of an officer, manager, or
4-1 paid consultant of a Texas trade association in the field of health
4-2 care may not be a member of the acupuncture board and may not be an
4-3 employee of the medical board who is exempt from the state's
4-4 position classification plan or is compensated at or above the
4-5 amount prescribed by the General Appropriations Act for step 1,
4-6 salary group 17, of the position classification salary schedule.
4-7 (j) For the purposes of this section, a Texas trade
4-8 association is a nonprofit, cooperative, and voluntarily joined
4-9 association of business or professional competitors in this state
4-10 designed to assist its members and its industry or profession in
4-11 dealing with mutual business or professional problems and in
4-12 promoting their common interest [The acupuncture board is subject
4-13 to the open meetings law, the open records law, and the
4-14 Administrative Procedure Act and any subsequent amendments].
4-15 (k) Appointments to the acupuncture board shall be made
4-16 without regard to the race, color, disability, sex, religion, age,
4-17 or national origin of the appointees.
4-18 (l) [(h)] The acupuncture board is subject to Chapter 325,
4-19 Government Code (Texas Sunset Act). Unless continued in existence
4-20 as provided by that chapter, the board is abolished and this
4-21 subchapter expires September 1, 2005 [1997].
4-22 SECTION 3. Subchapter F, Medical Practice Act (Article
4-23 4495b, Vernon's Texas Civil Statutes), is amended by adding
4-24 Sections 6.041 and 6.042 to read as follows:
4-25 Sec. 6.041. GROUNDS FOR REMOVAL FROM ACUPUNCTURE BOARD.
5-1 (a) It is a ground for removal from the acupuncture board if a
5-2 member:
5-3 (1) does not have at the time of appointment the
5-4 qualifications required by Sections 6.04(a) and (g) of this Act;
5-5 (2) does not maintain during service on the
5-6 acupuncture board the qualifications required by Sections 6.04(a)
5-7 and (g) of this Act;
5-8 (3) violates a prohibition established by Section
5-9 6.04(b), (h), or (i) of this Act;
5-10 (4) cannot because of illness or disability discharge
5-11 the member's duties for a substantial part of the term for which
5-12 the member is appointed; or
5-13 (5) is absent from more than half of the regularly
5-14 scheduled acupuncture board meetings that the member is eligible to
5-15 attend during a calendar year unless the absence is excused by
5-16 majority vote of the acupuncture board.
5-17 (b) The validity of an action of the acupuncture board is
5-18 not affected by the fact that it is taken when a ground for removal
5-19 of an acupuncture board member exists.
5-20 (c) If the executive director of the medical board has
5-21 knowledge that a potential ground for removal of a member of the
5-22 acupuncture board exists, the executive director shall notify the
5-23 presiding officer of the acupuncture board of the potential ground.
5-24 The presiding officer shall then notify the governor and the
5-25 attorney general that a potential ground for removal exists. If
6-1 the potential ground for removal involves the presiding officer,
6-2 the executive director of the medical board shall notify the next
6-3 highest officer of the acupuncture board, who shall notify the
6-4 governor and the attorney general that a potential ground for
6-5 removal exists.
6-6 (d) The executive director of the medical board or the
6-7 executive director's designee shall provide to members of the
6-8 acupuncture board, as often as necessary, information regarding
6-9 their qualification for office under this subchapter and their
6-10 responsibilities under applicable laws relating to standards of
6-11 conduct for state officers.
6-12 Sec. 6.042. BOARD MEMBER TRAINING. (a) Before a member of
6-13 the acupuncture board may assume the member's duties and before the
6-14 member may be confirmed by the senate, the member must complete at
6-15 least one course of the training program established under this
6-16 section.
6-17 (b) A training program established under this section shall
6-18 provide information to the member regarding:
6-19 (1) the enabling legislation that created the
6-20 acupuncture board;
6-21 (2) the programs operated by the acupuncture board;
6-22 (3) the role and functions of the acupuncture board;
6-23 (4) the rules of the acupuncture board, with an
6-24 emphasis on the rules that relate to disciplinary and investigatory
6-25 authority;
7-1 (5) the current budget for the acupuncture board;
7-2 (6) the results of the most recent formal audit of the
7-3 acupuncture board;
7-4 (7) the requirements of the:
7-5 (A) open meetings law, Chapter 551, Government
7-6 Code;
7-7 (B) open records law, Chapter 552, Government
7-8 Code; and
7-9 (C) administrative procedure law, Chapter 2001,
7-10 Government Code;
7-11 (8) the requirements of the conflict of interest laws
7-12 and other laws relating to public officials; and
7-13 (9) any applicable ethics policies adopted by the
7-14 medical board or the Texas Ethics Commission.
