1-1 By: Madla S.B. No. 361
1-2 (In the Senate - Filed February 28, 1997; March 5, 1997, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 14, 1997, reported favorably, as amended, by the following
1-5 vote: Yeas 11, Nays 0; April 14, 1997, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Madla
1-7 Amend S.B. No. 361 by inserting the following as SECTION 1 and
1-8 renumbering the remaining sections accordingly:
1-9 SECTION 1. Section 6.02, Medical Practice Act (Article
1-10 4495b, Vernon's Texas Civil Statutes), is amended to read as
1-11 follows:
1-12 Sec. 6.02. Definitions. In this subchapter:
1-13 (1) "Acupuncture" means:
1-14 (A) the nonsurgical, nonincisive insertion of an
1-15 acupuncture needle and the application of moxibustion to specific
1-16 areas of the human body as a primary mode of therapy to treat and
1-17 mitigate a human condition; and
1-18 (B) the administration of thermal or electrical
1-19 treatments or the recommendation of dietary guidelines, energy flow
1-20 exercise, or dietary or herbal supplements in conjunction with the
1-21 treatment described by Paragraph (A) of this subdivision.
1-22 (2) "Acupuncturist" means a person who practices
1-23 acupuncture.
1-24 (3) "Acupuncture board" means the Texas State Board of
1-25 Acupuncture Examiners.
1-26 (4) "Chiropractor" means a licensee of the Texas Board
1-27 of Chiropractic Examiners.
1-28 (5) "Executive director" means the executive director
1-29 of the Texas State Board of Medical Examiners.
1-30 (6) "Medical board" means the Texas State Board of
1-31 Medical Examiners.
1-32 (7) "Physician" means a licensee of the Texas State
1-33 Board of Medical Examiners.
1-34 COMMITTEE AMENDMENT NO. 2 By: Madla
1-35 Amend S.B. No. 361 by adding Section 6.118 to Subchapter F, Medical
1-36 Practice Act (Article 4495b, Vernon's Texas Civil Statutes), to
1-37 read as follows:
1-38 Sec. 6.118. REHABILITATION ORDER. (a) The acupuncture
1-39 board, through an agreed order or after a contested proceeding, may
1-40 impose a nondisciplinary rehabilitation order on any licensee or,
1-41 as a prerequisite for issuing a license, on any licensure applicant
1-42 based on one or more of the following:
1-43 (1) intemperate use of drugs or alcohol directly
1-44 resulting from habituation or addiction caused by medical care or
1-45 treatment provided by a physician;
1-46 (2) self-reported intemperate use of drugs or alcohol
1-47 during the last five years immediately preceding the report which
1-48 could adversely affect the reporter's ability to safely practice as
1-49 an acupuncturist, but only if the reporting individual has not
1-50 previously been the subject of a substance abuse related order of
1-51 the acupuncture board;
1-52 (3) judgment by a court of competent jurisdiction that
1-53 the individual is of unsound mind; or
1-54 (4) results from a mental or physical examination, or
1-55 admissions by the individual, indicating that the licensee or
1-56 applicant suffers from a potentially dangerous limitation or an
1-57 inability to safely practice as an acupuncturist with reasonable
1-58 skill and safety by reason of illness or as a result of any
1-59 physical or mental condition.
1-60 (b) A rehabilitation order entered pursuant to this section
1-61 shall be a nondisciplinary private order and shall contain findings
1-62 of fact and conclusions of law. A rehabilitation order, if entered
1-63 by agreement, shall be an agreed disposition or settlement
1-64 agreement for purposes of civil litigation and shall be exempt from
2-1 the open records law.
2-2 (c) A rehabilitation order entered pursuant to this section
2-3 may impose a revocation, cancellation, suspension, period of
2-4 probation or restriction, or any other terms and conditions
2-5 authorized under this Act or as otherwise agreed to by the
2-6 acupuncture board and the individual subject to the order.
2-7 (d) Violation of a rehabilitation order entered pursuant to
2-8 this section may result in disciplinary action under the provisions
2-9 of this Act for contested matters or pursuant to the terms of the
2-10 agreed order. A violation of a rehabilitation order may be grounds
2-11 for disciplinary action based on unprofessional or dishonorable
2-12 conduct or on any of the provisions of this Act which may apply to
2-13 the misconduct which resulted in violation of the rehabilitation
2-14 order.
