Bill Text: CA SB628 | 2011-2012 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Acupuncture: regulation.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2012-09-14 - Chaptered by Secretary of State. Chapter 326, Statutes of 2012. [SB628 Detail]
Download: California-2011-SB628-Amended.html
Bill Title: Acupuncture: regulation.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2012-09-14 - Chaptered by Secretary of State. Chapter 326, Statutes of 2012. [SB628 Detail]
Download: California-2011-SB628-Amended.html
BILL NUMBER: SB 628 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 31, 2011
AMENDED IN SENATE MAY 9, 2011
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE MARCH 22, 2011
INTRODUCED BY Senator Yee
FEBRUARY 18, 2011
An act to amend Sections 4935, 4955, 4955.1, 4955.2, 4956, 4960.2,
4961, 4965, 4966, 4967, and 4969 of, to add Section 4964.5 to, and
to add Article 3 (commencing with Section 4950) to Chapter 12 of
Division 2 of, the Business and Professions Code, relating to
acupuncture.
LEGISLATIVE COUNSEL'S DIGEST
SB 628, as amended, Yee. Acupuncture: regulation.
Existing law, the Acupuncture Licensure Act, establishes the
Acupuncture Board and makes it responsible for enforcing and
administering the act, including licensing persons who meet specified
licensure requirements. Under the act, licensees are titled
"acupuncturists," and are authorized to perform designated activities
pursuant to their license. The unlawful practice of acupuncture is a
crime.
This bill would, commencing May 1, 2012, require the board to
issue a certificate to practice as a traditional Chinese Medicine
traumatologist to an applicant who meets certain training and
clinical experience requirements , passes a
board-administered examination, and pays a specified fee.
The bill would limit the submittal of applications to the period
between January 1, 2012, and December 15, 2012, and would prohibit
the board from issuing a certificate after December 15, 2012. The
bill would require the board to establish the traumatology
advisory committee to advise the board about the certification
processes for traditional Chinese Medicine traumatologists
Traumatology Committee within the board with specified duties,
including determination of certification standards and evaluation of
whether an applicant meets those standards . The bill would set
forth procedures for the renewal of an unexpired or expired
certificate to perform traditional Chinese Medicine traumatology and
would establish specified fees in that regard. The bill would make it
a crime to use the title of "certified traditional Chinese Medicine
traumatologist" without meeting these certification requirements and
to fraudulently buy or sell a certificate for traditional Chinese
Medicine traumatology, thereby imposing a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4935 of the Business and Professions Code is
amended to read:
4935. (a) (1) It is a misdemeanor, punishable by a fine of not
less than one hundred dollars ($100) and not more than two thousand
five hundred dollars ($2,500), or by imprisonment in a county jail
not exceeding one year, or by both that fine and imprisonment, for
any person who does not hold a current and valid license to practice
acupuncture under this chapter to hold himself or herself out as
practicing or engaging in the practice of acupuncture, or to hold
himself or herself out as a certified traditional Chinese Medicine
traumatologist or use the title of "certified traditional Chinese
Medicine traumatologist" without meeting the requirements of this
chapter.
(2) It is a misdemeanor, punishable by a fine of not less than one
hundred dollars ($100) and not more than two thousand five hundred
dollars ($2,500), or by imprisonment in a county jail not exceeding
one year, or by both that fine and imprisonment, for any person to
fraudulently buy, sell, or obtain a license to practice acupuncture
or a certificate for traditional Chinese Medicine traumatology, or to
violate the provisions of this chapter.
(b) Notwithstanding any other provision of law, any person, other
than a physician and surgeon, a dentist, or a podiatrist, who is not
licensed under this article but is licensed under Division 2
(commencing with Section 500), who practices acupuncture involving
the application of a needle to the human body, performs any
acupuncture technique or method involving the application of a needle
to the human body, or directs, manages, or supervises another person
in performing acupuncture involving the application of a needle to
the human body is guilty of a misdemeanor.
