78R8854 T
By: Cook of Colorado H.B. No. 3038
A BILL TO BE ENTITLED
AN ACT
relating to the elimination of the Acupuncture Board and functions
of the Texas Acupuncture Association.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Amendment. Chapter 205, Subchapter A,
Occupations Code is amended by the following:
(2) "Acupuncture"
(B) the administration and/or recommendation of
thermal or electrical treatments, herbal and dietary formulas and
supplements, energy flow exercises (including acupressure, tuina,
shiatsu and other forms of Asian bodywork), and dietary guidelines
(3) "Acupuncture association" means the Texas
Association of Acupuncture and Oriental Medicine.
SECTION 2. Amendment. Chapter 205, Occupations Code is
amended by the following:
Sec. 205.002. Application of Sunset Act This chapter
expires September 1, 2008.
SECTION 3. Amendment. Chapter 205 of the Occupations Code
is amended by deleting Subchapter B, Texas State Board of
Acupuncture Examiners and adding the following:
SUITS: The Acupuncture association may sue and be sued in its own
name.
CONTRACTS: To carry out and promote the objectives of this
chapter, the Acupuncture association may enter into contracts and
do all other acts incidental to those contracts that are necessary
or expedient for the administration of its affairs and for the
attainment of its purposes.
PURCHASING: The Acupuncture association shall adopt guidelines
and procedures for purchasing. The Acupuncture association shall
maintain reports on Acupuncture association purchases and shall
make those reports available for review by the state auditor.
PROPERTY: (a) The Acupuncture association may acquire by gift,
bequest, devise, or other manner any interest in real or personal
property. (b) The Acupuncture association may acquire, hold,
lease, encumber, and dispose of real and personal property in the
exercise of its powers and the performance of its duties under this
chapter. (c) The property of the Acupuncture association is held
by the Acupuncture association for the purpose of overseeing and
regulating the practice of acupuncture in Texas. If the
Acupuncture association ceases to exist as a legal entity for any
reason, all property of the Acupuncture association shall be held
in trust for the board.
INDEBTNESS, LIABILTY AND OBLIGATION: (a) An indebtedness,
liability, or obligation of the Acupuncture association does not:
(1) create a debt or other liability of the state or of any entity
other than the Acupuncture association or any successor public
corporation; or (2) create any personal liability on the part of
the members of the Acupuncture association or the members of the
board of directors or any authorized person issuing, executing, or
delivering any evidence of the indebtedness, liability, or
obligation. (b) The Acupuncture association may not create an
indebtedness, liability, or obligation that cannot be paid from the
receipts for the current year unless approved by referendum of all
members of the Acupuncture association.
MANAGEMENT. The Acupuncture association may contract with
independent agencies and/or entities to perform certain management
and administrative functions of the Acupuncture association.
OFFICERS OF ACUPUNCTURE ASSOCIATION: (a) The officers of the
Acupuncture association are the president, president-elect, and
immediate past-president. (b) the officers shall be elected in
accordance with rules established by the Acupuncture association
and with the advice of the Medical board.
BOARD OF DIRECTORS: (a) The governing body of the Acupuncture
association is the board of directors. (b) The board is composed
of (1) officers of the Acupuncture association; (2) 6 licensed
acupuncturists; and (3) two physicians experienced in the practice
of acupuncture. (c) Elected members serve three-year terms, which
shall be staggered. (d) The board of directors shall provide to
its members and employees, as often as necessary, information
regarding their qualifications for office or employment under this
chapter and their responsibilities under applicable laws related to
standards of conduct for state officers. (d) The board of
directors shall develop and implement policies that clearly define
the respective responsibilities of the board. (e) Meetings of the
board of directors are subject to the Open Meetings Act. (f) The
Board of directors shall develop and implement policies that
provide the public with a reasonable opportunity to appear before
the board and to speak on any issue under the jurisdiction of the
board.
REMOVAL OF DIRECTOR: (a) the board of directors may remove a
director from the board at any regular meeting by resolution
declaring the director's position vacant if the director has become
incapacitated and cannot perform his duties as a director or the
director has been absent, without cause considered adequate by the
board, from any two consecutive regular meetings of the board or
from a total of four meetings.
TRADE ASSOCIATION EMPLOYEE OR CONSULTANT: A member of the board of
directors or an employee of the board may not be an employee or paid
consultant of a trade association in the field of board interest.
