BILL NUMBER: SB 628 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 22, 2011
INTRODUCED BY Senator Yee
FEBRUARY 18, 2011
An act to amend Sections 4925, 4927, and 4937 of
27, 101, 130, 144, 149, 205, 730.5, 800, 4925, 4927,
4928, 4928.1, 4935, 4937, 4955, 4955.1, 4955.2, 4956, 4959, 4960.2,
4961, 4965, 4966, 4967, 4969, 4970, 4974, and 4975 of, to add Sec
tion 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 retitle the act as the Traditional Chinese
Medicine Licensure Act, would change the designation of
"acupuncturist" to Doctor of Traditional
" Traditional Chinese Medicine
Practitioner," and would define the term "
Traditional Chinese Medicine" to be identical to the term
"acupuncture." The bill would expand the scope of authorized
activities for these practitioners under their license to include the
performance of traumatology, as defined. The bill would also
create a process for the certification of traumatologists who would
be authorized to practice traumatology without a license as an
acupuncturist if practicing traumatology on or before a specified
date, and would create a subcommittee within the board to implement
the certification of traumatologists, subject to specified criteria.
The bill would set forth procedures for the renewal of an unexpired
or expired certificate to practice traumatology, and set forth
provisions related to unprofessional conduct and disciplinary
action of a traumatologist. The bill would provide that the
practice of traumatology without a certificate to practice
traumatology or a license to practice acupuncture is a crime, 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: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all
of the following:
(a) Traditional Chinese Medicine (TCM) comprises a system of
health care that originated in China more than 5,000 years ago and
has been provided in the United States for more than 150 years. TCM
is a comprehensive system for the assessment and treatment of acute
and chronic disorders, as well as preventative health care and
maintenance.
(b) The first written documentation on TCM is the Hung-Di
Nei-Jing, known as the Yellow Emperor's Canon of Internal Medicine.
Hung-Di Nei-Jing is the oldest medical textbook in the world;
different opinions date the book back to between 800 BCE and 200 BCE.
The Yellow Emperor's Canon of Internal Medicine lays a primary
foundation for the theories of Chinese medicine, which extensively
summarizes and systematizes the previous experience of treatment and
theories of medicine, such as the meridian theory, as well as many
other issues, including, but not limited to, physiology, pathology,
prevention, diagnosis, treatment, acupuncture, moxibustion, and tui
na.
(c) The Chinese medical text that first describes acupuncture was
in this book. Forms of acupuncture also include Chimsul, which is
part of traditional Korean medicine, and Kampo, which is part of
traditional Japanese medicine. Ancient Chinese text also reveals that
the medical benefits of massage therapy were recognized early on.
The tradition of massage therapy in China evolved from the knowledge
and approaches of doctors practicing TCM to include the beliefs of
martial artists, Buddhists, and Taoists.
(d) Traditional Chinese Medicine was formally systemized in the
1950s under the People's Republic of China. Government researchers
were sent throughout China to collect and document the practices and
theories of TCM. The Traditional Chinese Medicine we know today is
the official Chinese medicine practice that was derived from this
research.
(e) Currently in California, practitioners of TCM are recognized
as licensed acupuncturists. Acupuncture is one of the many modalities
within TCM. This nomenclature is misleading and problematic as the
scope of practice of a licensed acupuncturist includes other
modalities of TCM and not just acupuncture.
(f) Further, traumatology is one of the modalities that
constitutes TCM. It is a very important part of TCM science with a
complete theoretical system. Traumatology, like orthopedics, includes
a range of treatments to address both acute and chronic
musculoskeletal conditions, as well as many nonmusculoskeletal
conditions.
(g) Before China systemized its health care system, individuals
acquired their mastery of traumatology through a master-apprentice
relationship. Individuals learned from a master through hands-on
training. Although highly skilled, it is extremely difficult for
these practitioners to obtain proof of their training to qualify for
the existing requirement for licensure as an acupuncturist. A group
of these practitioners reside in the State of California.
(h) Accordingly, it is the intent of the Legislature in enacting
this measure to do the following:
(1) Change the name of the Acupuncture Board to the Traditional
Chinese Medicine Board and change the designation of an individual
who achieves licensure as an acupuncturist as a licensed Traditional
Chinese Medicine Practitioner.