(c) A person holds himself or herself out as engaging in the
practice of acupuncture by the use of any title or description of
services incorporating the words "acupuncture," "acupuncturist,"
"certified acupuncturist," "licensed acupuncturist," "Asian medicine,"
"oriental medicine," "Traditional Chinese Medicine," or any
combination of those words, phrases, or abbreviations of those words
or phrases, by representing that he or she is trained, experienced,
or an expert in the field of acupuncture, Asian medicine, or Chinese
medicine, or by representing that he or she is trained, experienced,
or an expert in the field of traditional Chinese Medicine
traumatology.
(d) Subdivision (a) shall not prohibit a person from administering
acupuncture treatment as part of his or her educational training if
he or she:
(1) Is engaged in a course or tutorial program in acupuncture, as
provided in this chapter; or
(2) Is a graduate of a school of acupuncture approved by the board
and participating in a postgraduate review course that does not
exceed one year in duration at a school approved by the board.
SEC. 2. Article 3 (commencing with Section 4950) is added to
Chapter 12 of Division 2 of the Business and Professions Code, to
read:
Article 3. Traumatologists
4950. (a) On or before March 1, 2012, the board shall establish a
Traumatology Advisory Committee within the board.
(b) The committee shall consist of six members composed of
two representatives each from the clinical settings
of traumatology , and the California
Medical Orthopaedic Association
, and one representative each from the
Medical Board of California , and the
California Orthopaedic Medical
Association , and the board .
(c) (1) Subject to subdivision (d), the committee shall meet and
confer to determine the certification standards, including the level
of experience and training needed for an individual to qualify for
traditional Chinese Medicine traumatology certification.
(2) The committee shall advise the board in developing the
application form and the written examination for
certification.
(d) Commencing May 1, 2012, until December 15, 2012, the board
shall issue a certificate for certified traditional Chinese Medicine
traumatology to any person who makes an application and meets all of
the following requirements , as determined by the committee
pursuant to subdivision (e) :
(1) Is at least 18 years of age.
(2) Furnishes satisfactory evidence of training and clinical
experience which that meets the
standards established by the committee and confirmed by the board.
(3) Passes a written examination administered by the board that
tests the applicant's ability, competency, and knowledge of Chinese
Medicine traumatology. The written examination shall be developed by
the Office of Professional Examination Services of the Department of
Consumer Affairs.
(4)
(3) Is not subject to denial pursuant to Division 1.5
(commencing with Section 475).
(e) The committee shall evaluate whether an applicant meets the
certification standards, including the level of experience and
training to sufficiently qualify for the traumatology certification.
(e)
(f) An applicant for traditional Chinese Medicine
traumatology certification shall, commencing January 1, 2012, until
December 15, 2012, file an application for a certificate for
traditional Chinese Medicine traumatology in this state. On and after
December 15, 2012, the board shall not issue an initial certificate
to any applicant. On and after December 15, 2012, the board may issue
only a renewal of a certificate under this section. An individual
who is not qualified to receive a certificate under this section, or
who fails to apply for certification under this section by December
15, 2012, shall not hold himself or herself out as a certified
traditional Chinese Medicine traumatologist pursuant to this section.
(f)
(g) A certified traditional Chinese Medicine
traumatologist, when engaging in manipulation techniques to realign
the musculoskeletal and ligamentous relationships, shall be
supervised by a physician and surgeon who has completed an
orthopaedic residency program. The extent of the relationship between
a traditional Chinese Medicine traumatologist and orthopedic surgeon
regarding those manipulation techniques shall be determined by the
advisory committee after the qualifications necessary for
certification are defined by the committee and adopted by the board.
(g)
(h) An applicant for certification as a traditional
Chinese Medicine traumatologist shall pay an application fee in the
amount of seventy-five dollars ($75) two
hundred dollars ($200) when submitting his or her application
to the board.
(h)
(i) A certified traditional Chinese Medicine
traumatologist shall renew his or her certificate every five years.
(i)
(j) An expired certificate may be renewed at any time
within three years after its expiration. The holder of the
certificate shall pay all accrued and unpaid renewal fees, plus a
delinquency fee.
(1) The annual renewal fee shall be
seventy-five dollars ($75) one hundred dollars ($100)
.
(2) The delinquency fee shall be twenty-five dollars ($25).