EXECUTIVE DIRECTOR: (a) The board of directors, by a majority
vote, elects the executive director. The executive director serves
at the pleasure of the board. (b) The executive director shall
execute the policies and directives of the board in all Acupuncture
association activities. (c) The executive director shall perform
the duties usually required of a corporate secretary and other
duties as assigned by the board. (d) The executive director shall
act as the treasurer of the Acupuncture association and shall
receive funds on behalf of the Acupuncture association. The funds
are subject to audit. (e) The executive director shall maintain
the membership files. (f) The executive director must execute a
corporate surety bond in an amount determined by the board of
directors conditioned on faithful performance of the executive
director's duties. The Acupuncture association shall pay the
premium for the bond. (g) The executive director has no vote on
matters before the board of directors. (h) The executive director
or the executive director's designee shall develop a system of
annual performance evaluations. All merit pay for Acupuncture
association employees must be based on the system established under
this subsection. (i) The executive director or the executive
director's designee shall prepare and maintain a written policy
statement to assure implementation of a program of equal employment
opportunity under which all personnel transactions are made without
regard to race, color, handicap, sex, religion, age, or national
origin. The policy statement must include: (1) personnel
policies, including policies relating to recruitment, evaluation,
selection, appointment, training, and promotion of personnel; (2)
a comprehensive analysis of the Acupuncture association work force
that meets federal and state guidelines; (3) procedures by which a
determination can be made of significant underuse in the
Acupuncture association work force of all persons for whom federal
or state guidelines encourage a more equitable balance; and (4)
reasonable methods to appropriately address those areas of
significant underuse. (j) A policy statement prepared under
Subsection (i) must cover an annual period, be updated at least
annually, and be filed with the governor's office. (k) The
governor's office shall deliver a biennial report to the
legislature based on the information received under Subsection (i).
The report may be made separately or as a part of other biennial
reports made to the legislature.
COMMITTEES AND SECTIONS: The board of director's may create
committees and sections as it considers advisable and necessary to
carry out the purposes of this chapter.
OPEN RECORDS: All records of the Acupuncture association are
subject to Chapter 552.
AUDITS: The financial transactions of the Acupuncture
association are subject to audit by the state auditor in accordance
with Chapter 321, Government Code. The Acupuncture association
shall file annually with the governor and the presiding officer of
each house of the legislature a complete and detailed written
report accounting for all funds received and disbursed by the
Acupuncture association during the preceding fiscal year. The
annual report must be in the form and reported in the time provided
by the General Appropriations Act.
RULES: The Acupuncture association shall promulgate rules
governing the Acupuncture association.
SECTION 4. Amendment. Chapter 205 of the Occupations Code
is amended by the following:
SUBCHAPTER C. POWERS AND DUTIES OF ACUPUNCTURE ASSOCIATION AND
MEDICAL BOARD
Sec. 205.101. General Powers and Duties of Acupuncture
association (a) The Acupuncture association shall:
(1) establish qualifications for an acupuncturist to
practice in this state;
(2) (3) administer an examination that is validated
by independent testing professionals for a license to practice
acupuncture;
(4) develop requirements for licensure by endorsement
of other states;
(5) prescribe the application form for a license to
practice acupuncture;
(6) make recommendations on applications for licenses
to practice acupuncture;
(7) remit 50% of any profits, if any, derived from the
collection of membership dues at the end of the Acupuncture
association's fiscal year to the General Revenue Fund; and
(8) recommend additional rules as are necessary to
administer and enforce this chapter.
(b) The acupuncture association shall establish minimum
educational and training requirements as necessary to enable the
acupuncture board to recommend that the medical board issue a
license to practice acupuncture. In establishing the requirements,
the acupuncture association may consider the minimum educational
and training requirements established by the Accreditation
Commission for Acupuncture and Oriental Medicine.
SECTION 5. Amendment. Chapter 205 of the Occupations Code
is amended by the following:
Sec. 205.103. FEES. The medical board shall set and collect
fees in amounts that are reasonable and necessary to cover the costs
of administering and enforcing this chapter without the use of any
other funds generated by the medical board.
