Part 9. TEXAS STATE BOARD OF MEDICAL EXAMINERS

Chapter 183. ACUPUNCTURE

The Texas State Board of Medical Examiners proposes amendments to §§183.1-183.4, 183.6 and the repeal and replacement of §§183.7-183.18, concerning Acupuncture. The proposal is necessary for a general clean-up of the chapter.

The Texas State Board of Medical Examiners previously proposed an amendment to §183.13 in the November 1, 2002, issue of the Texas Register (27 TexReg 10287). That amendment was withdrawn in the January 3, 2003, issue of the Texas Register . The section is re-proposed in this issue to incorporate all amendments at one time.

Michele Shackelford, General Counsel, Texas State Board of Medical Examiners, has determined that for the first five-year period the proposed rules are in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.

Ms. Shackelford also has determined that for each year of the first five years the rules as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be updated rules. There will be no effect on small or micro businesses.

Comments on the proposal may be submitted to Pat Wood, P.O. Box 2018, MC-901, Austin, Texas 78768-2018. A public hearing will be held at a later date.

22 TAC §§183.1 - 183.4, 183.6

The amendments are proposed under the authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

The following are affected by the proposed rules: Texas Occupations Code Annotated, Chapter 205.

§183.1.Purpose.

These rules are promulgated under the authority of the Medical Practice Act, Title 3 Subtitle B Tex. Occ. Code and the Acupuncture Act, Chapter 205 Tex. Occ.Code [ Article 4495b ], to establish procedures and standards for the training, education, licensing, and discipline of persons performing acupuncture in this State so as to establish an orderly system of regulating the practice of acupuncture in a manner which protects the health, safety, and welfare of the public.

§183.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the content clearly indicates otherwise.

(1) Ability to communicate in the English language - An applicant who has met the requirements set out in §183.4(a)(7) of this title (relating to Licensure).

(2) Acceptable approved acupuncture school - Effective January 1, 1996, and in addition to and consistent with the requirements of §205.206 of the Tex. Occ. Code and with the exception of the provisions outlined in §183.4(h) of this title (relating to Exceptions),

(A) a school of acupuncture located in the United States or Canada which, at the time of the applicant's graduation, was a candidate for accreditation by the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM), offered no more than a certificate upon graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal studies which at a minimum included the following:

(i) basic herbology including recognition, nomenclature, functions, temperature, taste, contraindications, and therapeutic combinations of herbs;

(ii) herbal formulas including traditional herbal formulas and their modifications or [ modification/ ] variations based on traditional methods of herbal therapy;

(iii) patent herbs including the names of the more common patent herbal medications and their uses; and

(iv) clinical training emphasizing herbal uses; or

(B) a school of acupuncture located in the United States or Canada which, at the time of the applicant's graduation, was accredited by ACAOM, offered a masters degree upon graduation, and had a curriculum of 1,800 hours with at least 450 hours of herbal studies which at a minimum included the following:

(i) basic herbology including recognition, nomenclature, functions, temperature, taste, contraindications, and therapeutic combinations of herbs;

(ii) herbal formulas including traditional herbal formulas and their modifications or variations based on traditional methods of herbal therapy;

(iii) patent herbs including the names of the more common patent herbal medications and their uses; and

(iv) clinical training emphasizing herbal uses; or

(C) a school of acupuncture located outside the United States or Canada that is determined by the board to be substantially equivalent to Texas acupuncture school or a school defined in subparagraph (B) of this paragraph through an evaluation by the American Association of Collegiate Registrars and Admissions Officers (AACRAO) a board-approved credential evaluation service[ ; and ]

[(D) the requirements of this section shall be in addition to the requirements of the Medical Practice Act, '6.07, subsection (c), and shall be construed and applied so as to be consistent with the Act.]

(3) Acupuncture Act or "the Act" - Chapter 205 of the Texas Occupations Code.

[(3) Acceptable unapproved acupuncture school - A school or college located outside the United States or Canada that was not approved by the board at the time the degree was conferred but whose curriculum meets the requirements for an unapproved medical school as determined by a committee of experts selected by the Texas State Board of Acupuncture Examiners, subject to approval by the Texas State Board of Medical Examiners.]

(4) Acupuncture -

(A) The insertion of an acupuncture needle and the application of moxibustion to specific areas of the human body as a primary mode of therapy to treat and mitigate a human condition, including the evaluation and assessment of the condition; and

(B) the administration of [ or ] thermal or [ and ] electrical treatments or the recommendation [ recommendations ] of dietary guidelines, energy flow exercise, or dietary or herbal supplements in conjunction with the treatment described by subparagraph (A) of this paragraph.

(5) Acupuncture board or "board" - The Texas State Board of Acupuncture Examiners.

(6) Acupuncturist - A licensee of the [ Texas State Board of Acupuncture Examiners ] acupuncture board who directly or indirectly charges a fee for the performance of acupuncture services.

(7) Agency - the divisions, departments, and employees of the Texas State Board of Medical Examiners, the Texas State Board of Physician Assistant Examiners, and the Texas State Board of Acupuncture Examiners.

(8) [ (7) ] APA - The Administrative Procedure Act, Government Code, §2001.001 et seq.

(9) [ (8) ] Applicant [ or petitioner ] - A party seeking a license [ or rule ] from the board.

(10) [ (9) ] Application - An application is all documents and information necessary to complete an applicant's request for licensure including the following:

(A) forms furnished by the board, completed by the applicant:

(i) all forms and addenda requiring a written response must be printed in ink or typed;

(ii) photographs must meet United States Government passport standards;

(B) a fingerprint card, furnished by the acupuncture board, completed by the applicant, that must be readable by the Texas Department of Public Safety;

(C) all documents required under §183.4(c) of this title (relating to Licensure Documentation); and

(D) the required fee, payable by check through a United States bank.

(11) [ (10) ] Assistant Presiding Officer - A member of the acupuncture board elected by the acupuncture board to fulfill the duties of the presiding officer in the event the presiding officer is incapacitated or absent, or the presiding officer's duly qualified successor under Robert's Rules of Order Newly Revised or board rules.

[(11) Board - The Texas State Board of Acupuncture Examiners.]

(12) Board member - One of the members of the acupuncture board, appointed and qualified pursuant to §§205.051-.053 of the Act.

(13) Chiropractor - A licensee of the Texas State Board of Chiropractic Examiners.

(14) Contested case - A proceeding, including but not restricted to, licensing, in which the legal rights, duties, or privileges of a party are to be determined by the board after an opportunity for adjudicative hearing.

(15) Documents - Applications, petitions, complaints, motions, protests, replies, exceptions, answers, notices, or other written instruments filed with the medical board or acupuncture board in a licensure proceeding or by a party in a contested case.

(16) Eligible for legal practice and/or licensure in country of graduation - An applicant who has completed all requirements for legal practice of acupuncture and/or licensure in the country in which the school is located except for any citizenship requirements.

(17) Executive Director -The executive director of the agency or the authorized designee of the executive director. [ Texas State Board of Medical Examiners. ]

(18) Full force - Applicants for licensure who possess a license in another jurisdiction must have it in full force and not restricted [ for cause ], canceled [ for cause ], suspended [ for cause ] or revoked. An acupuncturist with a license in full force may include an acupuncturist who does not have a current, active, valid annual permit in another jurisdiction because that jurisdiction requires the acupuncturist to practice in the jurisdiction before the annual permit is current.

(19) Full NCCAOM examination - The National Certification Commission for Acupuncture and Oriental Medicine examination, consisting of the Comprehensive Written Exam (CWE), the Clean Needle Technique Portion (CNTP), [ and ] the Practical Examination of Point Location Skills (PEPLS), and[ , effective January 1, 1998, ] the Chinese Herbology Exam.

(20) Good professional character - An applicant for licensure must not be in violation of or have committed any act described in the Act, §205.351.

(21) Administative Law Judge (ALJ) [ Hearings Examiner, Examiner, Administrative Law Judge, or ALJ ] - An individual appointed to preside over administrative hearings pursuant to the APA [ administrative law judge, duly employed by the State Office of Administrative Hearings ].