2-15 (e) The rehabilitation orders entered pursuant to this
2-16 section shall be kept in a confidential file which shall be subject
2-17 to an independent audit by state auditors or private auditors
2-18 contracted with by the acupuncture board to perform such an audit.
2-19 Audits may be performed at any time at the direction of the
2-20 acupuncture board but shall be performed at least once every three
2-21 years. The audit results shall be reported in a manner that
2-22 maintains the confidentiality of all licensees who are subject to
2-23 rehabilitation orders and shall be a public record. The audit
2-24 shall be for the purposes of ensuring that only qualified licensees
2-25 are subject to rehabilitation orders.
2-26 COMMITTEE AMENDMENT NO. 3 By: Madla
2-27 Amend S.B. No. 361 in Section 6.075 (filed version, page 6, lines
2-28 26 through 42) by striking the section in its entirety and
2-29 inserting the following:
2-30 Sec. 6.075. TEMPORARY LICENSE. (a) The acupuncture board
2-31 may, through the executive director of the medical board, issue a
2-32 temporary license to an applicant who:
2-33 (1) submits an application on a form prescribed by the
2-34 acupuncture board;
2-35 (2) has passed a national or other examination
2-36 recognized by the acupuncture board relating to the practice of
2-37 acupuncture;
2-38 (3) pays the appropriate fee prescribed by the medical
2-39 board;
2-40 (4) if licensed in another state, the District of
2-41 Columbia, or a territory of the United States, is in good standing
2-42 as an acupuncturist; and
2-43 (5) meets all the qualifications for a license under
2-44 this Act but is waiting for the next scheduled meeting of the
2-45 medical board for the license to be issued.
2-46 (b) A temporary license is valid for 100 days from the date
2-47 issued and may be extended only for another 30 days after the date
2-48 the initial temporary license expires.
2-49 A BILL TO BE ENTITLED
2-50 AN ACT
2-51 relating to the continuation and functions of the Texas State Board
2-52 of Acupuncture Examiners; providing penalties.
2-53 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
2-54 SECTION 1. Section 6.04, Medical Practice Act (Article
2-55 4495b, Vernon's Texas Civil Statutes), is amended by amending
2-56 Subsections (b), (d), (g), and (h) and adding Subsections (i)
2-57 through (l) to read as follows:
2-58 (b) A person [The following persons] may not serve on the
2-59 acupuncture board if the[:]
2-60 [(1) a] person [who] is required to register as a
2-61 lobbyist under Chapter 305, Government Code, because of the
2-62 person's activities for compensation on behalf of a profession
2-63 related to the operation of the medical board or acupuncture board
2-64 [and its subsequent amendments; and]
2-65 [(2) a person who is currently employed by or serving
2-66 as president, vice-president, secretary, or treasurer of a
2-67 statewide or national organization incorporated for the purpose of
2-68 representing a health care profession in this state or the United
2-69 States].
3-1 (d) The governor shall designate a member of the acupuncture
3-2 board as the presiding officer of the acupuncture board to serve in
3-3 that capacity at the pleasure of the governor [from the members of
3-4 the acupuncture board].
3-5 (g) A person is not eligible for appointment as a public
3-6 member of the acupuncture board if the person or the person's
3-7 spouse:
3-8 (1) is registered, certified, or licensed by an
3-9 occupational regulatory agency in the field of health care;
3-10 (2) is employed by or participates in the management
3-11 of a business entity or other organization regulated by the medical
3-12 board or receiving funds from the medical board or acupuncture
3-13 board;
3-14 (3) owns or controls, directly or indirectly, more
3-15 than a 10 percent interest in a business entity or other
3-16 organization regulated by the medical board or acupuncture board or
3-17 receiving funds from the medical board; or
3-18 (4) uses or receives a substantial amount of tangible
3-19 goods, services, or funds from the medical board or acupuncture
3-20 board, other than compensation or reimbursement authorized by law
3-21 for the acupuncture board membership, attendance, or expenses.
3-22 (h) An officer, employee, or paid consultant of a Texas
3-23 trade association in the field of health care may not be a member
3-24 of the acupuncture board or an employee of the medical board who is
3-25 exempt from the state's position classification plan or is
3-26 compensated at or above the amount prescribed by the General
3-27 Appropriations Act for step 1, salary group 17, of the position
3-28 classification salary schedule.