7-15 SECTION 4. Section 6.05, Medical Practice Act (Article
7-16 4495b, Vernon's Texas Civil Statutes), is amended to read as
7-17 follows:
7-18 Sec. 6.05. POWERS AND DUTIES OF ACUPUNCTURE BOARD.
7-19 (a) Subject to the advice and approval of the medical board, the
7-20 acupuncture board shall:
7-21 (1) establish qualifications for an acupuncturist to
7-22 practice in this state;
7-23 (2) establish minimum educational and training
7-24 requirements necessary for the acupuncture board to recommend that
7-25 the medical board issue a license to practice acupuncture;
8-1 (3) administer an examination that is validated by
8-2 independent testing professionals for a license to practice
8-3 acupuncture;
8-4 (4) develop requirements for licensure by endorsement
8-5 of other states;
8-6 (5) prescribe the application form for a license to
8-7 practice acupuncture;
8-8 (6) make recommendations on applications for licenses
8-9 to practice acupuncture;
8-10 (7) develop and implement policies that provide the
8-11 public with a reasonable opportunity to appear before the
8-12 acupuncture board and to speak on any issue under the jurisdiction
8-13 of the acupuncture board [establish a procedure for reporting and
8-14 processing complaints relating to the practice of acupuncture under
8-15 this article];
8-16 (8) establish the requirements for a tutorial program
8-17 for students who have completed at least 48 semester hours of
8-18 college; [and]
8-19 (9) develop and implement policies that clearly
8-20 separate the policymaking responsibilities of the acupuncture board
8-21 and the management responsibilities of the executive director and
8-22 the staff of the medical board; and
8-23 (10) recommend additional rules as are necessary for
8-24 the administration and enforcement of this subchapter.
8-25 (b) The acupuncture board shall comply with federal and
9-1 state laws related to program and facility accessibility. The
9-2 executive director of the medical board shall prepare and maintain
9-3 a written plan that describes how a person who does not speak
9-4 English can be provided reasonable access to the acupuncture
9-5 board's programs and services.
9-6 (c) Notwithstanding Subsection (a) of this section, the
9-7 acupuncture board has no independent rulemaking authority.
9-8 SECTION 5. Subchapter F, Medical Practice Act (Article
9-9 4495b, Vernon's Texas Civil Statutes), is amended by adding
9-10 Sections 6.051, 6.071, 6.075, and 6.085 to read as follows:
9-11 Sec. 6.051. PUBLIC INTEREST INFORMATION; COMPLAINTS.
9-12 (a) The acupuncture board shall prepare information of public
9-13 interest describing the functions of the acupuncture board and the
9-14 procedures by which complaints are filed with and resolved by the
9-15 acupuncture board. The acupuncture board shall make the
9-16 information available to the public and appropriate state agencies.
9-17 (b) The acupuncture board by rule shall establish methods by
9-18 which consumers and service recipients are notified of the name,
9-19 mailing address, and telephone number of the acupuncture board for
9-20 the purpose of directing complaints under this subchapter to the
9-21 acupuncture board. The acupuncture board may provide for that
9-22 notification:
9-23 (1) on each registration form, application, or written
9-24 contract for services of an individual or entity regulated under
9-25 this subchapter;
10-1 (2) on a sign prominently displayed in the place of
10-2 business of each individual or entity regulated under this
10-3 subchapter; or
10-4 (3) in a bill for service provided by an individual or
10-5 entity regulated under this subchapter.
10-6 (c) The acupuncture board shall keep a file about each
10-7 written complaint filed with the acupuncture board under this
10-8 subchapter that the acupuncture board has authority to resolve.