(22) License - Includes the whole or part of any board permit, certificate, approval, registration, or similar form of permission required by law; specifically, a license and a registration.

(23) Licensing - Includes the medical board's and acupuncture board's process respecting the granting, denial, renewal, revocation, suspension, annulment, withdrawal, or amendment of a license.

(24) Medical board - The Texas State Board of Medical Examiners.

(25) Misdemeanors involving moral turpitude - Any misdemeanor of which fraud, dishonesty, or deceit is an essential element; burglary; robbery; sexual offense; theft; child molesting; substance diversion or substance abuse; an offense involving baseness, vileness, or depravity in the private social duties one owes to others or to society in general; or an offense committed with knowing disregard for justice or honesty.

(26) Party - The acupuncture board and each person named or admitted as a party in a SOAH hearing or contested case before the acupuncture board [ Each person named or admitted as a party whether an applicant, protestant, petitioner, complainant, respondent or intervenor, and the board ].

(27) Person - Any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character.

(28) Physician - A licensee of the medical board [ Texas State Board of Medical Examiners ].

(29) Pleading - Written documents filed by parties concerning their respective claims.

(30) Presiding officer - The member of the acupuncture board appointed by the governor to preside over acupuncture board proceedings or the presiding officer's duly qualified successor in accordance with Robert's Rules of Order Newly Revised or board rules[ , a hearings examiner, administrative law judge, or other person presiding over the board ].

(31) Register - The Texas Register.

(32) Rule - Any agency statement of general applicability that implements, interprets, or prescribes law or policy, or describes the procedures or practice requirements of this board. The term includes the amendment or repeal of a prior section but does not include statements concerning only the internal management or organization of any agency and not affecting private rights or procedures. This definition includes substantive regulations.

(33) Secretary - The secretary-treasurer of the acupuncture board [ Texas State Board of Acupuncture Examiners ].

(34) Substantially equivalent to a Texas acupuncture school - A school or college of acupuncture [ located outside the United States or Canada must be ] that is an institution of higher learning designed to select and educate acupuncture students; provide students with the opportunity to acquire a sound basic acupuncture education through training; to develop programs of acupuncture education to produce practitioners, teachers, and researchers; and to afford opportunity for postgraduate and continuing medical education. The school must provide resources, including faculty and facilities, sufficient to support a curriculum offered in an intellectual and practical environment that enables the program to meet these standards. The faculty of the school shall actively contribute to the development and transmission of new knowledge. The school of acupuncture shall contribute to the advancement of knowledge and to the intellectual growth of its students and faculty through scholarly activity, including research. The school of acupuncture shall include, but not be limited to, the following characteristics:

(A) the facilities for didactic and clinical training (i.e., laboratories, hospitals, library, etc.) shall be adequate to ensure opportunity for proper education.

(B) the admissions standards shall be substantially equivalent to a Texas school of acupuncture.

(C) the basic curriculum shall include courses substantially equivalent to those delineated in the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) core curriculum at the time of applicant's graduation.

(D) the curriculum shall be of at least 1800 hours in duration.

[(35) The Act -- Tex. Occ. Code Ann., Chapter 205.]

§183.3.Meetings.

(a) The acupuncture board shall meet at least four times a year to carry out the mandates of the Act.

(b) Special meetings may be called by the presiding officer of the acupuncture board, by resolution of the acupuncture board, or upon written request to the presiding officer of the acupuncture board signed by at least three members of the board.

(c) Acupuncture board and committee meetings shall, to the extent possible, be conducted pursuant to the provisions of Robert's Rules of Order Newly Revised unless, by rule, the acupuncture board adopts a different procedure.

(d) All elections and any other issues requiring a vote of the acupuncture board shall be decided by a simple majority of the members present. A quorum for transaction of any business by the acupuncture board shall be one more than half the acupuncture board's membership at the time of the meeting. If more than two candidates contest an election or if no candidate receives a majority of the votes cast on the first ballot, a second ballot shall be conducted between the two candidates receiving the highest number of votes.

(e) The acupuncture board, at a regular meeting or special meeting, may elect from its membership an assistant presiding officer and a secretary-treasurer to serve a term of one year or for a term of a set duration established by majority vote of the acupuncture board.

(f) The acupuncture board, at a regular meeting or special meeting, upon majority vote of the members present may remove the assistant presiding officer or secretary-treasurer from office.

(g) The following are standing and permanent committees of the acupuncture board. Each committee, with the exception of the Executive Committee, shall consist of at least one board member who is a licensed physician, one board member who is a licensed acupuncturist, and one public board member. In the event that a committee does not have a representative of one or more of these groups, the presiding officer shall appoint additional members as necessary to maintain this composition. The Executive Committee shall include the presiding officer, the assistant presiding officer, and the secretary-treasurer, plus additional members so that the committee consists of a minimum of two board members who are licensed acupuncturists, one board member who is a licensed physician, and one public board member. The responsibilities and authority of these committees shall include those duties and powers as set forth below and such other responsibilities and authority which the acupuncture board may from time to time delegate to these committees.

(1) Licensure Committee:

(A) draft and review proposed rules regarding licensure, and make recommendations to the acupuncture board regarding changes or implementation of such rules;

(B) draft and review proposed application forms for licensure, and make recommendations to the acupuncture board regarding changes or implementation of such rules;

(C) oversee the application process for licensure;

(D) receive and review applications for licensure [ in the event the eligibility for licensure of an applicant is in question ];

(E) present the results of reviews of applications for licensure and make recommendations to the acupuncture board regarding licensure of applicants [ whose eligibility is in question ];

(F) oversee and make recommendations to the acupuncture board regarding any aspect of the examination process including the approval of an appropriate licensure examination and the administration of such an examination;

(G) draft and review proposed rules regarding any aspect of the examination;

(H) make recommendations to the acupuncture board regarding matters brought to the attention of the Licensure Committee.

(2) Discipline and Ethics Committee:

(A) draft and review proposed rules regarding the discipline of acupuncturists and enforcement of Subchapter H of the Act;

(B) oversee the disciplinary process and give guidance to the acupuncture board and staff regarding methods to improve the disciplinary process and more effectively enforce Subchapter H [ Subchapter F ] of the Act;

(C) monitor the effectiveness, appropriateness, and timeliness of the disciplinary process;

(D) make recommendations regarding resolution and disposition of specific cases and approve, adopt, modify, or reject recommendations from staff or representatives of the acupuncture board regarding actions to be taken on pending cases. Approve dismissals of complaints and closure of investigations;

(E) draft and review proposed ethics guidelines and rules for the practice of acupuncture, and make recommendations to the acupuncture board regarding the adoption of such ethics guidelines and rules;

(F) make recommendations to the acupuncture board and staff regarding policies, priorities, budget, and any other matters related to the disciplinary process and enforcement of Subchapter H [ Subchapter F ] of the Act; and

(G) make recommendations to the acupuncture board regarding matters brought to the attention of the Discipline and Ethics Committee.

(3) Education Committee:

(A) draft and propose rules regarding educational requirements for licensure in Texas and make recommendations to the acupuncture board regarding changes or implementation of such rules;

(B) draft and propose rules regarding training required for licensure in Texas and make recommendations to the acupuncture board regarding changes or implementation of such rules;

[(C) draft and propose rules regarding tutorial program requirements for licensure in Texas and make recommendations to the acupuncture board regarding changes or implementation of such rules;]

(C) [ (D) ] draft and propose rules regarding continuing education requirements for renewal of a Texas license and make recommendations to the acupuncture board regarding changes or implementation of such rules;

[(E) draft and propose rules regarding educational requirements for degrees granted upon graduation in Texas and make recommendations to the acupuncture board regarding changes or implementation of such rules;]

(D) [ (F) ] consult with the Texas Higher Education Coordinating Board regarding educational requirements for schools of acupuncture, oversight responsibilities of each entity, degrees which may be offered by schools of acupuncture;

(E) [ (G) ] maintain communication with acupuncture schools;

(F) [ (H) ] plan and make visits to acupuncture schools at specified intervals, with the goal of promoting opportunities to meet with the students so they may become aware of the board and its functions;

(G) [ (I) ] develop information regarding foreign acupuncture schools in the areas of curriculum, faculty, facilities, academic resources, and performance of graduates;

(H) [ (J) ] draft and propose rules which would set the requirements for degree programs in acupuncture;

(I) [ (K) ] be available for assistance with problems relating to acupuncture school issues which may arise within the purview of the board;

(J) [ (L) ] offer assistance to the Licensure Committee in determining eligibility of graduates of foreign acupuncture schools for licensure;

(K) [ (M) ] study and make recommendations regarding documentation and verification of records from foreign acupuncture schools;

(L) [ (N) ] make recommendations to the acupuncture board regarding matters brought to the attention of the Education Committee;.