SECTION 6. Amendment. Chapter 205 of the Occupations Code
is amended by the following:
SUBCHAPTER D. PUBLIC ACCESS AND INFORMATION AND COMPLAINT
PROCEDURES
Sec. 205.151. Public Interest Information (a) The
Acupuncture association shall prepare information of public
interest describing the functions of the Acupuncture association
and the procedures by which complaints are filed with and resolved
by the Acupuncture association. (b) The Acupuncture association
shall make the information available to the public and appropriate
Sec. 205.152. Complaints (a) The Acupuncture association
by rule shall establish methods by which consumers and service
recipients are notified of the name, mailing address, and telephone
number of the Acupuncture association for the purpose of directing
a complaint to the Acupuncture association. The Acupuncture
association may provide for that notification:
(1) on each registration form, application, or written
contract for services of a person regulated under this chapter;
(2) on a sign prominently displayed in the place of
business of each person regulated under this chapter; or
(3) in a bill for service provided by a person
regulated under this chapter.
(b) The Acupuncture association shall keep information
about each complaint filed with the Acupuncture association. The
information shall include:
(1) the date the complaint is received;
(2) the name of the complainant;
(3) the subject matter of the complaint;
(4) a record of all persons contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) for a complaint for which the Acupuncture
association took no action, an explanation of the reason the
complaint was closed without action.
(c) The Acupuncture association shall keep a file about each
written complaint filed with the Acupuncture association that the
Acupuncture association has authority to resolve. The Acupuncture
association shall provide to the person filing the complaint and
each person who is the subject of the complaint the Acupuncture
association's policies and procedures pertaining to complaint
investigation and resolution.
(d) The Acupuncture association, at least quarterly and
until final disposition of the complaint, shall notify the person
filing the complaint and each person who is the subject of the
complaint of the status of the complaint unless the notice would
jeopardize an investigation.
Sec. 205.153. Public Participation (a) Subject to the
advice and approval of the medical board, the Acupuncture
association shall develop and implement policies that provide the
public with a reasonable opportunity to appear before the
Acupuncture association and to speak on any issue under the
Acupuncture association's jurisdiction.
SECTION 7. Amendment. Chapter 205, Occupations Code is
amended by the following:
SUBCHAPTER E. LICENSE REQUIREMENTS
Sec. 205.202. Issuance of License
After consulting the Acupuncture association, the medical board
shall issue a license to practice acupuncture in this state to a
person who meets the requirements of this chapter and the rules
adopted under this chapter.
Sec. 205.203. License Examination (a) An applicant for a
license to practice acupuncture must pass an examination approved
by the Acupuncture association.
(b) To be eligible for the examination, an applicant must:
(1) be at least 21 years of age;
(2) have completed at least 60 semester hours of
college courses, including basic science courses as determined by
the Acupuncture association; and
(3) be a graduate of an acupuncture school with
entrance requirements and a course of instruction that meet
standards set under Section 205.206.
(c) The examination shall be conducted on practical and
theoretical acupuncture and other subjects required by the
Acupuncture association.
(d) The examination may be in writing, by a practical
demonstration of the applicant's skill, or both, as required by the
Acupuncture association.
(e) The medical board shall notify each applicant of the
time and place of the examination.
Sec. 205.204. Application for Examination
An application for examination must be:
(1) in writing on a form prescribed by the Acupuncture
association;
(2) verified by affidavit;
(3) filed with the executive director; and
(4) accompanied by a fee in an amount set by the
medical board.
Sec. 205.2045. Appearance of Applicant Before Acupuncture
association
An applicant for a license to practice acupuncture may not be
required to appear before the Acupuncture association or a
committee of the Acupuncture association unless the application
raises questions concerning:
(1) a physical or mental impairment of the applicant;
(2) a criminal conviction of the applicant; or
(3) revocation of a professional license held by the
applicant.
Sec. 205.205. Examination Results (a) Not later than the
30th day after the date a licensing examination is administered
under this chapter, the Acupuncture association shall notify each
examinee of the results of the examination. If an examination is
graded or reviewed by a national testing service, the Acupuncture
association shall notify examinees of the results of the
examination not later than the 14th day after the date the
Acupuncture association receives the results from the testing
service.
(b) If the notice of examination results graded or reviewed
by a national testing service will be delayed for longer than 90
days after the examination date, the Acupuncture association shall
notify the examinee of the reason for the delay before the 90th day.
The Acupuncture association may require a testing service to notify
examinees of the results of an examination.
(c) If requested in writing by a person who fails a
licensing examination administered under this chapter, the
Acupuncture association shall furnish the person with an analysis
of the person's performance on the examination if an analysis is
available from the national testing service.