10-9 The acupuncture board shall provide to the person filing the
10-10 complaint and the persons or entities complained about the
10-11 acupuncture board's policies and procedures pertaining to complaint
10-12 investigation and resolution. The acupuncture board, at least
10-13 quarterly and until final disposition of the complaint, shall
10-14 notify the person filing the complaint and the persons or entities
10-15 complained about of the status of the complaint unless the notice
10-16 would jeopardize an investigation.
10-17 (d) The acupuncture board shall keep information about each
10-18 complaint filed with the acupuncture board under this subchapter.
10-19 The information shall include:
10-20 (1) the date the complaint is received;
10-21 (2) the name of the complainant;
10-22 (3) the subject matter of the complaint;
10-23 (4) a record of all persons contacted in relation to
10-24 the complaint;
10-25 (5) a summary of the results of the review or
11-1 investigation of the complaint; and
11-2 (6) for complaints for which the acupuncture board
11-3 took no action, an explanation of the reason the complaint was
11-4 closed without action.
11-5 Sec. 6.071. EXAMINATION RESULTS. (a) Not later than the
11-6 30th day after the date on which a licensing examination is
11-7 administered under this subchapter, the acupuncture board shall
11-8 notify each examinee of the results of the examination. However,
11-9 if an examination is graded or reviewed by a national testing
11-10 service, the acupuncture board shall notify examinees of the
11-11 results of the examination not later than the 14th day after the
11-12 date on which the acupuncture board receives the results from the
11-13 testing service. If the notice of examination results graded or
11-14 reviewed by a national testing service will be delayed for longer
11-15 than 90 days after the examination date, the acupuncture board
11-16 shall notify the examinee of the reason for the delay before the
11-17 90th day. The acupuncture board may require a testing service to
11-18 notify examinees of the results of an examination.
11-19 (b) If requested in writing by a person who fails a
11-20 licensing examination administered under this subchapter, the
11-21 acupuncture board shall furnish the person with an analysis of the
11-22 person's performance on the examination if an analysis is available
11-23 from the national testing service.
11-24 Sec. 6.075. TEMPORARY LICENSE. (a) The acupuncture board
11-25 may, through the executive director of the medical board, issue a
12-1 temporary license to an applicant who:
12-2 (1) submits an application on a form prescribed by the
12-3 acupuncture board;
12-4 (2) has passed a national or other examination
12-5 recognized by the acupuncture board relating to the practice of
12-6 acupuncture;
12-7 (3) pays the appropriate fee prescribed by the medical
12-8 board;
12-9 (4) if licensed in another state, the District of
12-10 Columbia, or a territory of the United States, is in good standing
12-11 as an acupuncturist; and
12-12 (5) meets all the qualifications for a license under
12-13 this Act but is waiting for the next scheduled meeting of the
12-14 medical board for the license to be issued.
12-15 (b) A temporary license is valid for 100 days from the date
12-16 issued and may be extended only for another 30 days after the date
12-17 the initial temporary license expires.
12-18 Sec. 6.085. ADVERTISING. (a) The medical board may not
12-19 adopt rules under this subchapter restricting competitive bidding
12-20 or advertising by a license holder except to prohibit false,
12-21 misleading, or deceptive practices.
12-22 (b) In its rules to prohibit false, misleading, or deceptive
12-23 practices, the medical board may not include a rule that:
12-24 (1) restricts the use of any medium for advertising;
12-25 (2) restricts the use of a license holder's personal
13-1 appearance or voice in an advertisement;
13-2 (3) relates to the size or duration of an
13-3 advertisement by the license holder; or
13-4 (4) restricts the license holder's advertisement under
13-5 a trade name.
13-6 SECTION 6. Section 6.09, Medical Practice Act (Article
13-7 4495b, Vernon's Texas Civil Statutes), is amended by adding
13-8 Subsections (c) and (d) to read as follows:
13-9 (c) All money paid to the medical board under this
13-10 subchapter is subject to Subchapter F, Chapter 404, Government
13-11 Code.
13-12 (d) The medical board shall prepare annually a complete and
13-13 detailed written report accounting for all funds received and
13-14 disbursed by the medical board under this subchapter during the
13-15 preceding fiscal year. The annual report must meet the reporting
13-16 requirements applicable to financial reporting provided in the
13-17 General Appropriations Act.