(4) Executive Committee:

(A) review agendum for board meetings;

(B) ensure records are maintained of all committee actions;

(C) review requests from the public to appear before the board and to speak regarding issues relating to acupuncture;

(D) review inquiries regarding policy or administrative procedures;

(E) delegate tasks to other committees;

(F) take action on matters of urgency that may arise between board meetings;

(G) assist the medical board in the organization, preparation, and delivery of information and testimony to the Legislature and committees of the Legislature;

(H) formulate and make recommendations to the board concerning future board goals and objectives and the establishment of priorities and methods for their accomplishment;

(I) study and make recommendations to the board regarding the role and responsibility of the board offices and committees;

(J) study and make recommendations to the board regarding ways to improve the efficiency and effectiveness of the administration of the board pursuant to the Occupations Code, §205.102(b);

(K) make recommendations to the board regarding matters brought to the attention of the executive committee.

(h) Meetings of the acupuncture board and of its committees are open to the public unless such meetings are conducted in executive session pursuant to the Open Meetings Act and the Act. In order that board meetings may be conducted safely, efficiently, and with decorum, members of the public shall refrain at all times from smoking or using tobacco products, eating, or reading newspapers and magazines. Members of the public may not engage in disruptive activity that interferes with board proceedings, including, but not limited to, excessive movement within the meeting room, noise or loud talking, and resting of feet on tables and chairs. The public shall remain within those areas of the board's offices designated as open to the public. Members of the public shall not address or question board members during meetings unless recognized by the board's presiding officer pursuant to a published agenda item.

(i) Journalists have the same right of access as other members of the public to acupuncture board meetings conducted in open session, and are also subject to the rules of conduct described in subsection (h) of this section. Observers of any board meeting may make audio or visual recordings of such proceedings conducted in open session subject to the following limitations: the acupuncture board's presiding officer may request periodically that camera operators extinguish their artificial lights to allow excessive heat to dissipate; camera operators may not assemble or disassemble their equipment while the board is in session and conducting business; persons seeking to position microphones for recording board proceedings may not disrupt the meeting or disturb participants; journalists may conduct interviews in the reception area of the board's offices or, at the discretion of the acupuncture board's presiding officer, in the meeting room after recess or adjournment; no interview may be conducted in the hallways of the board's offices; and the acupuncture board's presiding officer may exclude from a meeting any person who, after being duly warned, persists in conduct described in this subsection and subsection (h) of this section.

(j) The assistant presiding officer of the acupuncture board shall assume the duties of the presiding officer in the event of the presiding officer's absence or incapacity.

(k) In the absence or incapacity of both the presiding officer and the assistant presiding officer, the secretary-treasurer shall assume the duties of the presiding officer.

(l) In the event of the absence or incapacity of the presiding officer, the assistant presiding officer, and secretary-treasurer, the members of the acupuncture board may elect another member to act as the presiding officer of a board meeting or may elect an interim acting presiding officer for the duration of the absences or incapacity or until another presiding officer is appointed by the governor.

(m) Upon the death, resignation, or permanent incapacity of the assistant presiding officer or the secretary-treasurer, the acupuncture board shall elect from its membership an officer to fill the vacant position. Such an election shall be conducted as soon as practicable at a regular or special meeting of the acupuncture board.

§183.4.Licensure.

(a) Qualifications. An applicant must present satisfactory proof to the acupuncture board that the applicant:

(1) is at least 21 years of age;

(2) is of good professional character as defined in §183.2 of this title (relating to Definitions);

(3) has successfully completed 60 semester hours of general academic college level courses, other than in acupuncture school, that are not remedial and would be acceptable at the time they were completed for credit on an academic degree at a two or four year institution of higher education within the United States accredited by an agency recognized by the Higher Education Coordinating Board or its equivalent in other states as a regional accrediting body. Coursework completed as a part of a degree program in acupuncture or Oriental medicine may be accepted by the acupuncture board if, in the opinion of the acupuncture board, such coursework is substantially equivalent to the required hours of general academic college level coursework;

(4) is a graduate of an acceptable approved acupuncture school [ a reputable acupuncture school that was a candidate for accreditation or had accreditation through the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) at the time of applicant's graduation, ] or received and completed training which, in the opinion of the acupuncture board, was substantially equivalent to training provided by such a school;

(5) has taken and passed, within three attempts, each component of the full National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) examination;

(6) has taken and passed the CCAOM (Council of Colleges of Acupuncture and Oriental Medicine) Clean Needle Technique (CNT) course and practical examination; and

(7) is able to communicate in English as demonstrated by one of the following:

(A) passage of the NCCAOM examination taken in English;

(B) passage of the TOEFL (Test of English as a Foreign Language) with a score of 550 or higher on the paper based test or with a score of 213 or higher on the computer based test;

(C) passage of the TSE (Test of Spoken English) with a score of 45 or higher;

(D) passage of the TOEIC (Test of English for International Communication) with a score of 500 or higher; or

(E) at the discretion of the acupuncture board, passage of any other similar, validated exam testing English competency given by a testing service with results reported directly to the acupuncture board or with results otherwise subject to verification by direct contact between the testing service and the acupuncture board.

(b) Procedural rules for licensure applicants. The following provisions shall apply to all licensure applicants.

(1) Applicants for licensure:

(A) whose documentation indicates any name other than the name under which the applicant has applied must furnish proof of the name change;

(B) whose application for licensure which has been filed with the board office and which is in excess of two years old from the date of receipt shall be considered inactive. Any fee previously submitted with that application shall be forfeited. Any further application procedure for licensure will require submission of a new application and inclusion of the current licensure fee.

(C) will be allowed to sit for each component of the NCCAOM examination only three times;

(D) who in any way falsify the application may be required to appear before the acupuncture board. It will be at the discretion of the acupuncture board whether or not the applicant will be issued a Texas acupuncture license;

(E) on whom adverse information is received by the acupuncture board may be required to appear before the acupuncture board. It will be at the discretion of the acupuncture board whether or not the applicant will be issued a Texas license;

(F) shall be required to comply with the acupuncture board's rules and regulations which are in effect at the time the completed application form and fee are filed with the board;

(G) may be required to sit for additional oral, written, or practical examinations or demonstrations that, in the opinion of the acupuncture board, are necessary to determine competency of the applicant;

(H) must have the application for licensure completed and legible in every detail 60 days prior to the acupuncture board meeting in which they are to be considered for licensure unless otherwise determined by the acupuncture board based on good cause.

(2) Applicants for licensure who wish to request reasonable accommodation due to a disability must submit the request at the time of filing the application.

(3) Applicants who have been licensed in any other state, province, or country shall complete a notarized oath or other verified sworn statement in regard to the following:

(A) whether the license, certificate, or authority has been the subject of proceedings against the applicant for the restriction for cause, cancellation for cause, suspension for cause, or revocation of the license, certificate, or authority to practice in the state, province, or country, and if so, the status of such proceedings and any resulting action; and,

(B) whether an investigation in regard to the applicant is pending in any jurisdiction or a prosecution is pending against the applicant in any state, federal, national, local, or provincial court for any offense that under the laws of the state of Texas is a felony, and if so, the status of such prosecution or investigation.