Sec. 205.206. Acupuncture Schools (a) A reputable
acupuncture school, in addition to meeting standards set by the
Acupuncture association, must:
(1) maintain a resident course of instruction
equivalent to not less than six terms of four months each for a
total of not less than 1,800 instructional hours;
(2) provide supervised patient treatment for at least
two terms of the resident course of instruction;
(3) maintain a course of instruction in
anatomy-histology, bacteriology, physiology, symptomatology,
pathology, meridian and point locations, hygiene, and public
health; and
(4) have the necessary teaching force and facilities
for proper instruction in required subjects.
(b) In establishing standards for the entrance requirements
and course of instruction of an acupuncture school, the Acupuncture
association may consider the standards set by the National
Accreditation Commission for Schools and Colleges of Acupuncture
and Oriental Medicine.
Sec. 205.208. Temporary License (a) The Medical board may,
through the executive director, issue a temporary license to
practice acupuncture to an applicant who:
(1) submits an application on a form prescribed by the
Medical board;
(2) has passed a national or other examination
recognized by the Medical board relating to the practice of
acupuncture.
SECTION 8. Amendment. Chapter 205, Occupations Code is
amended by the following:
Sec. 205.251. Annual Renewal Required (a) The medical
board by rule shall provide for the annual renewal of a license to
practice acupuncture. License renewal shall be contingent upon
completion of the continuing education requirements proscribed by
the Acupuncture association.
SECTION 9. Amendment. Chapter 205, Occupations Code is
amended by the following:
SUBCHAPTER F. LICENSE RENEWAL
Sec. 205.255. Continuing Education (a) The acupuncture
association by rule may require a license holder to complete a
certain number of hours of continuing education courses approved by
the Acupuncture association to renew a license.
(b) The Acupuncture association shall consider the approval
of a course conducted by:
(1) a knowledgeable health care provider; or
(2) a reputable school, state, or professional
organization.
SUBCHAPTER G. PRACTICE BY LICENSE HOLDER
Sec. 205.301. Evaluation by Other Health Care Practitioner
Required (a) A license holder may perform acupuncture on a person
only if the person was:
(1) evaluated by a physician or dentist, as
appropriate, for the condition being treated within one year before
the date acupuncture is performed; or
(2) evaluated by a chiropractor within 30 days before
the date acupuncture is performed.
(b) A license holder acting under Subsection (a)(1) must
obtain reasonable documentation that the required evaluation has
taken place. If the license holder is unable to determine that an
evaluation has taken place, the license holder must obtain a
written statement signed by the person on a form prescribed by the
Acupuncture association that states the person has been evaluated
by a physician or dentist within the prescribed time. The form must
contain a clear statement that the person should be evaluated by a
physician or dentist for the condition being treated by the license
holder.
(c) A license holder acting under Subsection (a)(2) shall
refer the person to a physician after performing acupuncture 30
times or for 120 days, whichever occurs first, if substantial
improvement does not occur in the person's condition for which the
evaluation was made.
(d) The medical board, with advice from the Acupuncture
association, by rule may modify:
(1) the scope of the evaluation under Subsection
(a)(1);
(2) the period during which treatment must begin under
Subsection (a)(1) or (2); or
(3) the number of treatments or days before referral
to a physician is required under Subsection (c).
Sec. 205.302. Authorized Practice Without Evaluation (a)
After notice and public hearing, the medical board with the advice
of the Acupuncture association shall determine by rule whether an
acupuncturist may treat a patient for or the prevention of stress,
allergies, nausea and digestive disorders, depression, insomnia
and cosmetic procedures without an evaluation from a physician,
dentist, or chiropractor. The medical board shall make the
determination based on clinical evidence and what the medical board
determines to be in the best interest of affected patients.
(b) Notwithstanding Section 205.301, a license holder may,
without an evaluation from a physician, dentist, or chiropractor,
perform acupuncture on a person for:
(1) smoking addiction;
(2) weight loss; or
(3) substance abuse; (4) alcoholism; or
(5) chronic pain.
Sec. 205.305. License Holder Information (a) Each license
holder shall file with the Medical board and the Acupuncture
association:
(1) the license holder's mailing address;
(2) the address of the license holder's residence;
(3) the mailing address of each office of the license
holder; and
(4) the address for the location of each office of the
license holder that has an address different from the office's
mailing address.
(b) A license holder shall:
(1) notify the Medical board and the acupuncture board
of a change of the license holder's residence or business address;
and
(2) provide the Medical board and the Acupuncture
association with the license holder's new address not later than
the 30th day after the date the address change occurs.