13-18 SECTION 7. Section 6.10, Medical Practice Act (Article
13-19 4495b, Vernon's Texas Civil Statutes), is amended to read as
13-20 follows:
13-21 Sec. 6.10. ISSUANCE AND RENEWAL OF LICENSE. (a) After
13-22 consulting the acupuncture board, the medical board shall issue a
13-23 license to practice acupuncture in this state to a person who meets
13-24 the requirements of this subchapter and the rules adopted under
13-25 this subchapter.
14-1 (b) The medical board may waive any prerequisite to
14-2 obtaining a license for an applicant after reviewing the
14-3 applicant's credentials and determining that the applicant holds a
14-4 valid license from another state that has license requirements
14-5 substantially equivalent to those of this state.
14-6 (c) The medical board shall by rule provide for the annual
14-7 renewal of a license to practice acupuncture.
14-8 (d) A person who is otherwise eligible to renew a license
14-9 may renew an unexpired license by paying the required renewal fee
14-10 to the medical board before the expiration date of the license. A
14-11 person whose license has expired may not engage in activities that
14-12 require a license until the license has been renewed under the
14-13 provisions of this section.
14-14 (e) If the person's license has been expired for 90 days or
14-15 less, the person may renew the license by paying to the medical
14-16 board one and one-half times the required renewal fee.
14-17 (f) If the person's license has been expired for longer than
14-18 90 days but less than one year, the person may renew the license by
14-19 paying to the medical board two times the required renewal fee.
14-20 (g) If the person's license has been expired for one year or
14-21 longer, the person may not renew the license. The person may
14-22 obtain a new license by submitting to reexamination and complying
14-23 with the requirements and procedures for obtaining an original
14-24 license.
14-25 (h) If the person was licensed in this state, moved to
15-1 another state, and is currently licensed and has been in practice
15-2 in the other state for the two years preceding application, the
15-3 person may renew an expired license without reexamination. The
15-4 person must pay to the medical board a fee that is equal to two
15-5 times the required renewal fee for the license.
15-6 (i) At least 30 days before the expiration of a person's
15-7 license, the medical board shall send written notice of the
15-8 impending license expiration to the person at the license holder's
15-9 last known address according to the records of the medical board.
15-10 (j) The medical board by rule may adopt a system under which
15-11 licenses expire on various dates during the year. For the year in
15-12 which the license expiration date is changed, license fees shall be
15-13 prorated on a monthly basis so that each license holder pays only
15-14 that portion of the license fee that is allocable to the number of
15-15 months during which the license is valid. On renewal of the
15-16 license on the new expiration date, the total license renewal fee
15-17 is payable.
15-18 SECTION 8. Subchapter F, Medical Practice Act (Article
15-19 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
15-20 6.101 to read as follows:
15-21 Sec. 6.101. LICENSE HOLDER INFORMATION. (a) Each license
15-22 holder shall file with the board:
15-23 (1) the license holder's mailing address;
15-24 (2) the address of the license holder's residence;
15-25 (3) the mailing address of each of the license
16-1 holder's offices; and
16-2 (4) the address for the location of each of the
16-3 license holder's offices if that address is different from the
16-4 office's mailing address.
16-5 (b) A license holder shall:
16-6 (1) notify the acupuncture board of a change of the
16-7 license holder's residence or business address; and
16-8 (2) provide the acupuncture board with the license
16-9 holder's new address not later than the 30th day after the date the
16-10 address change occurs.
16-11 SECTION 9. Section 6.11, Medical Practice Act (Article
16-12 4495b, Vernon's Texas Civil Statutes), is amended, and Subsections
16-13 (b) through (g) of that section are redesignated as Section 6.115,
16-14 to read as follows:
16-15 Sec. 6.11. DENIAL OF LICENSE; DISCIPLINE OF LICENSE HOLDER.