(4) An applicant for a license to practice acupuncture may not be required to appear before the acupuncture board or any of its committees unless the application raises questions about the applicant's:

(A) physical or mental impairment;

(B) criminal conviction; or

(C) revocation of a professional license.

(c) Licensure documentation.

(1) Original documents/interview. An applicant must appear for a personal interview at the board offices and present original documents to a representative of the board for inspection. Original documents may include, but are not limited to, those listed in paragraph (2) of this subsection.

(2) Required documentation. Documentation required of all applicants for licensure shall include the following:

(A) Birth certificate/proof of age. Each applicant for licensure must provide a copy of either a birth certificate and translation, if necessary, to prove that the applicant is at least 21 years of age. In instances where a birth certificate is not available, the applicant must provide copies of a passport or other suitable alternate documentation.

(B) Name change. Any applicant who submits documentation showing a name other than the name under which the applicant has applied must present copies of marriage licenses, divorce decrees, or court orders stating the name change. In cases where the applicant's name has been changed by naturalization the applicant must submit the original naturalization certificate by hand delivery or by certified mail to the board office for inspection.

(C) Examination scores. Each applicant for licensure must have a certified transcript of grades submitted directly from the appropriate testing service to the acupuncture board for all examinations used in Texas for purposes of licensure in Texas.

(D) Dean's certification. Each applicant for licensure must have a certificate of graduation submitted directly from the school of acupuncture on a form provided by the acupuncture board. The applicant shall attach to the form a recent photograph, meeting United States Government passport standards, before submitting it to the school of acupuncture. The school shall have the Dean or the designated appointee sign the form attesting to the information on the form and placing the school seal over the photograph.

(E) Diploma or certificate. All applicants for licensure must submit a copy of their diploma or certificate of graduation.

(F) Evaluations. All applicants must provide, on a form furnished by the acupuncture board, evaluations of their professional affiliations for the past ten years or since graduation from acupuncture school, whichever is the shorter period.

(G) Preacupuncture school transcript. Each applicant must have the appropriate school or schools submit a copy of the record of their undergraduate education directly to the acupuncture board. Transcripts must show courses taken and grades obtained. If determined that the documentation submitted by the applicant is not sufficient to show proof of the completion of 60 semester hours of college courses other than in acupuncture school, the applicant must obtain coursework verification by submitting documentation to the acupuncture board for a determination as to the adequacy of such education or to a two or four year institution of higher education within the United States. The institution must be preapproved by the board's executive director and accredited by an agency recognized as a regional accrediting body by the Texas Higher Education Coordinating Board or its equivalent in another state.

(H) School of acupuncture transcript. Each applicant must have his or her acupuncture school submit a transcript of courses taken and grades obtained directly to the acupuncture board. Transcripts must clearly demonstrate completion of 1,800 instructional hours, with at least 450 hours of herbal studies.

(I) Fingerprint card. Each applicant must complete a fingerprint card for the Texas Department of Public Safety and return it to the acupuncture board as part of the application.

(J) Other verification. For good cause shown, with the approval of the acupuncture board, verification of any information required by this subsection may be made by a means not otherwise provided for in this subsection.

(3) Additional documentation. Applicants may be required to submit other documentation, including but not limited to the following:

(A) Translations. An accurate certified translation of any document that is in a language other than the English language along with the original document or a certified copy of the original document which has been translated .

(B) Arrest Records. If an applicant has ever been arrested, a copy of the arrest and arrest disposition from the arresting authority and submitted by that authority directly to the acupuncture board.

(C) Malpractice. If an applicant has ever been named in a malpractice claim filed with any liability carrier or if an applicant has ever been named in a malpractice suit, the applicant shall submit the following:

(i) a completed liability carrier form furnished by the acupuncture board regarding each claim filed against the applicant's insurance;

(ii) for each claim that becomes a malpractice suit, a letter from the attorney representing the applicant directly to this board explaining the allegation, dates of the allegation, and current status of the suit. If the suit has been closed, the attorney must state the disposition of the suit, and if any money was paid, the amount of the settlement, unless release of such information is prohibited by law or an order of a court with competent jurisdiction. If such letter is not available, the applicant will be required to furnish a notarized affidavit explaining why this letter cannot be provided; and

(iii) a statement, composed by the applicant, explaining the circumstances pertaining to patient care in defense of the allegations.

(D) Inpatient treatment for alcohol/substance abuse or mental illness. Each applicant that has been admitted to an inpatient facility within the last five years for the treatment of alcohol/substance abuse or mental illness must submit the following:

(i) an applicant's statement explaining the circumstances of the hospitalization;

(ii) an admitting summary and discharge summary, submitted directly from the inpatient facility;

(iii) a statement from the applicant's treating physician/psychotherapist as to diagnosis, prognosis, medications prescribed, and follow-up treatment recommended; and

(iv) a copy of any contracts or agreements signed with any licensing authority.

(E) Outpatient treatment for alcohol/substance abuse or mental illness. Each applicant that has been treated on an outpatient basis within the last five years for alcohol/substance abuse or mental illness must submit the following:

(i) an applicant's statement explaining the circumstances of the outpatient treatment;

(ii) a statement from the applicant's treating physician/psychotherapist as to diagnosis, prognosis, medications prescribed, and follow-up treatment recommended; and

(iii) a copy of any contracts or agreements signed with any licensing authority.

(F) Additional documentation. Additional documentation as is deemed necessary to facilitate the investigation of any application for licensure.

(G) DD214. A copy of the DD214 indicating separation from any branch of the United States military.

(H) Other verification. For good cause shown, with the approval of the acupuncture board, verification of any information required by this subsection may be made by a means not otherwise provided for in this subsection.

(I) False documentation. Falsification of any affidavit or submission of false information to obtain a license may subject an acupuncturist to denial of a license or to discipline pursuant to the Act, §205.351.

(4) Substitute documents/proof. The acupuncture board may, at its discretion, allow substitute documents where proof of exhaustive efforts on the applicant's part to secure the required documents is presented. These exceptions are reviewed by the acupuncture board, a board committee, or the board's executive director on an individual case-by-case basis.

(d) Temporary license.

(1) Issuance. The acupuncture board [ Texas State Board of Acupuncture Examiners ] may, through the executive director of the agency [ Texas State Board of Medical Examiners ], issue a temporary license to a licensure applicant who appears to meet all the qualifications for an acupuncture license under the Act, but is waiting for the next scheduled meeting of the acupuncture board [ Texas State Board of Acupuncture Examiners ] for review and for the license to be issued.

(2) Duration/renewal. A temporary license shall be valid for 100 days from the date issued and may be extended only for another 30 days after the date the initial temporary license expires. Issuance of a temporary license may be subject to restrictions at the discretion of the executive director and shall not be deemed dispositive in regard to the decision by the acupuncture board [ Texas State Board of Acupuncture Examiners ] to grant or deny an application for a permanent license.

(e) Distinguished professor temporary license.

(1) Issuance. The acupuncture board may issue a single distinguished professor temporary license to an acupuncturist who:

(A) holds a substantially equivalent license, certificate, or authority to practice acupuncture in another state, province, or country; and

(B) agrees to and limits any acupuncture practice in this state to acupuncture practice for demonstration or teaching purposes for acupuncture students and/or instructors, and in direct affiliation with an acupuncture school that is a candidate for accreditation or has accreditation through the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) at which the students are trained and/or the instructors teach; and

(C) agrees to and limits practice to demonstrations or instruction under the direct supervision of a licensed Texas acupuncturist who holds an unrestricted license to practice acupuncture in this state; and

(D) pays any required fees for issuance or renewal of the distinguished professor temporary license.

(2) [ Duration/renewal. ] Duration. The distinguished professor temporary license shall be valid for a continuous one-year period; however, the permit is revocable at any time the board deems necessary. The distinguished professor temporary license shall automatically expire one year after the date of issuance. The distinguished professor temporary license may not be renewed or reissued. [ Any such distinguished professor temporary license shall have a duration of no longer than 60 days and may be renewed no more than three consecutive times for a total of an additional 180 days. ]

(3) Disciplinary action. [ Termination. A distinguished professor temporary license shall automatically expire at the end of 60 days from issuance or 60 days from date of renewal unless otherwise renewed. ] A distinguished professor temporary license or renewal may be denied, terminated, cancelled, suspended, or revoked for any violation of acupuncture board rules or the Act, Subchapter H.