(2) Create a process by which a currently practicing
traumatologist is able to obtain licensure as a traumatologist by
demonstrating expertise in traumatology in accordance with
established standards and criteria, to be administered by a
subcommittee under the Traditional Chinese Medicine Board.
SEC. 2. Section 27 of the Business and
Professions Code is amended to read:
27. (a) Each entity specified in subdivision (b) shall provide on
the Internet information regarding the status of every license
issued by that entity in accordance with the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code) and the Information Practices Act
of 1977 (Chapter 1 (commencing with Section 1798) of Title 1.8 of
Part 4 of Division 3 of the Civil Code). The public information to be
provided on the Internet shall include information on suspensions
and revocations of licenses issued by the entity and other related
enforcement action taken by the entity relative to persons,
businesses, or facilities subject to licensure or regulation by the
entity. In providing information on the Internet, each entity shall
comply with the Department of Consumer Affairs Guidelines for Access
to Public Records. The information may not include personal
information, including home telephone number, date of birth, or
social security number. Each entity shall disclose a licensee's
address of record. However, each entity shall allow a licensee to
provide a post office box number or other alternate address, instead
of his or her home address, as the address of record. This section
shall not preclude an entity from also requiring a licensee, who has
provided a post office box number or other alternative mailing
address as his or her address of record, to provide a physical
business address or residence address only for the entity's internal
administrative use and not for disclosure as the licensee's address
of record or disclosure on the Internet.
(b) Each of the following entities within the Department of
Consumer Affairs shall comply with the requirements of this section:
(1) The Acupuncture Traditional Chinese
Medicine Board shall disclose information on its licensees.
(2) The Board of Behavioral Sciences shall disclose information on
its licensees, including marriage and family therapists, licensed
clinical social workers, and licensed educational psychologists.
(3) The Dental Board of California shall disclose information on
its licensees.
(4) The State Board of Optometry shall disclose information
regarding certificates of registration to practice optometry,
statements of licensure, optometric corporation registrations, branch
office licenses, and fictitious name permits of its licensees.
(5) The Board for Professional Engineers and Land Surveyors shall
disclose information on its registrants and licensees.
(6) The Structural Pest Control Board shall disclose information
on its licensees, including applicators, field representatives, and
operators in the areas of fumigation, general pest and wood
destroying pests and organisms, and wood roof cleaning and treatment.
(7) The Bureau of Automotive Repair shall disclose information on
its licensees, including auto repair dealers, smog stations, lamp and
brake stations, smog check technicians, and smog inspection
certification stations.
(8) The Bureau of Electronic and Appliance Repair shall disclose
information on its licensees, including major appliance repair
dealers, combination dealers (electronic and appliance), electronic
repair dealers, service contract sellers, and service contract
administrators.
(9) The Cemetery and Funeral Bureau shall disclose information on
its licensees, including cemetery brokers, cemetery salespersons,
cemetery managers, crematory managers, cemetery authorities,
crematories, cremated remains disposers, embalmers, funeral
establishments, and funeral directors.
(10) The Professional Fiduciaries Bureau shall disclose
information on its licensees.
(11) The Contractors' State License Board shall disclose
information on its licensees in accordance with Chapter 9 (commencing
with Section 7000) of Division 3. In addition to information related
to licenses as specified in subdivision (a), the board shall also
disclose information provided to the board by the Labor Commissioner
pursuant to Section 98.9 of the Labor Code.
(12) The Board of Psychology shall disclose information on its
licensees, including psychologists, psychological assistants, and
registered psychologists.
(13) The Bureau for Private Postsecondary Education shall disclose
information on private postsecondary institutions under its
jurisdiction, including disclosure of notices to comply issued
pursuant to Section 94935 of the Education Code.
(c) "Internet" for the purposes of this section has the meaning
set forth in paragraph (6) of subdivision (e) of Section 17538.
SEC. 3. Section 101 of the Business and
Professions Code is amended to read:
101. The department is comprised of:
(a) The Dental Board of California.
(b) The Medical Board of California.
(c) The State Board of Optometry.
(d) The California State Board of Pharmacy.
(e) The Veterinary Medical Board.
(f) The California Board of Accountancy.