SECTION 10. Amendment. Chapter 205, Occupations Code is
amended by the following:
SUBCHAPTER H. DISCIPLINARY PROCEDURES
Sec. 205.351. Grounds for License Denial or Disciplinary
Action (13) directly or indirectly aids or abets the practice of
acupuncture by any person not licensed to practice acupuncture by
the Medical board;
(15) is the subject of repeated or recurring
meritorious health-care liability claims that in the opinion of the
Medical board evidence professional incompetence likely to injure
the public;
Sec. 205.353. Disciplinary Powers of Acupuncture
association (a) On finding that a person licensed under this
chapter has committed an offense described in Section 205.351, the
Acupuncture association may:
(1) require the person to submit to the care,
counseling, or treatment of a health care practitioner designated
by the Acupuncture association;
(2) stay enforcement of an order and place the person
on probation with the Acupuncture association retaining the right
to vacate the probationary stay and enforce the original order for
noncompliance with the terms of probation or impose any other
remedial measure or sanction authorized by this section;
(3) order the person to perform public service;
(4) limit the person's practice to the areas
prescribed by the Acupuncture association;
(5) require the person to report regularly to the
Acupuncture association on matters that are the basis of the
probation; or
(6) require the person to continue or review
professional education until the person attains a degree of skill
satisfactory to the Acupuncture association in those areas that are
the basis of the probation under Subdivision (2).
(b) The Medical board, upon the recommendation of the
Acupuncture association, may restore or reissue a license or remove
any disciplinary or corrective measure that the Acupuncture
association has imposed under this section.
Sec. 205.356. Rehabilitation Order The Acupuncture
association, through an agreed order or after a contested
proceeding, may impose a nondisciplinary rehabilitation order on an
applicant, as a prerequisite for issuing a license, or on a license
holder based on:
(B) has not previously been the subject of a
substance abuse related order of the Acupuncture association;
Sec. 205.357. Effect of Rehabilitation Order (b) A
rehabilitation order imposed under Section 205.356 must contain
findings of fact and conclusions of law. The order may impose a
revocation, cancellation, suspension, period of probation or
restriction, or any other term authorized by this chapter or agreed
to by the Acupuncture association and the person subject to the
order.
Sec. 205.358. Audit of Rehabilitation Order (a) The
Acupuncture association shall keep rehabilitation orders imposed
under Section 205.356 in a confidential file. The file is subject
to an independent audit to ensure that only qualified license
holders are subject to rehabilitation orders. The audit shall be
conducted by a state auditor or private auditor with whom the
Acupuncture association contracts to perform the audit.
(b) An audit may be performed at any time at the direction of
the Acupuncture association. The Acupuncture association shall
ensure that an audit is performed at least once in each three-year
period.
Sec. 205.359. Subpoena (a) On behalf of the Acupuncture
association, the executive director of the medical board or the
presiding officer of the Acupuncture association may issue a
subpoena or subpoena duces tecum:
(b) Failure to timely comply with a subpoena issued under
this section is a ground for:
(1) disciplinary action by the Acupuncture
association or any other licensing or regulatory agency with
jurisdiction over the individual or entity subject to the subpoena;
and
(2) denial of a license application.
SECTION 11. Amendment. Chapter 152, Occupations Code is
amended by adding the following: MEMBERSHIP REQUIRED: All
licensed acupuncturists shall pay annual membership dues. The
Board of directors will set such dues on an annual basis to the
Acupuncture association.
SECTION 12. Amendment. Chapter 152, Occupations Code is
amended by the following:
Sec. 152.002. Board Membership (1) twelve members who are
learned and eminent physicians licensed in this state for at least
three years before the appointment, nine of whom must be graduates
of a reputable medical school or college with a degree of doctor of
medicine (M.D.) and three of whom must be graduates of a reputable
medical school or college with a degree of doctor of osteopathic
medicine (D.O.);
(2) two members who are licensed acupuncturists and
who have been members of the Acupuncture association for at least 5
years; and
(3) four members who represent the public.
SECTION 13. This Act is effective September 1, 2003.
SECTION 14. Emergency. The importance of this legislation
and the crowded condition of the calendars in both houses create an
emergency and an imperative public necessity that the
constitutional rule requiring bills to be read on three several
days in each house be suspended, and this rule is hereby suspended.