16-16 (a) A license to practice acupuncture may be denied or, after
16-17 notice and hearing, suspended, probated, or revoked if the
16-18 applicant for a license or the holder of a license:
16-19 (1) uses drugs or intoxicating liquors to an extent
16-20 that affects the person's professional competence;
16-21 (2) obtains or attempts to obtain a license by fraud
16-22 or deception;
16-23 (3) has been [is] adjudged mentally incompetent by a
16-24 court of competent jurisdiction or has a mental or physical
16-25 condition that renders the person unable to perform safely as an
17-1 acupuncturist;
17-2 (4) has practiced [practices] acupuncture in a manner
17-3 detrimental to the public health and welfare;
17-4 (5) violates this subchapter or a rule adopted under
17-5 this subchapter;
17-6 (6) has been [is] convicted of a felony or a crime
17-7 involving moral turpitude; [or]
17-8 (7) holds the person [himself] out as a physician or
17-9 surgeon or any combination or derivative of those terms unless the
17-10 person is also licensed by the medical board as a physician or
17-11 surgeon;
17-12 (8) fraudulently or deceptively uses a license;
17-13 (9) has acted in an unprofessional or dishonorable
17-14 manner that is likely to deceive, defraud, or injure a member of
17-15 the public;
17-16 (10) has committed an act in violation of state law if
17-17 the act is connected with the person's practice as an
17-18 acupuncturist; or
17-19 (11) has had the person's license suspended, revoked,
17-20 or restricted, has had other disciplinary action taken by another
17-21 state regarding the person's practice as an acupuncturist, or has
17-22 had disciplinary action taken against the person by the uniformed
17-23 services of the United States based on acts by the license holder
17-24 similar to acts described in this section.
17-25 (b) A complaint, indictment, or conviction of a law
18-1 violation is not necessary for the enforcement of Subsection
18-2 (a)(10) of this section. Proof of the commission of the act while
18-3 in practice as an acupuncturist or under the guise of practice as
18-4 an acupuncturist is sufficient for action by the medical board
18-5 under this section.
18-6 (c) A certified copy of the record of the state or uniformed
18-7 services of the United States taking the action is conclusive
18-8 evidence of the action under Subsection (a)(11) of this section.
18-9 Sec. 6.115. SCOPE OF PRACTICE. (a) [(b)] Except as
18-10 provided by Subsection (b) [(c)] of this section, a license to
18-11 practice acupuncture shall be denied or, after notice and hearing,
18-12 revoked if the holder of a license has performed acupuncture on a
18-13 person who was not evaluated by a physician or dentist, as
18-14 appropriate, for the condition being treated within six months
18-15 before the date acupuncture was performed.
18-16 (b) [(c)] The holder of a license may perform acupuncture on
18-17 a person who was referred by a doctor licensed to practice
18-18 chiropractic by the Texas Board of Chiropractic Examiners if the
18-19 licensee commences the treatment within 30 days of the date of the
18-20 referral. The licensee shall refer the person to a physician after
18-21 performing acupuncture 20 times or for 30 days, whichever occurs
18-22 first, if no substantial improvement occurs in the person's
18-23 condition for which the referral was made.
18-24 (c) [(d)] The holder of a license must obtain reasonable
18-25 documentation that the evaluation required by Subsection (a) [(b)]
19-1 of this section has taken place. If the licensee is unable to
19-2 determine that an evaluation has taken place, the licensee must
19-3 obtain a written statement signed by the person on a form
19-4 prescribed by the acupuncture board that states that the person has
19-5 been evaluated by a physician within the prescribed time frame.
19-6 The form shall contain a clear statement that the person should be
19-7 evaluated by a physician for the condition being treated by the
19-8 licensee.
19-9 (d) [(e)] The medical board with advice from the acupuncture
19-10 board by rule may modify the requirement of the time frame or the
19-11 scope of the evaluation under Subsection (a) [(b)] of this section.
19-12 (e) [(f)] The medical board with advice from the acupuncture
19-13 board by rule may modify the requirement of the time frame for
19-14 commencement of treatment after referral by a chiropractor or the
19-15 number of treatments or days before referral to a physician is
19-16 required under Subsection (b) [(c)] of this section.
19-17 (f) [(g)] Notwithstanding Subsections (a) [(b)] and (b)
19-18 [(c)] of this section, an acupuncturist holding a current and valid
19-19 license may without a referral from a physician, dentist, or
19-20 chiropractor perform acupuncture on a person for smoking addiction,
19-21 weight loss, or, as established by the medical board with advice
19-22 from the acupuncture board by rule, substance abuse.