(g) The California Architects Board.
(h) The Bureau of Barbering and Cosmetology.
(i) The Board for Professional Engineers and Land Surveyors.
(j) The Contractors' State License Board.
(k) The Bureau for Private Postsecondary Education.
(l) The Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation.
(m) The Board of Registered Nursing.
(n) The Board of Behavioral Sciences.
(o) The State Athletic Commission.
(p) The Cemetery and Funeral Bureau.
(q) The State Board of Guide Dogs for the Blind.
(r) The Bureau of Security and Investigative Services.
(s) The Court Reporters Board of California.
(t) The Board of Vocational Nursing and Psychiatric Technicians.
(u) The Landscape Architects Technical Committee.
(v) The Division of Investigation.
(w) The Bureau of Automotive Repair.
(x) The Respiratory Care Board of California.
(y) The Acupuncture Traditional Chinese
Medicine Board.
(z) The Board of Psychology.
(aa) The California Board of Podiatric Medicine.
(ab) The Physical Therapy Board of California.
(ac) The Arbitration Review Program.
(ad) The Physician Assistant Committee.
(ae) The Speech-Language Pathology and Audiology Board.
(af) The California Board of Occupational Therapy.
(ag) The Osteopathic Medical Board of California.
(ah) The Naturopathic Medicine Committee.
(ai) The Dental Hygiene Committee of California.
(aj) The Professional Fiduciaries Bureau.
(ak) Any other boards, offices, or officers subject to its
jurisdiction by law.
SEC. 4. Section 130 of the Business and
Professions Code is amended to read:
130. (a) Notwithstanding any other provision of law, the term of
office of any member of an agency designated in subdivision (b) shall
be for a term of four years expiring on June 1.
(b) Subdivision (a) applies to the following boards or committees:
(1) The Medical Board of California.
(2) The California Board of Podiatric Medicine.
(3) The Physical Therapy Board of California.
(4) The Board of Registered Nursing.
(5) The Board of Vocational Nursing and Psychiatric Technicians.
(6) The State Board of Optometry.
(7) The California State Board of Pharmacy.
(8) The Veterinary Medical Board.
(9) The California Architects Board.
(10) The Landscape Architect Technical Committee.
(11) The Board for Professional Engineers and Land Surveyors.
(12) The Contractors' State License Board.
(13) The State Board of Guide Dogs for the Blind.
(14) The Board of Behavioral Sciences.
(15) The Court Reporters Board of California.
(16) The State Athletic Commission.
(17) The Osteopathic Medical Board of California.
(18) The Respiratory Care Board of California.
(19) The Acupuncture Traditional Chinese
Medicine Board.
(20) The Board of Psychology.
SEC. 5. Section 144 of the Business and
Professions Code is amended to read:
144. (a) Notwithstanding any other provision of law, an agency
designated in subdivision (b) shall require an applicant to furnish
to the agency a full set of fingerprints for purposes of conducting
criminal history record checks. Any agency designated in subdivision
(b) may obtain and receive, at its discretion, criminal history
information from the Department of Justice and the United States
Federal Bureau of Investigation.
(b) Subdivision (a) applies to the following:
(1) California Board of Accountancy.
(2) State Athletic Commission.
(3) Board of Behavioral Sciences.
(4) Court Reporters Board of California.
(5) State Board of Guide Dogs for the Blind.
(6) California State Board of Pharmacy.
(7) Board of Registered Nursing.
(8) Veterinary Medical Board.
(9) Registered Veterinary Technician Committee.
(10) Board of Vocational Nursing and Psychiatric Technicians.
(11) Respiratory Care Board of California.
(12) Hearing Aid Dispensers Advisory Commission.
(13) Physical Therapy Board of California.
(14) Physician Assistant Committee of the Medical Board of
California.
(15) Speech-Language Pathology and Audiology Board.
(16) Medical Board of California.
(17) State Board of Optometry.
(18) Acupuncture Traditional Chinese
Medicine Board.
(19) Cemetery and Funeral Bureau.
(20) Bureau of Security and Investigative Services.
(21) Division of Investigation.
(22) Board of Psychology.
(23) The California Board of Occupational Therapy.
(24) Structural Pest Control Board.
(25) Contractors' State License Board.