3-29 (i) A person who is the spouse of an officer, manager, or
3-30 paid consultant of a Texas trade association in the field of health
3-31 care may not be a member of the acupuncture board and may not be an
3-32 employee of the medical board who is exempt from the state's
3-33 position classification plan or is compensated at or above the
3-34 amount prescribed by the General Appropriations Act for step 1,
3-35 salary group 17, of the position classification salary schedule.
3-36 (j) For the purposes of this section, a Texas trade
3-37 association is a nonprofit, cooperative, and voluntarily joined
3-38 association of business or professional competitors in this state
3-39 designed to assist its members and its industry or profession in
3-40 dealing with mutual business or professional problems and in
3-41 promoting their common interest [The acupuncture board is subject
3-42 to the open meetings law, the open records law, and the
3-43 Administrative Procedure Act and any subsequent amendments].
3-44 (k) Appointments to the acupuncture board shall be made
3-45 without regard to the race, color, disability, sex, religion, age,
3-46 or national origin of the appointees.
3-47 (l) [(h)] The acupuncture board is subject to Chapter 325,
3-48 Government Code (Texas Sunset Act). Unless continued in existence
3-49 as provided by that chapter, the board is abolished and this
3-50 subchapter expires September 1, 2005 [1997].
3-51 SECTION 2. Subchapter F, Medical Practice Act (Article
3-52 4495b, Vernon's Texas Civil Statutes), is amended by adding
3-53 Sections 6.041 and 6.042 to read as follows:
3-54 Sec. 6.041. GROUNDS FOR REMOVAL FROM ACUPUNCTURE BOARD.
3-55 (a) It is a ground for removal from the acupuncture board if a
3-56 member:
3-57 (1) does not have at the time of appointment the
3-58 qualifications required by Sections 6.04(a) and (g) of this Act;
3-59 (2) does not maintain during service on the
3-60 acupuncture board the qualifications required by Sections 6.04(a)
3-61 and (g) of this Act;
3-62 (3) violates a prohibition established by Section
3-63 6.04(b), (h), or (i) of this Act;
3-64 (4) cannot because of illness or disability discharge
3-65 the member's duties for a substantial part of the term for which
3-66 the member is appointed; or
3-67 (5) is absent from more than half of the regularly
3-68 scheduled acupuncture board meetings that the member is eligible to
3-69 attend during a calendar year unless the absence is excused by
4-1 majority vote of the acupuncture board.
4-2 (b) The validity of an action of the acupuncture board is
4-3 not affected by the fact that it is taken when a ground for removal
4-4 of an acupuncture board member exists.
4-5 (c) If the executive director of the medical board has
4-6 knowledge that a potential ground for removal of a member of the
4-7 acupuncture board exists, the executive director shall notify the
4-8 presiding officer of the acupuncture board of the potential ground.
4-9 The presiding officer shall then notify the governor and the
4-10 attorney general that a potential ground for removal exists. If
4-11 the potential ground for removal involves the presiding officer,
4-12 the executive director of the medical board shall notify the next
4-13 highest officer of the acupuncture board, who shall notify the
4-14 governor and the attorney general that a potential ground for
4-15 removal exists.
4-16 (d) The executive director of the medical board or the
4-17 executive director's designee shall provide to members of the
4-18 acupuncture board, as often as necessary, information regarding
4-19 their qualification for office under this subchapter and their
4-20 responsibilities under applicable laws relating to standards of
4-21 conduct for state officers.
4-22 Sec. 6.042. BOARD MEMBER TRAINING. (a) Before a member of
4-23 the acupuncture board may assume the member's duties and before the
4-24 member may be confirmed by the senate, the member must complete at
4-25 least one course of the training program established under this
4-26 section.
4-27 (b) A training program established under this section shall
4-28 provide information to the member regarding:
4-29 (1) the enabling legislation that created the
4-30 acupuncture board;
4-31 (2) the programs operated by the acupuncture board;
4-32 (3) the role and functions of the acupuncture board;
4-33 (4) the rules of the acupuncture board with an
4-34 emphasis on the rules that relate to disciplinary and investigatory
4-35 authority;
4-36 (5) the current budget for the acupuncture board;
4-37 (6) the results of the most recent formal audit of the
4-38 acupuncture board;
4-39 (7) the requirements of the:
4-40 (A) open meetings law, Chapter 551, Government
4-41 Code;
4-42 (B) open records law, Chapter 552, Government
4-43 Code; and
4-44 (C) administrative procedure law, Chapter 2001,
4-45 Government Code;
4-46 (8) the requirements of the conflict of interest laws
4-47 and other laws relating to public officials; and
4-48 (9) any applicable ethics policies adopted by the
4-49 medical board or the Texas Ethics Commission.