(3) The fee for a duplicate or replacement engraved wall
certificate shall be fifteen dollars ($15).
(4) The fee for a duplicate or replacement renewal receipt/pocket
certificate shall be ten dollars ($10).
(j)
(k ) Moneys received under this section
shall be deposited in the Acupuncture Fund for purposes of this
chapter.
(k)
(l) It is an unfair business practice for any person to
hold himself or herself out as a certified traditional Chinese
Medicine traumatologist or use the title of "certified traditional
Chinese Medicine traumatologist" without meeting the requirements of
this chapter.
SEC. 3. Section 4955 of the Business and Professions Code is
amended to read:
4955. The board may deny, suspend, or revoke, or impose
probationary conditions upon, the license of any acupuncturist or
certificate of any traditional Chinese Medicine traumatologist if he
or she is guilty of unprofessional conduct.
Unprofessional conduct shall include, but not be limited to, the
following:
(a) Using or possessing any controlled substance as defined in
Division 10 (commencing with Section 11000) of the Health and Safety
Code, or dangerous drug or alcoholic beverage to an extent or in a
manner dangerous to himself or herself, or to any other person, or to
the public, and to an extent that the use impairs his or her ability
to engage in the practice of acupuncture or traumatology with safety
to the public.
(b) Conviction of a crime substantially related to the
qualifications, functions, or duties of an acupuncturist or certified
traditional Chinese Medicine traumatologist, the record of
conviction being conclusive evidence thereof.
(c) False or misleading advertising.
(d) Aiding or abetting in, or violating or conspiring in, directly
or indirectly, the violation of the terms of this chapter or any
regulation adopted by the board pursuant to this chapter.
(e) Except for good cause, the knowing failure to protect patients
by failing to follow infection control guidelines of the board,
thereby risking transmission of blood-borne infectious diseases from
licensee to patient, from patient to patient, and from patient to
licensee. In administering this subdivision, the board shall consider
referencing the standards, regulations, and guidelines of the State
Department of Health Services developed pursuant to Section 1250.11
of the Health and Safety Code and the standards, regulations, and
guidelines pursuant to the California Occupational Safety and Health
Act of 1973 (Part 1 (commencing with Section 6300) of Division 5 of
the Labor Code) for preventing the transmission of HIV, hepatitis B,
and other blood-borne pathogens in health care settings. As
necessary, the board shall consult with the Medical Board of
California, the California Board of Podiatric Medicine, the Dental
Board of California, the Board of Registered Nursing, and the Board
of Vocational Nursing and Psychiatric Technicians, to encourage
appropriate consistency in the implementation of this subdivision.
The board shall seek to ensure that licensees are informed of the
responsibility of licensees and others to follow infection control
guidelines, and of the most recent scientifically recognized
safeguards for minimizing the risk of transmission of blood-borne
infectious diseases.
(f) The use of threats or harassment against any patient or
licensee for providing evidence in a disciplinary action, other legal
action, or in an investigation contemplating a disciplinary action
or other legal action.
(g) Discharging an employee primarily for attempting to comply
with the terms of this chapter.
(h) Disciplinary action taken by any public agency for any act
substantially related to the qualifications, functions, or duties of
an acupuncturist, certified traditional Chinese Medicine
traumatologist, or any professional health care licensee.
(i) Any action or conduct that would have warranted the denial of
the acupuncture license or the traumatology certificate.
(j) The violation of any law or local ordinance on an
acupuncturist's or certified traditional Chinese Medicine
traumatologist's business premises by an acupuncturist's or certified
traditional Chinese Medicine traumatologist's employee or a person
who is working under the acupuncturist's or certified traditional
Chinese Medicine traumatologist's professional license or business
permit, that is substantially related to the qualifications,
functions, or duties of an acupuncturist or certified traditional
Chinese Medicine traumatologist. These violations shall subject the
acupuncturist or certified traditional Chinese Medicine
traumatologist who employed the individuals, or under whose
acupuncture license or traumatology certificate the employee is
working, to disciplinary action.
(k) The abandonment of a patient by the licensee or certified
traditional Chinese Medicine traumatologist without written notice to
the patient that treatment is to be discontinued and before the
patient has had a reasonable opportunity to secure the services of
another practitioner.