(26) Bureau of Naturopathic Medicine.
(27) The Professional Fiduciaries Bureau.
(c) The provisions of paragraph (24) of subdivision (b) shall
become operative on July 1, 2004. The provisions of paragraph (25) of
subdivision (b) shall become operative on the date on which
sufficient funds are available for the Contractors' State License
Board and the Department of Justice to conduct a criminal history
record check pursuant to this section or on July 1, 2005, whichever
occurs first.
SEC. 6. Section 149 of the Business and
Professions Code is amended to read:
149. (a) If, upon investigation, an agency designated in
subdivision (e) has probable cause to believe that a person is
advertising in a telephone directory with respect to the offering or
performance of services, without being properly licensed by or
registered with the agency to offer or perform those services, the
agency may issue a citation under Section 148 containing an order of
correction that requires the violator to do both of the following:
(1) Cease the unlawful advertising.
(2) Notify the telephone company furnishing services to the
violator to disconnect the telephone service furnished to any
telephone number contained in the unlawful advertising.
(b) This action is stayed if the person to whom a citation is
issued under subdivision (a) notifies the agency in writing that he
or she intends to contest the citation. The agency shall afford an
opportunity for a hearing, as specified in Section 125.9.
(c) If the person to whom a citation and order of correction is
issued under subdivision (a) fails to comply with the order of
correction after that order is final, the agency shall inform the
Public Utilities Commission of the violation and the Public Utilities
Commission shall require the telephone corporation furnishing
services to that person to disconnect the telephone service furnished
to any telephone number contained in the unlawful advertising.
(d) The good faith compliance by a telephone corporation with an
order of the Public Utilities Commission to terminate service issued
pursuant to this section shall constitute a complete defense to any
civil or criminal action brought against the telephone corporation
arising from the termination of service.
(e) Subdivision (a) shall apply to the following boards, bureaus,
committees, commissions, or programs:
(1) The Bureau of Barbering and Cosmetology.
(2) The Cemetery and Funeral Bureau.
(3) The Veterinary Medical Board.
(4) The Landscape Architects Technical Committee.
(5) The California Board of Podiatric Medicine.
(6) The Respiratory Care Board of California.
(7) The Bureau of Electronic and Appliance Repair, Home
Furnishings, and Thermal Insulation.
(8) The Bureau of Security and Investigative Services.
(9) The Bureau of Automotive Repair.
(10) The California Architects Board.
(11) The Speech-Language Pathology and Audiology Board.
(12) The Board for Professional Engineers and Land Surveyors.
(13) The Board of Behavioral Sciences.
(14) The Structural Pest Control Board within the Department of
Pesticide Regulation.
(15) The Acupuncture Traditional Chinese
Medicine Board.
(16) The Board of Psychology.
(17) The California Board of Accountancy.
(18) The Naturopathic Medicine Committee.
(19) The Physical Therapy Board of California.
(20) The Bureau for Private Postsecondary Education.
SEC. 7. Section 205 of the Business and
Professions Code is amended to read:
205. (a) There is in the State Treasury the Professions and
Vocations Fund. The fund shall consist of the following special
funds:
(1) Accountancy Fund.
(2) California Architects Board Fund.
(3) Athletic Commission Fund.
(4) Barbering and Cosmetology Contingent Fund.
(5) Cemetery Fund.
(6) Contractors' License Fund.
(7) State Dentistry Fund.
(8) State Funeral Directors and Embalmers Fund.
(9) Guide Dogs for the Blind Fund.
(10) Home Furnishings and Thermal Insulation Fund.
(11) California Architects Board-Landscape Architects Fund.
(12) Contingent Fund of the Medical Board of California.
(13) Optometry Fund.
(14) Pharmacy Board Contingent Fund.
(15) Physical Therapy Fund.
(16) Private Investigator Fund.
(17) Professional Engineers' and Land Surveyors' Fund.
(18) Consumer Affairs Fund.
(19) Behavioral Sciences Fund.
(20) Licensed Midwifery Fund.
(21) Court Reporters' Fund.
(22) Veterinary Medical Board Contingent Fund.
(23) Vocational Nurses Account of the Vocational Nursing and
Psychiatric Technicians Fund.
(24) