BILL NUMBER: SB 1951 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 8, 2002
AMENDED IN ASSEMBLY JULY 2, 2002
AMENDED IN SENATE MAY 2, 2002
INTRODUCED BY Senator Figueroa
(Coauthors: Senators Johannessen and Polanco)
(Coauthors: Assembly Members Aanestad, Correa, and Thomson)
FEBRUARY 22, 2002
An act to amend Sections 4928, 4929, 4933, and
4934 , 4935, 4955, and 4977.2 of, and to add Sections
4934.1 and , 4934.2 , 4955.1,
4955.2, and 4960.2 to, the Business and Professions Code,
relating to professional boards.
LEGISLATIVE COUNSEL'S DIGEST
SB 1951, as amended, Figueroa. Professional boards: acupuncture
board.
Existing law provides for the regulation of various professions by
professional boards within the Department of Consumer Affairs,
including the regulation of the practice of acupuncture by the
Acupuncture Board. Existing law provides, until July 1, 2003, that
the board consists of 9 members. Existing law requires the board,
until July 1, 2003, to employ an executive officer and other
personnel necessary for the administration of the laws regulating the
practice of acupuncture. Existing law provides that those
provisions of law are repealed on January 1, 2004.
This bill would delete the July 1, 2003, and January 1, 2004,
dates upon which those provisions establishing the board and
requiring it to employ an executive officer and other personnel
become inoperative and are repealed. The bill would instead extend
the operation of those provisions until July 1, 2005, and would
repeal those provisions on January 1, 2006.
Existing law requires the Acupuncture Board to include 4
acupuncturists that are not licensed as physicians and surgeons.
This bill would instead require the board to include 3
acupuncturists who are not licensed as physicians and surgeons and
one acupuncturist who is a faculty member of an acupuncture college
approved by the board.
Existing law provides that a majority of the appointed board
members constitutes a quorum for the conduct of business.
This bill would provide that 5 members of the board constitutes a
quorum for the conduct of business.
This bill would request the Milton Marks "Little Hoover"
Commission on California State Government Organization and Economy to
conduct separate reviews addressing specified issues with respect to
the practice of acupuncture. The bill would request the commission
to report its findings to the Legislature by September 1, 2004. The
bill would also require the board to conduct certain studies and
reviews relating to acupuncture assistants and report its
findings to the department and the Joint Legislative Sunset Review
Committee by September 1, 2004.
Existing law provides that is a misdemeanor for a person to
practice acupuncture or to hold himself or herself out as practicing
or engaging in the practice of acupuncture without a current and
valid acupuncturist's license. Existing law authorizes the
Acupuncture Board to deny, suspend, revoke, or impose probationary
conditions upon, the license of an acupuncturist if the acupuncturist
is guilty of specified acts of unprofessional conduct.
This bill would provide that it is a misdemeanor for a person to
fraudulently buy, sell, or obtain a license to practice acupuncture
or to violate the provisions of law regulating the practice of
acupuncture. The bill would specify that misdemeanor punishment for
a violation of these provisions includes specified fines and
imprisonment in a county jail. The bill would revise the list of
specified acts that constitute unprofessional conduct.
Because a violation of the bill's requirements would be a crime,
this bill would impose 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: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4928 of the Business and Professions Code is
amended to read:
4928. The Acupuncture Board, which consists of nine members,
shall enforce and administer this chapter.
This section shall become inoperative on July 1, 2005, and, as of
January 1, 2006, is repealed, unless a later enacted statute, which
becomes effective on or before January 1, 2006, deletes or extends
the dates on which it becomes inoperative and is repealed.
The repeal of this section renders the board subject to the review
required by Division 1.2 (commencing with Section 473).
SEC. 2. Section 4929 of the Business and Professions Code is
amended to read:
4929. Three members of the board shall be acupuncturists with at
least five years of experience in acupuncture and not licensed as
physicians and surgeons, one member of the board shall be a licensed
acupuncturist who is also a faculty member of any board approved
acupuncture college, one member of the board shall be a physician and
surgeon licensed in this state with two years of experience in
acupuncture, and four members shall be public members who do not hold
a license or certificate as a physician and surgeon or
acupuncturist.
The Governor shall appoint the four acupuncturist members
qualified as provided in this section, who shall be appointed to
represent a cross section of the cultural backgrounds of licensed
members of the acupuncturist profession, two of the public members,
and the one licensed physician and surgeon member qualified as
provided in this section. All members appointed to the board by the
Governor shall be subject to confirmation by the Senate. The Senate
Rules Committee and the Speaker of the Assembly shall each appoint a
public member. Any member of the board may be removed by the
appointing power for neglect of duty, misconduct, or malfeasance in
office, after being provided with a written statement of the charges
and an opportunity to be heard.
SEC. 3. Section 4933 of the Business and Professions Code is
amended to read:
4933. (a) The board shall administer this chapter.
(b) The board may adopt, amend, or repeal, in accordance with the
Administrative Procedure Act (Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code),
regulations as may be necessary to enable it to carry into effect the
provisions of law relating to the practice of acupuncture.
(c) Five members of the board shall constitute a quorum to
conduct business.
(d) It shall require an affirmative vote of a majority of those
present at a meeting of the board to take any action or pass any
motion.
SEC. 4. Section 4934 of the Business and Professions Code is
amended to read:
4934. The board shall employ personnel necessary for the
administration of this chapter; however, the board may appoint an
executive officer who is exempt from the provisions of the Civil
Service Act.
This section shall become inoperative on July 1, 2005, and, as of
January 1, 2006, is repealed, unless a later enacted statute, which
becomes effective on or before January 1, 2006, deletes or extends
the dates on which it becomes inoperative and is repealed.
The repeal of this section renders the board subject to the review
required by Division 1.2 (commencing with Section 473).
SEC. 5. Section 4934.1 is added to the Business and Professions
Code, to read:
4934.1. (a) The Legislature requests the Milton Marks "Little
Hoover" Commission on California State Government Organization and
Economy to conduct a comprehensive analysis consisting of the
following reviews and evaluations and shall report their findings and
recommendations to the Legislature by September 1, 2004:
(1) Review and make recommendations on the scope of practice for
acupuncturists.
(2) Review and make recommendations on the educational
requirements for acupuncturists.
(3) Evaluate the national examination, administered by the
National Certification Commission for Acupuncture and Oriental
Medicine, and make recommendations as to whether or not the national
examination should be offered in California in lieu of, or as part
of, the state examination.
(4) Evaluate and make recommendations on the approval process of
the Accreditation Commission of Acupuncture and Oriental Medicine,
the approval process of the Bureau for Private Postsecondary
Education, and the board's approval process.
(b) The board shall pay for all of the costs associated with the
comprehensive analysis.
SEC. 6. Section 4934.2 is added to the Business and Professions
Code, to read:
4934.2. The board shall conduct the following studies and
reviews, and shall report its findings and recommendations to the
department and the Joint Legislative Sunset Review Committee no later
that September 1, 2004:
(a) The board shall conduct a comprehensive study of the use of
unlicensed acupuncture assistants and the need to license and
regulate those assistants.
(b) The board shall study and recommend ways to improve the
frequency and consistency of their auditing and the quality and
relevance of their courses.
SEC. 7. Section 4935 of the Business and Professions Code is
amended to read:
4935. (a) Any (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 practices
does not hold a current and valid license to practice
acupuncture or holds under this chapter
or to hold himself or herself out as practicing or engaging in
the practice of acupuncture, unless he or she possesses a
current and valid acupuncturist's license, is guilty of a misdemeanor
.
(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 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," "oriental
medicine," or any combination of those words, phrases, or
abbreviations of those words or phrases, or by representing that he
or she is trained, experienced, or an expert in the field of
acupuncture, oriental medicine, or Chinese medicine.
(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. 8. 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 if he
or she is guilty of unprofessional conduct that has
endangered or is likely to endanger the health, safety, or welfare of
the public .
Unprofessional conduct shall include, but not be limited to, the
following:
(a) Securing a license by fraud or deceit.
(b) Committing a fraudulent or dishonest act as an acupuncturist
resulting in substantial injury to another.
(c) 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 with safety to the public.
(d)
(b) Conviction of a crime substantially related to the
qualifications, functions, or duties of an acupuncturist, the record
of conviction being conclusive evidence thereof.
(e) Improper
(c) False or misleading advertising.
(f) Violating
(d) Aiding or abetting in, or violating or conspiring
to violate in, directly or indirectly, the
violation the terms of this chapter or any regulation
adopted by the board pursuant to this chapter .
(g) Gross negligence.
(h) Repeated negligent acts.
(i) Incompetence.
(j)
(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.
(k) The revocation, suspension, or other discipline, restriction,
or limitation imposed by another state upon a license or certificate
to practice acupuncture issued by that state, or the revocation,
suspension, or restriction of the authority to practice acupuncture
by an agency of the federal government, on grounds that would have
been grounds for disciplinary action in California of a licensee
under this chapter.
(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 or any professional health care license.
(i) Any action or conduct that would have warranted the denial of
the acupuncture license.
(j) The violation of any law or local ordinance on an
acupuncturist's business premises by an acupuncturist's employee or a
person who is working under the acupuncturist's professional license
or business permit, that is substantially related to the
qualifications, functions, or duties of an acupuncturist. These
violations shall subject the acupuncturist who employed the
individuals, or under whose acupuncturist license the employee is
working, to disciplinary action.
(k) The abandonment of a patient by the licentiate 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.
SEC. 9. Section 4955.1 is added to the Business and Professions
Code, to read:
4955.1. The board may deny, suspend, revoke, or impose
probationary conditions upon the license of any acupuncturist if he
or she is guilty of committing a fraudulent act including, but not be
limited to, any of the following:
(a) Securing a license by fraud or deceit.
(b) Committing a fraudulent or dishonest act as an acupuncturist.
(c) Committing any act involving dishonesty or corruption with
respect to the qualifications, functions, or duties of an
acupuncturist.
(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 their patients.
SEC. 10. Section 4955.2 is added to the Business and Professions
Code, to read:
4955.2. The board may deny, suspend, revoke, or impose
probationary conditions upon the license of any acupuncturist if he
or she is guilty of committing any one of the following:
(a) Gross negligence.
(b) Repeated negligent acts.
(c) Incompetence.
SEC. 11. Section 4960.2 is added to the Business and Professions
Code, 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 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. 12. Section 4977.2 of the Business and Professions Code is
amended to read:
4977.2. Except as provided in Section 13403 of the Corporations
Code, each director, shareholder, and office
officer of an acupuncture corporation, except an assistant
secretary and an assistant treasurer, shall be a licensed person as
defined by Section 13401 of the Corporations Code.
SEC. 13. 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.