(l) The failure to notify the board of the use of any false,
assumed, or fictitious name other than the name under which he or she
is licensed as an individual to practice acupuncture or as an
individual certified in traditional Chinese Medicine traumatology.
SEC. 4. Section 4955.1 of the Business and Professions Code is
amended to read:
4955.1. The board may deny, suspend, revoke, or impose
probationary conditions upon the license of any acupuncturist or
certified traditional Chinese Medicine traumatologist if he or she is
guilty of committing a fraudulent act, including, but not limited
to, any of the following:
(a) Securing a license by fraud or deceit.
(b) Committing a fraudulent or dishonest act as an acupuncturist
or certified traditional Chinese Medicine traumatologist.
(c) Committing any act involving dishonesty or corruption with
respect to the qualifications, functions, or duties of an
acupuncturist or certified traditional Chinese Medicine
traumatologist.
(d) Altering or modifying the medical record of any person, with
fraudulent intent, or creating any false medical record.
(e) Failing to maintain adequate and accurate records relating to
the provision of services to his or her patients.
SEC. 5. Section 4955.2 of the Business and Professions Code is
amended to read:
4955.2. The board may deny, suspend, revoke, or impose
probationary conditions upon the license of any acupuncturist or
certified traditional Chinese Medicine traumatologist if he or she is
guilty of committing any one of the following:
(a) Gross negligence.
(b) Repeated negligent acts.
(c) Incompetence.
SEC. 6. Section 4956 of the Business and Professions Code is
amended to read:
4956. A plea or verdict of guilty or a conviction following a
plea of nolo contendere made to a charge that is substantially
related to the qualifications, functions, or duties of an
acupuncturist or certified traditional Chinese Medicine
traumatologist is deemed to be a conviction within the meaning of
this chapter.
The board may order a license suspended or revoked, or may deny a
license, or may impose probationary conditions upon a license, when
the time for appeal has elapsed, or the judgment of conviction has
been affirmed on appeal, or when an order granting probation is made
suspending the imposition of sentence irrespective of a subsequent
order under Section 1203.4 of the Penal Code allowing the person to
withdraw his or her pleas of guilty and to enter a plea of not
guilty, or setting aside the verdict of guilty, or dismissing the
accusation, complaint, information, or indictment.
SEC. 7. Section 4960.2 of the Business and Professions Code is
amended to read:
4960.2. The board in all cases of revocation shall certify the
fact of the revocation, under the seal of the board, to the business
licensing entity of the cities or counties in which the license of
the acupuncturist or certificate of the traditional Chinese Medicine
traumatologist has been revoked. The record of the revocation made by
the county or city clerk shall be sufficient evidence of the
revocation, and of the regularity of all proceedings of the board in
the matter of the revocation.
SEC. 8. Section 4961 of the Business and Professions Code is
amended to read:
4961. (a) Every person who is now or hereafter licensed to
practice acupuncture or certified in traditional Chinese Medicine
traumatology in this state shall register, on forms prescribed by the
board, his or her place of practice, or, if he or she has more than
one place of practice, all of the places of practice. If the licensee
or certificate holder has no place of practice, he or she shall
notify the board of that fact. A person licensed or certified by the
board shall register within 30 days after the date of his or her
licensure or certification.
(b) A licensee or certificate holder shall post his or her license
or certificate in a conspicuous location in his or her place of
practice at all times. If an acupuncturist or certified traditional
Chinese Medicine traumatologist has more than one place of practice,
he or she shall obtain from the board a duplicate license or
certificate for each additional location and post the duplicate
license or certificate at each location.
(c) Any licensee or certificate holder that changes the location
of his or her place of practice shall register each change within 30
days of making that change. In the event a licensee or certificate
holder fails to notify the board of any change in the address of a
place of practice within the time prescribed by this section, the
board may deny renewal of licensure or certification. An applicant
for renewal of licensure or certification shall specify in his or her
application whether or not there has been a change in the location
of his or her place of practice and, if so, the date of that change.
The board may accept that statement as evidence of the change of
address.