4-50 SECTION 3. Section 6.05, Medical Practice Act (Article
4-51 4495b, Vernon's Texas Civil Statutes), is amended to read as
4-52 follows:
4-53 Sec. 6.05. POWERS AND DUTIES OF ACUPUNCTURE BOARD.
4-54 (a) Subject to the advice and approval of the medical board, the
4-55 acupuncture board shall:
4-56 (1) establish qualifications for an acupuncturist to
4-57 practice in this state;
4-58 (2) establish minimum educational and training
4-59 requirements necessary for the acupuncture board to recommend that
4-60 the medical board issue a license to practice acupuncture;
4-61 (3) administer an examination that is validated by
4-62 independent testing professionals for a license to practice
4-63 acupuncture;
4-64 (4) develop requirements for licensure by endorsement
4-65 of other states;
4-66 (5) prescribe the application form for a license to
4-67 practice acupuncture;
4-68 (6) make recommendations on applications for licenses
4-69 to practice acupuncture;
5-1 (7) develop and implement policies that provide the
5-2 public with a reasonable opportunity to appear before the
5-3 acupuncture board and to speak on any issue under the jurisdiction
5-4 of the acupuncture board [establish a procedure for reporting and
5-5 processing complaints relating to the practice of acupuncture under
5-6 this article];
5-7 (8) establish the requirements for a tutorial program
5-8 for students who have completed at least 48 semester hours of
5-9 college; [and]
5-10 (9) develop and implement policies that clearly
5-11 separate the policymaking responsibilities of the acupuncture board
5-12 and the management responsibilities of the executive director and
5-13 the staff of the medical board; and
5-14 (10) recommend additional rules as are necessary for
5-15 the administration and enforcement of this subchapter.
5-16 (b) The acupuncture board shall comply with federal and
5-17 state laws related to program and facility accessibility. The
5-18 executive director of the medical board shall prepare and maintain
5-19 a written plan that describes how a person who does not speak
5-20 English can be provided reasonable access to the acupuncture
5-21 board's programs and services.
5-22 (c) Notwithstanding Subsection (a) of this section, the
5-23 acupuncture board has no independent rulemaking authority.
5-24 SECTION 4. Subchapter F, Medical Practice Act (Article
5-25 4495b, Vernon's Texas Civil Statutes), is amended by adding
5-26 Sections 6.051, 6.071, 6.075, and 6.085 to read as follows:
5-27 Sec. 6.051. PUBLIC INTEREST INFORMATION; COMPLAINTS.
5-28 (a) The acupuncture board shall prepare information of public
5-29 interest describing the functions of the acupuncture board and the
5-30 procedures by which complaints are filed with and resolved by the
5-31 acupuncture board. The acupuncture board shall make the
5-32 information available to the public and appropriate state agencies.
5-33 (b) The acupuncture board by rule shall establish methods by
5-34 which consumers and service recipients are notified of the name,
5-35 mailing address, and telephone number of the acupuncture board for
5-36 the purpose of directing complaints under this subchapter to the
5-37 acupuncture board. The acupuncture board may provide for that
5-38 notification:
5-39 (1) on each registration form, application, or written
5-40 contract for services of an individual or entity regulated under
5-41 this subchapter;
5-42 (2) on a sign prominently displayed in the place of
5-43 business of each individual or entity regulated under this
5-44 subchapter; or
5-45 (3) in a bill for service provided by an individual or
5-46 entity regulated under this subchapter.
5-47 (c) The acupuncture board shall keep a file about each
5-48 written complaint filed with the acupuncture board under this
5-49 subchapter that the acupuncture board has authority to resolve.
5-50 The acupuncture board shall provide to the person filing the
5-51 complaint and the persons or entities complained about the
5-52 acupuncture board's policies and procedures pertaining to complaint
5-53 investigation and resolution. The acupuncture board, at least
5-54 quarterly and until final disposition of the complaint, shall
5-55 notify the person filing the complaint and the persons or entities
5-56 complained about of the status of the complaint unless the notice
5-57 would jeopardize an investigation.
5-58 (d) The acupuncture board shall keep information about each
5-59 complaint filed with the acupuncture board under this subchapter.