(f) Relicensure.

[ (1) ] If an acupuncturist's license has been expired for one year, it is considered to have been canceled, and the acupuncturist may not renew the license. The acupuncturist may obtain a new license by [ submitting to reexamination and ] complying with the requirements and procedures for obtaining an original license. [ The examination required by this section is the full NCCAOM examination. ]

[(2) A person may qualify for renewal of his or her original license without reexamination if that person:]

[(A) held a license previously in this state;]

[(B) moved to another state, province, or country;]

[(C) legally practiced in the other state, province, or country for not more than two years since the expiration of his or her Texas license; and]

[(D) files an application for relicensure under subsections (a)-(c) of this section.]

(g) Approved schools. An [ A ] ACAOM approved acupuncture school may use the word " college " as a means of representation to the public as long as it maintains ACAOM accreditation. An approved school may not represent itself as a university.

(h) Exceptions. Before January 1, 2004, the acupuncture board may not adopt a rule under §205.101 of the Act, that requires a school of acupuncture operating in Texas on or before September 1, 1993, be accredited by, or a candidate for accreditation by, the ACAOM [ Accreditation Commission for Acupuncture and Oriental Medicine. ]

§183.6.Denial of License; Discipline of Licensee.

(a) An applicant for a license under the Act shall be subject to denial of the application pursuant to the provisions of §205.351 of the Act.

(b) An acupuncturist who holds a license issued under authority of the Act shall be subject to discipline, including revocation of license, pursuant to §205.351 of the Act.

(c) The denial of licensure or the imposition of disciplinary action by the acupuncture board pursuant to §205.351 of the Act shall be in accordance with the Act, the procedures set forth in Chapter 187 of this title (relating to Procedural Rules) [ §183.8 of this title (relating to Procedure - General) ], the Administrative Procedure Act, and the rules of the State Office of Administrative Hearings. If the provisions of Chapter 187 conflict with the Act or rules under this chapter, the Act and provisions of this chapter shall control.

(d) Disciplinary guidelines.

(1) Chapter 190 of this title (relating to Disciplinary Guidelines) shall apply to acupuncturists regulated under this chapter and be used as guidelines for the following areas as they relate to the denial of licensure or disciplinary action of a licensee:

(A) practice inconsistent with public health and welfare;

(B) unprofessional or dishonorable conduct;

(C) disciplinary actions by state boards and peer groups;

(D) repeated and recurring meritorious health care liability claims; and

(E) aggravating and mitigating factors.

(2) If the provisions of Chapter 190 conflict with the Act or rules under this chapter, the Act and provisions of this chapter shall control.

[(1) Purpose. This subsection will:]

[(A) provide guidance and a framework of analysis for administrative law judges in the making of recommendations in contested licensure and disciplinary matters;]

[(B) promote consistency in the exercise of sound discretion by board members in the imposition of sanctions in disciplinary matters; and,]

[(C) provide guidance for board members for the resolution of potentially contested matters.]

[(2) Limitations. This subsection shall be construed and applied so as to preserve board member discretion in the imposition of sanctions and remedial measures pursuant to §205.351 of the Act. This subsection shall be further construed and applied so as to be consistent with the Act, and shall be limited to the extent as otherwise proscribed by statute and board rule.]

[(3) Aggravation. The following subparagraphs (A)-(O) of this paragraph may be considered as aggravating factors so as to merit more severe or more restrictive action by the board.]

[(A) patient harm and the severity of patient harm;]

[(B) economic harm to any individual or entity and the severity of such harm;]

[(C) environmental harm and severity of such harm;]

[(D) increased potential for harm to the public;]

[(E) attempted concealment of misconduct;]

[(F) premeditated misconduct;]

[(G) intentional misconduct;]

[(H) motive;]

[(I) prior misconduct of a similar or related nature;]

[(J) disciplinary history;]

[(K) prior written warnings or written admonishments from any government agency or official regarding statutes or regulations pertaining to the misconduct;]

[(L) violation of a board order;]

[(M) failure to implement remedial measures to correct or mitigate harm from the misconduct;]

[(N) lack of rehabilitative potential or likelihood for future misconduct of a similar nature; and,]

[(O) relevant circumstances increasing the seriousness of the misconduct.]

[(4) Extenuation and Mitigation. The following subparagraphs (A)-(O) of this paragraph may be considered as extenuating and mitigating factors so as to merit less severe or less restrictive action by the board.]

[(A) absence of patient harm;]

[(B) absence of economic harm to any individual or entity;]

[(C) absence of environmental harm;]

[(D) absence of potential harm to the public;]

[(E) self-reported and voluntary admissions of misconduct;]

[(F) absence of premeditation to commit misconduct;]

[(G) absence of intent to commit misconduct;]

[(H) motive;]

[(I) absence of prior misconduct of a similar or related nature;]

[(J) absence of a disciplinary history;]

[(K) implementation of remedial measures to correct or mitigate harm from the misconduct;]

[(L) rehabilitative potential;]

[(M) prior community service and present value to the community;]

[(N) relevant circumstances reducing the seriousness of the misconduct; and,]

[(O) relevant circumstances lessening responsibility for the misconduct.]

[(e) Scope of Practice.]

[(1) An acupuncturist may perform acupuncture on a person who has been evaluated by a physician or dentist, as appropriate, for the condition being treated within twelve months before the date acupuncture was performed.]

[(2) The holder of a license may perform acupuncture on a person who was referred by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners if the licensee commences the treatment within 30 days of the date of the referral. The licensee shall refer the person to a physician after performing acupuncture 30 times or for 120 days, whichever occurs first, if no substantial improvement occurs in the person's condition for which the referral was made.]

[(3) Notwithstanding paragraphs (1) and (2) of this subsection, an acupuncturist holding a current and valid license may without an evaluation or a referral from a physician, dentist, or chiropractor perform acupuncture on a person for smoking addiction, weight loss, alcoholism, chronic pain, or substance abuse.]

[(4) A licensed acupuncturist must recommend an evaluation by a licensed Texas physician or dentist, if after performing acupuncture 20 times or for two months, whichever occurs first, there is no substantial improvement of the patient's chronic pain.]

[(5) A licensed acupuncturist shall recommend an evaluation by a licensed Texas physician or dentist, as appropriate, if after performing acupuncture 20 times or for two months, whichever occurs first, there is no substantial improvement of the patient's alcoholism or substance abuse.]

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 23, 2002.

TRD-200208519

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: February 9, 2003

For further information, please call: (512) 305-7016

22 TAC §§183.7 - 183.18

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas State Board of Medical Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

The following are affected by the proposed rules: Texas Occupations Code Annotated, Chapter 205.

§183.7.Investigations.

§183.8.Procedure - General.

§183.9.Procedure - Prehearing.

§183.10.Procedure - Hearing.

§183.11.Procedure - Posthearing.

§183.12.Patient Records.

§183.13.Complaint Procedure Notification.

§183.14.Medical Board Review and Approval.

§183.15.Construction.

§183.16.Acudetox Specialist.

§183.17.Use of Professional Titles.

§183.18.Texas Acupuncture Schools.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 23, 2002.

TRD-200208520

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: February 9, 2003

For further information, please call: (512) 305-7016

22 TAC §§183.7 - 183.18

The new rules are proposed under the authority of the Occupations Code Annotated, §153.001, which provides the Texas State Board of Medical Examiners to adopt rules and bylaws as necessary to: govern its own proceedings; perform its duties; regulate the practice of medicine in this state; and enforce this subtitle.

The following are affected by the proposed rules: Texas Occupations Code Annotated, Chapter 205.

§183.7.Scope of Practice.

(a) An acupuncturist may perform acupuncture on a person who has been evaluated by a physician or dentist, as appropriate, for the condition being treated within twelve months before the date acupuncture was performed.