19-23 SECTION 10. Subchapter F, Medical Practice Act (Article
19-24 4495b, Vernon's Texas Civil Statutes), is amended by adding
19-25 Sections 6.116, 6.117, and 6.118 to read as follows:
20-1 Sec. 6.116. ADDITIONAL DISCIPLINARY AUTHORITY. In addition
20-2 to the authority under Section 6.11 of this Act, the acupuncture
20-3 board, on finding that an acupuncturist has committed an offense
20-4 described in Section 6.11 of this Act, may:
20-5 (1) require the acupuncturist to submit to the care,
20-6 counseling, or treatment of a health care practitioner designated
20-7 by the acupuncture board;
20-8 (2) stay enforcement of an order and place the
20-9 acupuncturist on probation with the acupuncture board retaining the
20-10 right to vacate the probationary stay and enforce the original
20-11 order for noncompliance with the terms of probation or impose any
20-12 other remedial measure or sanction authorized by this section;
20-13 (3) restore or reissue a license or remove any
20-14 disciplinary or corrective measure that the acupuncture board may
20-15 have imposed;
20-16 (4) order the acupuncturist to perform public service;
20-17 (5) limit the acupuncturist's practice to the areas
20-18 prescribed by the acupuncture board;
20-19 (6) require an acupuncturist to report regularly to
20-20 the acupuncture board on matters that are the basis of the
20-21 probation; or
20-22 (7) continue or review professional education until
20-23 the practitioner attains a degree of skill satisfactory to the
20-24 acupuncture board in those areas that are the basis of the
20-25 probation.
21-1 Sec. 6.117. SUSPENSION, REVOCATION, OR NONRENEWAL OF
21-2 LICENSE. If the medical board proposes to suspend, revoke, or
21-3 refuse to renew a person's license, the person is entitled to a
21-4 hearing conducted by the State Office of Administrative Hearings.
21-5 Proceedings for a disciplinary action are governed by the
21-6 administrative procedure law, Chapter 2001, Government Code. Rules
21-7 of practice adopted by the medical board under Section 2001.004,
21-8 Government Code, applicable to the proceedings for a disciplinary
21-9 action may not conflict with rules adopted by the State Office of
21-10 Administrative Hearings.
21-11 Sec. 6.118. REHABILITATION ORDER. (a) The acupuncture
21-12 board, through an agreed order or after a contested proceeding, may
21-13 impose a nondisciplinary rehabilitation order on any licensee or,
21-14 as a prerequisite for issuing a license, on any licensure applicant
21-15 based on one or more of the following:
21-16 (1) intemperate use of drugs or alcohol directly
21-17 resulting from habituation or addiction caused by medical care or
21-18 treatment provided by a physician;
21-19 (2) self-reported intemperate use of drugs or alcohol
21-20 during the last five years immediately preceding the report which
21-21 could adversely affect the reporter's ability to safely practice as
21-22 an acupuncturist, but only if the reporting individual has not
21-23 previously been the subject of a substance abuse related order of
21-24 the acupuncture board;
21-25 (3) judgment by a court of competent jurisdiction that
22-1 the individual is of unsound mind; or
22-2 (4) results from a mental or physical examination, or
22-3 admissions by the individual, indicating that the licensee or
22-4 applicant suffers from a potentially dangerous limitation or an
22-5 inability to safely practice as an acupuncturist with reasonable
22-6 skill and safety by reason of illness or as a result of any
22-7 physical or mental condition.
22-8 (b) A rehabilitation order entered pursuant to this section
22-9 shall be a nondisciplinary private order and shall contain findings
22-10 of fact and conclusions of law. A rehabilitation order, if entered
22-11 by agreement, shall be an agreed disposition or settlement
22-12 agreement for purposes of civil litigation and shall be exempt from
22-13 the open records law.
22-14 (c) A rehabilitation order entered pursuant to this section
22-15 may impose a revocation, cancellation, suspension, period of
22-16 probation or restriction, or any other terms and conditions
22-17 authorized under this Act or as otherwise agreed to by the
22-18 acupuncture board and the individual subject to the order.
22-19 (d) Violation of a rehabilitation order entered pursuant to
22-20 this section may result in disciplinary action under the provisions
22-21 of this Act for contested matters or pursuant to the terms of the
22-22 agreed order. A violation of a rehabilitation order may be grounds
22-23 for disciplinary action based on unprofessional or dishonorable
22-24 conduct or on any of the provisions of this Act which may apply to
22-25 the misconduct which resulted in violation of the rehabilitation
23-1 order.