5-60 The information shall include:
5-61 (1) the date the complaint is received;
5-62 (2) the name of the complainant;
5-63 (3) the subject matter of the complaint;
5-64 (4) a record of all persons contacted in relation to
5-65 the complaint;
5-66 (5) a summary of the results of the review or
5-67 investigation of the complaint; and
5-68 (6) for complaints for which the acupuncture board
5-69 took no action, an explanation of the reason the complaint was
6-1 closed without action.
6-2 Sec. 6.071. EXAMINATION RESULTS. (a) Not later than the
6-3 30th day after the date on which a licensing examination is
6-4 administered under this subchapter, the acupuncture board shall
6-5 notify each examinee of the results of the examination. However,
6-6 if an examination is graded or reviewed by a national testing
6-7 service, the acupuncture board shall notify examinees of the
6-8 results of the examination not later than the 14th day after the
6-9 date on which the acupuncture board receives the results from the
6-10 testing service. If the notice of examination results graded or
6-11 reviewed by a national testing service will be delayed for longer
6-12 than 90 days after the examination date, the acupuncture board
6-13 shall notify the examinee of the reason for the delay before the
6-14 90th day. The acupuncture board may require a testing service to
6-15 notify examinees of the results of an examination.
6-16 (b) If requested in writing by a person who fails a
6-17 licensing examination administered under this subchapter, the
6-18 acupuncture board shall furnish the person with an analysis of the
6-19 person's performance on the examination if an analysis is available
6-20 from the national testing service.
6-21 Sec. 6.075. TEMPORARY LICENSE. (a) The acupuncture board
6-22 may issue a temporary license to an applicant who:
6-23 (1) is licensed in good standing as an acupuncturist
6-24 for at least two years in another state, the District of Columbia,
6-25 or a territory of the United States that has licensing requirements
6-26 that are substantially equivalent to the requirements of this
6-27 subchapter;
6-28 (2) submits an application on a form prescribed by the
6-29 acupuncture board;
6-30 (3) has passed a national or other examination
6-31 recognized by the acupuncture board relating to the practice of
6-32 acupuncture; and
6-33 (4) pays the appropriate fee prescribed by the medical
6-34 board.
6-35 (b) A temporary license is valid for 100 days from the date
6-36 issued and may be extended only for another 30 days after the date
6-37 the initial temporary license expires.
6-38 Sec. 6.085. ADVERTISING. (a) The medical board may not
6-39 adopt rules under this subchapter restricting competitive bidding
6-40 or advertising by a license holder except to prohibit false,
6-41 misleading, or deceptive practices.
6-42 (b) In its rules to prohibit false, misleading, or deceptive
6-43 practices, the medical board may not include a rule that:
6-44 (1) restricts the use of any medium for advertising;
6-45 (2) restricts the use of a license holder's personal
6-46 appearance or voice in an advertisement;
6-47 (3) relates to the size or duration of an
6-48 advertisement by the license holder; or
6-49 (4) restricts the license holder's advertisement under
6-50 a trade name.
6-51 SECTION 5. Section 6.09, Medical Practice Act (Article
6-52 4495b, Vernon's Texas Civil Statutes), is amended by adding
6-53 Subsections (c) and (d) to read as follows:
6-54 (c) All money paid to the medical board under this
6-55 subchapter is subject to Subchapter F, Chapter 404, Government
6-56 Code.
6-57 (d) The medical board shall prepare annually a complete and
6-58 detailed written report accounting for all funds received and
6-59 disbursed by the medical board under this subchapter during the
6-60 preceding fiscal year. The annual report must meet the reporting
6-61 requirements applicable to financial reporting provided in the
6-62 General Appropriations Act.
6-63 SECTION 6. Section 6.10, Medical Practice Act (Article
6-64 4495b, Vernon's Texas Civil Statutes), is amended to read as
6-65 follows:
6-66 Sec. 6.10. ISSUANCE AND RENEWAL OF LICENSE. (a) After
6-67 consulting the acupuncture board, the medical board shall issue a
6-68 license to practice acupuncture in this state to a person who meets
6-69 the requirements of this subchapter and the rules adopted under
7-1 this subchapter.
7-2 (b) The medical board may waive any prerequisite to
7-3 obtaining a license for an applicant after reviewing the
7-4 applicant's credentials and determining that the applicant holds a
7-5 valid license from another state that has license requirements
7-6 substantially equivalent to those of this state.
7-7 (c) The medical board shall by rule provide for the annual
7-8 renewal of a license to practice acupuncture.