(b) The holder of a license may perform acupuncture on a person who was referred by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners if the licensee commences the treatment within 30 days of the date of the referral. The licensee shall refer the person to a physician after performing acupuncture 20 times or for two months, whichever occurs first, if no substantial improvement occurs in the person's condition for which the referral was made.

(c) Notwithstanding subsections (a) and (b) of this section, an acupuncturist holding a current and valid license may without an evaluation or a referral from a physician, dentist, or chiropractor perform acupuncture on a person for smoking addiction, weight loss, alcoholism, chronic pain, or substance abuse.

(d) A licensed acupuncturist must recommend an evaluation by a licensed Texas physician or dentist, if after performing acupuncture 20 times or for two months, whichever occurs first, there is no substantial improvement of the patient's chronic pain.

(e) A licensed acupuncturist shall recommend an evaluation by a licensed Texas physician or dentist, as appropriate, if after performing acupuncture 20 times or for two months, whichever occurs first, there is no substantial improvement of the patient's alcoholism or substance abuse.

§183.8.Investigations.

(a) Confidentiality. All complaints, adverse reports, investigation files, other investigation reports, and other investigative information in the possession of, received, or gathered by the board shall be confidential and no employee, agent, or member of the board may disclose information contained in such files except in the following circumstances:

(1) to the appropriate licensing authorities in other states, the District of Columbia, or a territory or country in which the acupuncturist is licensed;

(2) to appropriate law enforcement agencies if the investigative information indicates a crime may have been committed;

(3) to a health care entity upon receipt of written request. Disclosures by the board to a health care entity shall include only information about a complaint filed against an acupuncturist that was resolved after investigation by a disciplinary order of the board or by an agreed settlement, and the basis of and current status of any complaint under active investigation; and

(4) to other persons if required during the conduct of the investigation.

(b) Request for Information and Records.

(1) Patient records. Upon the request of the board or board representatives, a licensee shall furnish to the board legible copies of patient records in English or the original records within 14 days of the date of the request.

(2) Renewal of licenses. A licensee shall furnish a written explanation of his or her answer to any question asked on the application for license renewal, if requested by the medical board or acupuncture board. This explanation shall include all details as the medical board or acupuncture board may request and shall be furnished within 14 days of the date of the medical or acupuncture board's request.

(c) Professional Liability Suits and Claims. Following receipt of a notice of claim letter or a complaint filed in court against a licensee that is reported to the acupuncture board, the licensee shall furnish to the medical or acupuncture board the following information within 14 days of the date of receipt of the medical or acupuncture board's request for said information:

(1) a completed questionnaire to provide summary information concerning the suit or claim;

(2) a completed questionnaire to provide information deemed necessary in assessing the licensee's competency;

(3) true, legible, and complete copies of the licensee's office patient records and hospital records, if applicable, concerning the patient on whose behalf damages are sought; and

(4) current information on the status of any suit or claim previously reported to either board.

(d) Investigation of Professional Review Actions. A written report of a professional review action taken by a peer review committee or a health care entity provided to the acupuncture board must contain the results and circumstances of the professional review action. Such results and circumstances shall include:

(1) the specific basis for the professional review action, whether or not such action was directly related to care of individual patients; and

(2) the specific limitations imposed upon the acupuncturist's clinical privileges, upon membership in the professional society or association, and the duration of such limitations.

(e) Other Reports.

(1) Relevant information shall be reported to the acupuncture board indicating that an acupuncturist's practice poses a continuing threat to the public welfare shall include a narrative statement describing the time, date, and place of the acts or omissions on which the report is based.

(2) A report that an acupuncturist's practice constitutes a continuing threat to the public welfare shall be made to the acupuncture board as soon as possible after the peer review committee, licensed acupuncturist or acupuncture student involved reaches that conclusion and is able to assemble the relevant information.

(f) Reporting Professional Liability Claims.

(1) Reporting responsibilities. The reporting form must be completed and forwarded to the acupuncture board for each defendant acupuncturist against whom a professional liability claim or complaint has been filed. The information is to be reported by insurers or other entities providing professional liability insurance for an acupuncturist. If a nonadmitted insurance carrier does not report or if the acupuncturist has no insurance carrier, reporting shall be the responsibility of the acupuncturist.

(2) Separate reports required and identifying information. One separate report shall be filed for each defendant acupuncturist insured. When Part II is filed, it shall be accompanied by the completed Part I or other identifying information as described in paragraph (4)(A) of this subsection.

(3) Timeframes and attachments. The information in Part I of the form must be provided within 30 days of receipt of the claim or suit. A copy of the claim letter or petition must be attached. The information in Part II must be reported within 105 days after disposition of the claim. Disposed claims shall be defined as those claims where a court order has been entered, a settlement agreement has been reached, or the complaint has been dropped or dismissed.

(4) Alternate reporting formats. The information may be reported either on the form provided or in any other legible format which contains at least the requested data.

(A) If the reporter elects to use a reporting format other than the acupuncture board's form for data required in Part II, there must be enough identification data available to board staff to match the closure report to the original file. The data required to accomplish this include:

(i) name and license number of defendant acupuncturist(s); and

(ii) name of plaintiff.

(B) A court order or settlement agreement is an acceptable alternative submission for Part II. An order or settlement agreement should contain the necessary information to match the closure information to the original file. If the order or agreement is lacking some of the required data, the additional information may be legibly written on the order or agreement.

(5) Penalty. Failure by a licensed insurer to report under this section shall be referred to the State Board of Insurance. Sanctions under the Insurance Code, Article 1.10, section 7, may be imposed for failure to report.

(6) Definition. For the purposes of this subsection a professional liability claim or complaint shall be defined as a cause of action against an acupuncturist for treatment, lack of treatment, or other claimed departure from accepted standards of health care or safety which proximately results in injury to or death of the patient, whether the patient's claim or cause of action sounds in tort or contract.

(7) Claims not required to be reported. Examples of claims that are not required to be reported under this chapter but which may be reported include, but are not limited to, the following:

(A) product liability claims (i.e. where an acupuncturist invented a device which may have injured a patient but the acupuncturist has had no personal acupuncturist-patient relationship with the specific patient claiming injury by the device);

(B) antitrust allegations;

(C) allegations involving improper peer review activities;

(D) civil rights violations; or

(E) allegations of liability for injuries occurring on an acupuncturist's property, but not involving a breach of duty to the patient (i.e. slip and fall accidents).

(8) Claims that are not required to be reported under this chapter may, however, be voluntarily reported.

(9) The reporting form shall be as follows:

Figure: 22 TAC §183.8(f)(9)

§183.9.Impaired Acupuncturists.

(a) Mental or physical examination requirement.

(1) The board may require a licensee or applicant to submit to a mental and/or physical examination by a physician or physicians designated by the board if the board has probable cause to believe that the licensee or applicant is impaired. Impairment is present if one appears to be unable to practice with reasonable skill and safety to patients by reason of age, illness, drunkenness, excessive use of drugs, narcotics, chemicals, or any other type of material; or as a result of any mental or physical condition.

(2) Probable cause may include, but is not limited to, any one of the following:

(A) sworn statements from two people, willing to testify before the acupuncture board, or the State Office of Administrative Hearings that a certain licensee or applicant is impaired;

(B) a sworn statement from an official representative of the Texas Association of Acupuncturists or the Texas Association of Acupuncture and Oriental Medicine stating that the representative is willing to testify before the board that a certain licensee or applicant is impaired;

(C) evidence that a licensee or applicant left a treatment program for alcohol or chemical dependency before completion of that program;

(D) evidence that a licensee or applicant is guilty of intemperate use of drugs or alcohol;

(E) evidence of repeated arrests of a licensee or applicant for intoxication;

(F) evidence of recurring temporary commitments of a licensee or applicant to a mental institution; or

(G) medical records indicating that a licensee or applicant has an illness or condition which results in the inability to function properly in his or her practice.