23-2 (e) The rehabilitation orders entered pursuant to this
23-3 section shall be kept in a confidential file which shall be subject
23-4 to an independent audit by state auditors or private auditors
23-5 contracted with by the acupuncture board to perform such an audit.
23-6 Audits may be performed at any time at the direction of the
23-7 acupuncture board but shall be performed at least once every three
23-8 years. The audit results shall be reported in a manner that
23-9 maintains the confidentiality of all licensees who are subject to
23-10 rehabilitation orders and shall be a public record. The audit
23-11 shall be for the purposes of ensuring that only qualified licensees
23-12 are subject to rehabilitation orders.
23-13 SECTION 11. Subsection (b), Section 6.12, Medical Practice
23-14 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
23-15 read as follows:
23-16 (b) An offense under Subsection (a) of this section is a
23-17 felony of the third degree [Class A misdemeanor].
23-18 SECTION 12. Subchapter F, Medical Practice Act (Article
23-19 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
23-20 6.125 to read as follows:
23-21 Sec. 6.125. SUBPOENAS. (a) On behalf of the acupuncture
23-22 board, the executive director of the medical board or the presiding
23-23 officer of the acupuncture board may issue a subpoena or subpoena
23-24 duces tecum for purposes of:
23-25 (1) investigations or contested proceedings related
24-1 to:
24-2 (A) alleged misconduct by an acupuncturist; or
24-3 (B) an alleged violation of this Act or other
24-4 law related to practice as an acupuncturist or to the provision of
24-5 health care under the authority of this Act;
24-6 (2) a determination whether to issue, suspend,
24-7 restrict, revoke, or cancel a license authorized by this
24-8 subchapter; and
24-9 (3) a determination whether to deny or grant an
24-10 application for a license under this subchapter.
24-11 (b) Failure to timely comply with a subpoena issued under
24-12 this section is a ground for:
24-13 (1) disciplinary action by the acupuncture board or
24-14 any other licensing or regulatory agency with jurisdiction over the
24-15 individual or entity subject to the subpoena; and
24-16 (2) denial of a license application.
24-17 SECTION 13. (a) The change made by this Act to Section
24-18 6.12, Medical Practice Act (Article 4495b, Vernon's Texas Civil
24-19 Statutes), applies only to an offense committed on or after the
24-20 effective date of this Act. For purposes of this section, an
24-21 offense is committed before the effective date of this Act if any
24-22 element of the offense occurs before that date.
24-23 (b) An offense committed before the effective date of this
24-24 Act is governed by the law in effect when the offense was
24-25 committed, and the former law is continued in effect for that
25-1 purpose.
25-2 SECTION 14. The changes in law made by this Act in the
25-3 qualifications of, and the prohibitions applying to, members of the
25-4 Texas State Board of Acupuncture Examiners do not affect the
25-5 entitlement of a member serving on the board immediately before
25-6 September 1, 1997, to continue to carry out the functions of the
25-7 board for the remainder of the member's term. The changes in law
25-8 apply only to a member appointed on or after September 1, 1997.
25-9 This Act does not prohibit a person who is a member of the board on
25-10 September 1, 1997, from being reappointed to the board if the
25-11 person has the qualifications required for a member under
25-12 Subchapter F, Medical Practice Act (Article 4495b, Vernon's Texas
25-13 Civil Statutes), as amended by this Act.
25-14 SECTION 15. This Act takes effect September 1, 1997, and
25-15 applies only to a license issued or renewed by the Texas State
25-16 Board of Medical Examiners under Subchapter F, Medical Practice Act
25-17 (Article 4495b, Vernon's Texas Civil Statutes), on or after that
25-18 date.
25-19 SECTION 16. The importance of this legislation and the
25-20 crowded condition of the calendars in both houses create an
25-21 emergency and an imperative public necessity that the
25-22 constitutional rule requiring bills to be read on three several
25-23 days in each house be suspended, and this rule is hereby suspended.
25-24 COMMITTEE AMENDMENT NO. 1
25-25 Amend S.B. 361 by deleting SECTION 1, and renumbering
26-1 subsequent sections accordingly.