7-9 (d) A person who is otherwise eligible to renew a license
7-10 may renew an unexpired license by paying the required renewal fee
7-11 to the medical board before the expiration date of the license. A
7-12 person whose license has expired may not engage in activities that
7-13 require a license until the license has been renewed under the
7-14 provisions of this section.
7-15 (e) If the person's license has been expired for 90 days or
7-16 less, the person may renew the license by paying to the medical
7-17 board one and one-half times the required renewal fee.
7-18 (f) If the person's license has been expired for longer than
7-19 90 days but less than one year, the person may renew the license by
7-20 paying to the medical board two times the required renewal fee.
7-21 (g) If the person's license has been expired for one year or
7-22 longer, the person may not renew the license. The person may
7-23 obtain a new license by submitting to reexamination and complying
7-24 with the requirements and procedures for obtaining an original
7-25 license.
7-26 (h) If the person was licensed in this state, moved to
7-27 another state, and is currently licensed and has been in practice
7-28 in the other state for the two years preceding application, the
7-29 person may renew an expired license without reexamination. The
7-30 person must pay to the medical board a fee that is equal to two
7-31 times the required renewal fee for the license.
7-32 (i) At least 30 days before the expiration of a person's
7-33 license, the medical board shall send written notice of the
7-34 impending license expiration to the person at the license holder's
7-35 last known address according to the records of the medical board.
7-36 (j) The medical board by rule may adopt a system under which
7-37 licenses expire on various dates during the year. For the year in
7-38 which the license expiration date is changed, license fees shall be
7-39 prorated on a monthly basis so that each license holder pays only
7-40 that portion of the license fee that is allocable to the number of
7-41 months during which the license is valid. On renewal of the
7-42 license on the new expiration date, the total license renewal fee
7-43 is payable.
7-44 SECTION 7. Subchapter F, Medical Practice Act (Article
7-45 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
7-46 6.101 to read as follows:
7-47 Sec. 6.101. LICENSE HOLDER INFORMATION. (a) Each license
7-48 holder shall file with the board:
7-49 (1) the license holder's mailing address;
7-50 (2) the address of the license holder's residence;
7-51 (3) the mailing address of each of the license
7-52 holder's offices; and
7-53 (4) the address for the location of each of the
7-54 license holder's offices if that address is different from the
7-55 office's mailing address.
7-56 (b) A license holder shall:
7-57 (1) notify the acupuncture board of a change of the
7-58 license holder's residence or business address; and
7-59 (2) provide the acupuncture board with the license
7-60 holder's new address not later than the 30th day after the date the
7-61 address change occurs.
7-62 SECTION 8. Section 6.11, Medical Practice Act (Article
7-63 4495b, Vernon's Texas Civil Statutes), is amended, and Subsections
7-64 (b) through (g) of that section are redesignated as Section 6.115,
7-65 to read as follows:
7-66 Sec. 6.11. DENIAL OF LICENSE; DISCIPLINE OF LICENSE HOLDER.
7-67 (a) A license to practice acupuncture may be denied or, after
7-68 notice and hearing, suspended, probated, or revoked if the
7-69 applicant for a license or the holder of a license:
8-1 (1) uses drugs or intoxicating liquors to an extent
8-2 that affects the person's professional competence;
8-3 (2) obtains or attempts to obtain a license by fraud
8-4 or deception;
8-5 (3) has been [is] adjudged mentally incompetent by a
8-6 court of competent jurisdiction or has a mental or physical
8-7 condition that renders the person unable to perform safely as an
8-8 acupuncturist;
8-9 (4) has practiced [practices] acupuncture in a manner
8-10 detrimental to the public health and welfare;
8-11 (5) violates this subchapter or a rule adopted under
8-12 this subchapter;
8-13 (6) has been [is] convicted of a felony or a crime
8-14 involving moral turpitude; [or]
8-15 (7) holds the person [himself] out as a physician or
8-16 surgeon or any combination or derivative of those terms unless the
8-17 person is also licensed by the medical board as a physician or
8-18 surgeon;
8-19 (8) fraudulently or deceptively uses a license;
8-20 (9) has acted in an unprofessional or dishonorable
8-21 manner that is likely to deceive, defraud, or injure a member of
8-22 the public;
8-23 (10) has committed an act in violation of state law if
8-24 the act is connected with the person's practice as an
8-25 acupuncturist; or
8-26 (11) has had the person's license suspended, revoked,
8-27 or restricted, has had other disciplinary action taken by another
8-28 state regarding the person's practice as an acupuncturist, or has
8-29 had disciplinary action taken against the person by the uniformed
8-30 services of the United States based on acts by the license holder
8-31 similar to acts described in this section.