(b) Rehabilitation Order. The board through an agreed order or after a contested proceeding, may impose a nondisciplinary rehabilitation order on any licensee, or as a prerequisite for licensure, on any licensure applicant. Chapter 180 of this title (relating to Rehabilitation Orders) shall govern procedures relating to acupuncturists who are found eligible for a rehabilitation order. If the provisions of Chapter 180 conflict with the Act or rules under this chapter, the Act and provisions of this chapter shall control.

§183.10.Patient Records.

(a) Acupuncturists licensed under the Act shall keep and maintain adequate records of all patient visits or consultations which shall, at a minimum, include:

(1) the patient's name and address;

(2) vital signs;

(3) the chief complaint of the patient;

(4) a patient history;

(5) a treatment plan for each patient visit or consultation;

(6) a notation of any herbal medications, including amounts and forms, and other modalities used in the course of treatment with corresponding dates for such treatment;

(7) a system of billing records which accurately reflect patient names, services rendered, the date of the services rendered, and the amount charged or billed for each service rendered;

(8) a written record regarding whether or not a patient was evaluated by a physician or dentist, as appropriate, for the condition being treated within 12 months before the date acupuncture was performed as required by §183.7(a) of this title (relating to Scope of Practice);

(9) a written record regarding whether or not a patient was referred to a physician after the acupuncturist performed acupuncture 20 times or for two months whichever occurs first, as required by §183.7(b) of this title (relating to Scope of Practice) in regard to treatment of patients upon referral by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners;

(10) in the case of referrals to the acupuncturist of a patient by a doctor licensed to practice chiropractic by the Texas Board of Chiropractic Examiners, the acupuncturist shall record the date of the referral and the most recent date of chiropractic treatment prior to acupuncture treatment; and,

(11) reasonable documentation that the evaluation required by §183.7 of this title (relating to Scope of Practice) was performed or, in the event that the licensee is unable to determine that the evaluation took place, a written statement signed by the patient stating that the patient has been evaluated by a physician within the required time frame on a copy of the following form:

Figure 1: 22 TAC §183.10(a)(11)

Figure 2: 22 TAC §183.10(a)(11)

(b) Pursuant to §205.302 of the Act, an acupuncturist shall not be required to keep and maintain the documentation set forth in subsection (a)(11) of this section when performing acupuncture on a patient only for smoking addiction, substance abuse, alcoholism, chronic pain, or weight loss.

(c) Acupuncturists licensed under the Act shall keep copies of patient treatment records indefinitely and billing records for a period of five years from the time of the last treatment rendered to the patient by the acupuncturist.

(d) Consent for the release of confidential information must be in writing and signed by the patient, or a parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been adjudicated incompetent to manage his or her personal affairs, or an attorney ad litem appointed for the patient, as authorized by the Texas Mental Health Code Subtitle C, Title 7, Health and Safety Code; the Persons with Mental Retardation Act, Subtitle D, Title 7, Health and Safety Code; Chapter 452, Health and Safety Code, (relating to Treatment of Chemically Dependent Persons); Chapter 5, Texas Probate Code; and Chapter 11, Family Code; or a personal representative if the patient is deceased, provided that the written consent specifies the following:

(1) the information or records to be covered by the release;

(2) the reason or purposes for the release; and

(3) the person to whom the information is to be released.

(e) The patient, or other person authorized to consent, has the right to withdraw his or her consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal.

(f) Any person who receives information made confidential by this act may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release the information was obtained.

(g) An acupuncturist shall furnish legible copies of patient records requested, or a summary or narrative of the records in English, pursuant to a written consent for release of the information as provided by subsection (d) of this section, except if the acupuncturist determines that access to the information would be harmful to the physical, mental, or emotional health of the patient. The acupuncturist may delete confidential information about another person who has not consented to the release. The information shall be furnished by the acupuncturist within 30 days after the date of receipt of the request. Reasonable fees for furnishing the information shall be paid by the patient or someone on his or her behalf. If the acupuncturist denies the request, in whole or in part, the acupuncturist shall furnish the patient a written statement, signed and dated, stating the reason for denial. A copy of the statement denying the request shall be placed in the patient's records. In this subsection, "patient records" means any records pertaining to the history, diagnosis, treatment, or prognosis of the patient.

§183.11.Complaint Procedure Notification.

Pursuant to §205.152 of the Act, Chapter 188 of this title (relating to Complaint Procedure Notification) shall govern acupuncturists with regard to methods of notification for filing complaints with the agency. If the provisions of Chapter 188 conflict with the Act or rules under this chapter, the Act and provisions of this chapter shall control.

§183.12.Medical Board Review and Approval.

(a) Pursuant to §205.202 of the Act, after consulting the acupuncture board, the medical board shall issue a license to practice acupuncture in this state to a person who meets the requirements of the Act and the rules adopted pursuant to the Act.

(b) The issuance, renewal, surrender, or cancellation of a license to practice acupuncture in this state shall be subject to final approval by the medical board after consultation with the acupuncture board.

(c) The acupuncture board recommendations of the revocation, suspension, restriction, probation, cancellation, or surrender of a license to practice acupuncture, as well as all recommended disciplinary actions, dismissals of allegations of violations of the Act, and agreed dispositions, shall be subject to medical board review and final approval by the medical board.

(d) Medical board approval of acupuncture board actions under this section shall be memorialized in the minutes of the medical board, the minutes of a committee of the medical board, or in a writing signed by the medical board's presiding officer, secretary-treasurer, or authorized committee chairman after consideration of the recommendations of the acupuncture board.

§183.13.Construction.

The provisions of this chapter shall be construed and interpreted so as to be consistent with the statutory provisions of the Act. In the event of a conflict between this chapter and the provisions of the Act, the provisions of the Act shall control; however, this chapter shall be construed so that all other provisions of this chapter which are not in conflict with the Act shall remain in effect.

§183.14.Acudetox Specialist.

(a) For purposes of this chapter, an "acudetox specialist" shall be defined as a person who is certified to practice auricular acupuncture for the limited purpose of treating alcoholism, substance abuse, and chemical dependency.

(b) Any person who does not possess a Texas acupuncture license or is not otherwise authorized to practice acupuncture under Tex. Occ. Code Ann. Title 3, Subtitle C, Chapter 205, may practice as an acudetox specialist for the sole purpose of the treatment of alcoholism, substance abuse, or chemical dependency upon obtaining certification as an acudetox specialist only under the following conditions listed in paragraphs (1)-(4) of this subsection:

(1) after issuance of certification by the Medical Board, payment of any required fee and receipt of written confirmation of certification from the Medical Board;

(2) after successful completion of a training program in acupuncture for the treatment of alcoholism, substance abuse, or chemical dependency, which has been approved by the Medical Board. Such program in auricular acupuncture shall be 70 hours in length, and shall include a clean needle technique course or equivalent universal infection control precaution procedures course approved by the Medical Board;

(3) if the individual holds an unrestricted and current license, registration, or certification issued by the appropriate Texas regulatory agency authorizing practice as a social worker, a licensed professional counselor, a licensed psychologist, a licensed chemical dependency counselor, a licensed vocational nurse, or a licensed registered nurse; provided, however, that such practice of acudetox is not prohibited by the regulatory agency authorizing such practice as a social worker, professional counselor, psychologist, chemical dependency counselor, licensed vocational nurse, or registered nurse; and,

(4) if the individual works under protocol and has access to a licensed Texas physician or a licensed Texas acupuncturist readily available by telephonic means or other methods of communication.

(c) For purposes of this chapter, auricular acupuncture shall be defined as acupuncture treatment limited to the insertion of needles into five acupuncture points in the ear. These points being the liver, kidney, lung, sympathetic and shen men.

(d) Certification as an acudetox specialist shall be subject to suspension, revocation, or cancellation on any grounds substantially similar to those set forth in the Act, (205.351 or for practicing acupuncture in violation of this chapter.

(e) Practitioners certified as acudetox specialists shall keep records of patient care which at a minimum shall include the dates of treatment, the purpose for the treatment, the name of the patient, the points used, and the name, signature, and title of the certificate-holder.