26-2 Berlanga
26-3 COMMITTEE AMENDMENT NO. 2
26-4 Amend S.B. 361 in Section 3 of the bill by striking the
26-5 proposed Section 6.042, Subchapter F, Medical Practice Act (Article
26-6 4495b, Vernon's Texas Civil Statutes) (engrossed bill, page 6, line
26-7 12 thru page 7, line 14), and substituting:
26-8 Sec. 6.042. BOARD MEMBER TRAINING. (a) To be eligible to
26-9 take office as a member of the acupuncture board, a person
26-10 appointed to the acupuncture board must complete at least one
26-11 course of a training program that complies with this section.
26-12 (b) The training program must provide information to the
26-13 person regarding:
26-14 (1) the enabling legislation that created the
26-15 acupuncture board and its policymaking body to which the person is
26-16 appointed to serve;
26-17 (2) the programs operated by the acupuncture board;
26-18 (3) the role and functions of the acupuncture board;
26-19 (4) the rules of the acupuncture board with an
26-20 emphasis on the rules that relate to disciplinary and investigatory
26-21 authority;
26-22 (5) the current budget for the acupuncture board;
26-23 (6) the results of the most recent formal audit of the
26-24 acupuncture board;
26-25 (7) the requirements of the:
27-1 (A) open meetings law, Chapter 551, Government
27-2 Code;
27-3 (B) open records law, Chapter 552, Government
27-4 Code; and
27-5 (C) administrative procedure law, Chapter 2001,
27-6 Government Code;
27-7 (8) the requirements of the conflict of interests laws
27-8 and other laws relating to public officials; and
27-9 (9) any applicable ethics policies adopted by the
27-10 medical board or the Texas Ethics Commission.
27-11 (c) A person appointed to the acupuncture board is entitled
27-12 to reimbursement for travel expenses incurred in attending the
27-13 training program, as provided by the General Appropriations Act and
27-14 as if the person were a member of the acupuncture board.
27-15 Berlanga
27-16 COMMITTEE AMENDMENT NO. 3
27-17 Amend S.B. 361 by adding a new SECTION 13 and renumbering
27-18 subsequent sections of the bill, as follows:
27-19 SECTION 13. Article 4512b, Vernon's Texas Civil Statutes, is
27-20 amended by amending Sec. 1 to read as follows:
27-21 Sec. 1. (a) A person shall be regarded as practicing
27-22 chiropractic within the meaning of this Act if the person:
27-23 (1) uses objective or subjective means to analyze, examine,
27-24 or evaluate the biomechanical condition of the spine and
27-25 musculoskeletal system of the human body;
28-1 (2) performs nonsurgical, nonincisive procedures, including
28-2 but not limited to adjustment and manipulation, in order to improve
28-3 the subluxation complex or the biomechanics of the musculoskeletal
28-4 system, and acupuncture as defined by Subchapter F, Sec. 6.02,
28-5 Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes)
28-6 upon completion of a training program at a school accredited by the
28-7 Council on Chiropractic Education and either the Central Education
28-8 Agency or the Southern Association of Colleges and Universities and
28-9 maintains certain continuing education requirements in acupuncture
28-10 practice as determined by the Chiropractic Board; or
28-11 (3) holds himself out to the public as a chiropractor of the
28-12 human body or uses the term "chiropractor," "chiropractic," "doctor
28-13 of chiropractic," "D.C.," or any derivative of those terms in
28-14 connection with his name.
28-15 Berlanga
28-16 COMMITTEE AMENDMENT NO. 4
28-17 Amend S.B. 361 by adding a new SECTION 14 and renumbering
28-18 subsequent sections as follows:
28-19 SECTION 14. Article 4512b, Vernon's Texas Civil Statutes,
28-20 Sec. 13a, subsection (b) is amended as follows:
28-21 Sec. 13a. (b) In this Act, "incisive or surgical procedure"
28-22 includes but is not limited to making an incision into any tissue,
28-23 cavity, or organ by any person or implement. It does not include
28-24 the use of a needle for the purpose of drawing blood for diagnostic
28-25 testing or for the purpose of performing acupuncture as defined by
29-1 Subchapter F, Sec. 6.02, Medical Practice Act (Article 4495b,
29-2 Vernon's Texas Civil Statutes).
29-3 Berlanga