SEC. 9. Section 4964.5 is added to the Business and Professions
Code, to read:
4964.5. The provisions of this article apply to both acupuncture
and certified traditional Chinese Medicine traumatologists.
SEC. 10. Section 4965 of the Business and Professions Code is
amended to read:
4965. (a) (1) A license to practice acupuncture issued pursuant
to this chapter shall expire on the last day of the birth month of
the licensee during the second year of a two-year term, if not
renewed.
(2) The board shall establish and administer a birth date renewal
program for purposes of this subdivision.
(3) To renew an unexpired license, the holder shall apply for
renewal on a form provided by the board and pay the renewal fee fixed
by the board.
(b) A certificate for traditional Chinese Medicine traumatology
issued pursuant to this chapter shall expire five years after the
date of issuance, if not renewed. To renew an unexpired certificate,
the holder shall apply for renewal on a form provided by the board
and pay the renewal fee set forth in Section 4950.
SEC. 11. Section 4966 of the Business and Professions Code is
amended to read:
4966. (a) Except as provided in Section 4969, a license to
practice acupuncture that has expired may be renewed at any time
within three years after its expiration by filing an application for
renewal on a form provided by the board, paying all accrued and
unpaid renewal fees, and providing proof of completing continuing
education requirements. If the license is not renewed prior to its
expiration, the acupuncturist, as a condition precedent to renewal,
shall also pay the prescribed delinquency fee.
(b) Except as provided in Section 4969, a certificate for
traditional Chinese Medicine traumatology that has expired may be
renewed at any time within three years after its expiration by filing
an application for renewal on a form provided by the board, and
paying all accrued and unpaid renewal fees. If the certificate is not
renewed prior to its expiration, the traditional Chinese Medicine
traumatologist, as a condition precedent to renewal, shall also pay a
delinquency fee, to be set in accordance with Section 163.5.
(c) Renewal under this section shall be effective on the date on
which the application is filed, on the date on which the renewal fee
is paid, or on the date the delinquency fee is paid, whichever occurs
last. If so renewed, the license or certificate shall continue in
effect through the expiration date provided in Section 4965, after
the effective date of the renewal, when it shall expire and become
invalid if it is not again renewed.
SEC. 12. Section 4967 of the Business and Professions Code is
amended to read:
4967. A person who fails to renew his or her license or
certificate within three years after its expiration may not renew it,
and it may not be restored, reissued, or reinstated thereafter, but
that person may apply for and obtain a new license or certificate if
he or she meets all of the following requirements:
(a) Has not committed any acts or crimes constituting grounds for
denial of licensure or certification under Division 1.5 (commencing
with Section 475).
(b) If an acupuncturist, takes and passes the examination, if any,
which would be required of him or her if an initial application for
licensure was being made, or, if an acupuncturist or certified
traditional Chinese Medicine traumatologist, otherwise establishes to
the satisfaction of the board that, with due regard for the public
interest, he or she is qualified to practice as an acupuncturist or
certified traditional Chinese Medicine traumatologist.
(c) Pays all of the fees that would be required if an initial
application for licensure or certification was being made.
(d) The board may provide for the waiver or refund of all or any
part of an examination fee in those cases in which a license to
practice acupuncture is issued without an examination pursuant to
this section.
SEC. 13. Section 4969 of the Business and Professions Code is
amended to read:
4969. (a) A suspended license or certificate is subject to
expiration and shall be renewed as provided in this article, but the
renewal does not entitle the acupuncturist or certified traditional
Chinese Medicine traumatologist, while the license or certificate
remains suspended, and until it is reinstated, to engage in the
practice of acupuncture or traditional Chinese Medicine traumatology,
or in any other activity or conduct in violation of the order or
judgment by which the license or certificate was suspended.
(b) A revoked license or certificate is subject to expiration as
provided in this article, but it may not be renewed. If it is
reinstated after its expiration, the former licensee or certificate
holder, as a condition to reinstatement, shall pay a reinstatement
fee in an amount equal to the renewal fee in effect on the last
regular renewal date before the date on which the license or
certificate was reinstated, plus the delinquency fee, if any, accrued
at the time of its expiration.
SEC. 14. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