(f) The fee for certification as an acudetox specialist for the treatment of alcoholism, substance abuse, or chemical dependency shall be set in such an amount as to cover the reasonable cost of administering and enforcing this chapter without recourse to any other funds generated by the Medical or the Acupuncture Board. Such fee shall be $50 for the initial application for certification and $25 per renewal.

(g) Certificate-holders under this chapter shall keep a current mailing and practice address on file with the Medical Board and shall notify the Medical Board in writing of any address change within ten days of the change of address.

(h) Individuals practicing as an acudetox specialist under the provisions of this chapter shall ensure that any patient receiving such treatment is notified in writing of the qualifications of the individual providing the acudetox treatment and the process for filing complaints with the Medical Board, and shall ensure that a copy of the notification is retained in the patient's record.

(i) Applications for certification as an acudetox specialist shall be submitted in writing on a form approved by the Medical Board which contains the information set forth in subsection (b) of this section and any supporting documentation necessary to confirm such information.

(j) Each individual who is certified as an acudetox specialist may annually renew certification by completing and submitting to the Medical Board an approved renewal form together with the following as listed in paragraphs (1)-(3) of this subsection:

(1) documentation that the certification or license as required by subsection (b)(3) of this section is still valid;

(2) proof of any Continuing Auricular Acupuncture Education (CAAE) obtained as provided for in §183.21 of this title (relating to Continuing Auricular Acupuncture Education for Acudetox Specialists); and,

(3) payment of a certification renewal fee in the amount of $25.

(k) Each individual who obtains certification as an acudetox specialist under this section may only use the titles "Certified Acudetox Specialist" or "C.A.S." to denote his or her specialized training.

§183.15.Use of Professional Titles.

(a) A licensee shall use the title "Licensed Acupuncturist," "Lic. Ac.," or "L. Ac.," alongside his/her name on any advertising or other materials visible to the public which pertain to the licensee's practice of acupuncture. Only persons licensed as an acupuncturist may use these titles.

(b) If a licensee uses any additional title or designation, it shall be the responsibility of the licensee to comply with the provisions of the Healing Art Identification Act, Tex. Occ. Code Ann., Chapter 104.

§183.16.Texas Acupuncture Schools.

(a) A licensed Texas acupuncturist operating an acupuncture school in Texas which has not yet been accredited by the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM) or reached candidate status for accreditation by ACAOM, a licensed Texas acupuncturist with any ownership interest in such a school, or a licensed Texas acupuncturist who teaches in or operates such a school, shall ensure that students of the school and applicants to the school are made aware of the provisions of the Medical Practice Act governing acupuncture practice, the rules and regulations adopted by the Texas State Board of Acupuncture Examiners, and the educational requirements for obtaining a Texas acupuncture license to include the rules and regulations establishing the criteria for an approved acupuncture school for purposes of licensure as an acupuncturist by the Texas State Board of Acupuncture Examiners as set forth in subsection (b) of this section.

(b) Compliance with the provisions of subsection (a) of this section shall be accomplished by providing students and applicants with a copy of Subchapter H of the Act, a copy of Chapter 183 (Acupuncture) contained in the Rules of the Texas State Board of Medical Examiners, and the following typed statement:

Figure: 22 TAC §183.16(b)

(c) A licensed Texas acupuncturist who operates, teaches at, or owns, in whole or in part, a Texas acupuncture school which is not accredited by ACAOM or is not a candidate for ACAOM accreditation shall not state directly or indirectly, explicitly or by implication, orally or in writing, either personally or through an agent of the acupuncturist or the school, that the school is endorsed, accredited, registered with, affiliated with, or otherwise approved by the Texas State Board of Acupuncture Examiners for any purpose.

(d) Failure to comply with the requirements or abide by the prohibitions of this section shall be grounds for disciplinary action against a licensed Texas acupuncturist who operates, teaches at, or owns, in whole or in part, a Texas acupuncture school which is not accredited by ACAOM or is not a candidate for ACAOM accreditation. Such disciplinary action shall be based on the violation of a rule of the Texas State Board of Acupuncture Examiners as provided for in the Act, §205.351(a)(6).

(e) For purposes of licensure and regulation of acupuncturists practicing in Texas, ACAOM approved acupuncture schools in Texas meeting the criteria set forth in §183.2 of this title (relating to Definitions) may issue masters of science in oriental medicine degrees in a manner consistent with the laws of the State of Texas. The Texas State Board of Acupuncture Examiners shall recognize any such lawfully issued degrees. For purposes of licensure and regulation of acupuncturists practicing in Texas, acupuncture schools in Texas which are ACAOM candidates for masters level programs in acupuncture and oriental medicine and who have issued diplomas or degrees during the period of candidacy, may upgrade such degrees to masters degrees upon obtaining full ACAOM accreditation. The Texas State Board of Acupuncture Examiners shall recognize any such lawfully upgraded degrees.

§183.17.Compliance.

Chapter 189 of this title (relating to Compliance shall be applied to acupuncturists who are under board orders. If the provisions of Chapter 189 conflict with the Act or rules under this chapter, the Act and provisions of this chapter shall control.

§183.18.Administrative Penalties.

(a) Pursuant to §205.352 of the Act and Chapter 165 of the Medical Practice Act, the board by order may impose an administrative penalty, subject to the provisions of the APA, against a person licensed or regulated under the Act who violates the Act or a rule or order adopted under the Act. The imposition of such a penalty shall be consistent with the requirements of the Act and the APA.

(b) The penalty for a violation may be in an amount not to exceed $5,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty.

(c) Prior to the imposition of an administrative penalty by board order, a person must be given notice and opportunity to respond and present evidence and argument on each issue that is the basis for the proposed administrative penalty at a show compliance proceeding.

(d) The amount of the penalty shall be based on the factors set forth under Chapter 190 of this title (relating to Disciplinary Guidelines).

(e) If the board by order determines that a violation has occurred and imposes an administrative penalty on a person licensed or regulated under the Act, the board shall give notice to the person of the board's order which shall include a statement of the right of the person to seek judicial review of the order.

(f) An administrative penalty may be imposed under this section for the following:

(1) failure to timely comply with a board subpoena issued by the board shall be grounds for the imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(2) failure to timely comply with the terms, conditions, or requirements of a board order shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(3) failure to timely report a change of address to the board shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(4) failure to timely respond to a patient's communications shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(5) failure to comply with the complaint procedure notification requirements as set forth in §183.11 of this title (relating to Complaint Procedure Notification) shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation;

(6) failure to provide show compliance proceeding information in the prescribed time shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation; and

(7) for any other violation other than quality of care that the board deems appropriate shall be grounds for imposition of an administrative penalty of no less than $100 and no more than $5,000 for each separate violation.

(g) In the case of untimely compliance with a board order, the board staff shall not be authorized to impose an administrative penalty without an informal show compliance proceeding if the person licensed or regulated under the Act has not first been brought into compliance with the terms, conditions, and requirements of the order other than the time factors involved.

(h) Any order proposed under this section shall be subject to final approval by the board.

(i) Failure to pay an administrative penalty imposed through an order shall be grounds for disciplinary action by the board pursuant to the Act, §205.351(a)(10), regarding unprofessional or dishonorable conduct likely to deceive or defraud, or injure the public, and shall also be grounds for the executive director to refer the matter to the attorney general for collection of the amount of the penalty.

(j) A person who becomes financially unable to pay an administrative penalty after entry of an order imposing such a penalty, upon a showing of good cause by a writing executed by the person under oath and at the discretion of the Discipline and Ethics Committee of the board, may be granted an extension of time or deferral of no more than one year from the date the administrative penalty is due. Upon the conclusion of any such extension of time or deferral, if payment has not been made in the manner and in the amount required, action authorized by the terms of the order or subsection (i) of this section.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 23, 2002.

TRD-200208521

Donald W. Patrick, MD, JD

Executive Director

Texas State Board of Medical Examiners

Earliest possible date of adoption: February 9, 2003

For further information, please call: (512) 305-7016