8-32 (b) A complaint, indictment, or conviction of a law
8-33 violation is not necessary for the enforcement of Subsection
8-34 (a)(10) of this section. Proof of the commission of the act while
8-35 in practice as an acupuncturist or under the guise of practice as
8-36 an acupuncturist is sufficient for action by the medical board
8-37 under this section.
8-38 (c) A certified copy of the record of the state or uniformed
8-39 services of the United States taking the action is conclusive
8-40 evidence of the action under Subsection (a)(11) of this section.
8-41 Sec. 6.115. SCOPE OF PRACTICE. (a) [(b)] Except as
8-42 provided by Subsection (b) [(c)] of this section, a license to
8-43 practice acupuncture shall be denied or, after notice and hearing,
8-44 revoked if the holder of a license has performed acupuncture on a
8-45 person who was not evaluated by a physician or dentist, as
8-46 appropriate, for the condition being treated within six months
8-47 before the date acupuncture was performed.
8-48 (b) [(c)] The holder of a license may perform acupuncture on
8-49 a person who was referred by a doctor licensed to practice
8-50 chiropractic by the Texas Board of Chiropractic Examiners if the
8-51 licensee commences the treatment within 30 days of the date of the
8-52 referral. The licensee shall refer the person to a physician after
8-53 performing acupuncture 20 times or for 30 days, whichever occurs
8-54 first, if no substantial improvement occurs in the person's
8-55 condition for which the referral was made.
8-56 (c) [(d)] The holder of a license must obtain reasonable
8-57 documentation that the evaluation required by Subsection (a) [(b)]
8-58 of this section has taken place. If the licensee is unable to
8-59 determine that an evaluation has taken place, the licensee must
8-60 obtain a written statement signed by the person on a form
8-61 prescribed by the acupuncture board that states that the person has
8-62 been evaluated by a physician within the prescribed time frame.
8-63 The form shall contain a clear statement that the person should be
8-64 evaluated by a physician for the condition being treated by the
8-65 licensee.
8-66 (d) [(e)] The medical board with advice from the acupuncture
8-67 board by rule may modify the requirement of the time frame or the
8-68 scope of the evaluation under Subsection (a) [(b)] of this section.
8-69 (e) [(f)] The medical board with advice from the acupuncture
9-1 board by rule may modify the requirement of the time frame for
9-2 commencement of treatment after referral by a chiropractor or the
9-3 number of treatments or days before referral to a physician is
9-4 required under Subsection (b) [(c)] of this section.
9-5 (f) [(g)] Notwithstanding Subsections (a) [(b)] and (b)
9-6 [(c)] of this section, an acupuncturist holding a current and valid
9-7 license may without a referral from a physician, dentist, or
9-8 chiropractor perform acupuncture on a person for smoking addiction,
9-9 weight loss, or, as established by the medical board with advice
9-10 from the acupuncture board by rule, substance abuse.
9-11 SECTION 9. Subchapter F, Medical Practice Act (Article
9-12 4495b, Vernon's Texas Civil Statutes), is amended by adding
9-13 Sections 6.116 and 6.117 to read as follows:
9-14 Sec. 6.116. ADDITIONAL DISCIPLINARY AUTHORITY. In addition
9-15 to the authority under Section 6.11 of this Act, the acupuncture
9-16 board, on finding that an acupuncturist has committed an offense
9-17 described in Section 6.11 of this Act, may:
9-18 (1) require the acupuncturist to submit to the care,
9-19 counseling, or treatment of a health care practitioner designated
9-20 by the acupuncture board;
9-21 (2) stay enforcement of an order and place the
9-22 acupuncturist on probation with the acupuncture board retaining the
9-23 right to vacate the probationary stay and enforce the original
9-24 order for noncompliance with the terms of probation or impose any
9-25 other remedial measure or sanction authorized by this section;
9-26 (3) restore or reissue a license or remove any
9-27 disciplinary or corrective measure that the acupuncture board may
9-28 have imposed;
9-29 (4) order the acupuncturist to perform public service;
9-30 (5) limit the acupuncturist's practice to the areas
9-31 prescribed by the acupuncture board;
9-32 (6) require an acupuncturist to report regularly to
9-33 the acupuncture board on matters that are the basis of the
9-34 probation; or
9-35 (7) continue or review professional education until
9-36 the practitioner attains a degree of skill satisfactory to the
9-37 acupuncture board in those areas that are the basis of the
9-38 probation.
9-39 Sec. 6.117. SUSPENSION, REVOCATION, OR NONRENEWAL OF
9-40 LICENSE. If the medical board proposes to suspend, revoke, or
9-41 refuse to renew a person's license, the person is entitled to a
9-42 hearing conducted by the State Office of Administrative Hearings.
9-43 Proceedings for a disciplinary action are governed by the
9-44 administrative procedure law, Chapter 2001, Government Code. Rules
9-45 of practice adopted by the medical board under Section 2001.004,
9-46 Government Code, applicable to the proceedings for a disciplinary
9-47 action may not conflict with rules adopted by the State Office of
9-48 Administrative Hearings.
9-49 SECTION 10. Subsection (b), Section 6.12, Medical Practice
9-50 Act (Article 4495b, Vernon's Texas Civil Statutes), is amended to
9-51 read as follows:
9-52 (b) An offense under Subsection (a) of this section is a
9-53 felony of the third degree [Class A misdemeanor].
9-54 SECTION 11. Subchapter F, Medical Practice Act (Article
9-55 4495b, Vernon's Texas Civil Statutes), is amended by adding Section
9-56 6.125 to read as follows:
9-57 Sec. 6.125. SUBPOENAS. (a) On behalf of the acupuncture
9-58 board, the executive director of the medical board or the presiding
9-59 officer of the acupuncture board may issue a subpoena or subpoena
9-60 duces tecum for purposes of:
9-61 (1) investigations or contested proceedings related
9-62 to:
9-63 (A) alleged misconduct by an acupuncturist; or
9-64 (B) an alleged violation of this Act or other
9-65 law related to practice as an acupuncturist or to the provision of
9-66 health care under the authority of this Act;
9-67 (2) a determination whether to issue, suspend,
9-68 restrict, revoke, or cancel a license authorized by this
9-69 subchapter; and
10-1 (3) a determination whether to deny or grant an
10-2 application for a license under this subchapter.
10-3 (b) Failure to timely comply with a subpoena issued under
10-4 this section is a ground for:
10-5 (1) disciplinary action by the acupuncture board or
10-6 any other licensing or regulatory agency with jurisdiction over the
10-7 individual or entity subject to the subpoena; and
10-8 (2) denial of a license application.
10-9 SECTION 12. (a) The change made by this Act to Section
10-10 6.12, Medical Practice Act (Article 4495b, Vernon's Texas Civil
10-11 Statutes), applies only to an offense committed on or after the
10-12 effective date of this Act. For purposes of this section, an
10-13 offense is committed before the effective date of this Act if any
10-14 element of the offense occurs before that date.
10-15 (b) An offense committed before the effective date of this
10-16 Act is governed by the law in effect when the offense was
10-17 committed, and the former law is continued in effect for that
10-18 purpose.
10-19 SECTION 13. The changes in law made by this Act in the
10-20 qualifications of, and the prohibitions applying to, members of the
10-21 Texas State Board of Acupuncture Examiners do not affect the
10-22 entitlement of a member serving on the board immediately before
10-23 September 1, 1997, to continue to carry out the functions of the
10-24 board for the remainder of the member's term. The changes in law
10-25 apply only to a member appointed on or after September 1, 1997.
10-26 This Act does not prohibit a person who is a member of the board on
10-27 September 1, 1997, from being reappointed to the board if the
10-28 person has the qualifications required for a member under
10-29 Subchapter F, Medical Practice Act (Article 4495b, Vernon's Texas
10-30 Civil Statutes), as amended by this Act.
10-31 SECTION 14. This Act takes effect September 1, 1997, and
10-32 applies only to a license issued or renewed by the Texas State
10-33 Board of Medical Examiners under Subchapter F, Medical Practice Act
10-34 (Article 4495b, Vernon's Texas Civil Statutes), on or after that
10-35 date.
10-36 SECTION 15. The importance of this legislation and the
10-37 crowded condition of the calendars in both houses create an
10-38 emergency and an imperative public necessity that the
10-39 constitutional rule requiring bills to be read on three several
10-40 days in each house be suspended, and this rule is hereby suspended.
10-41 * * * * *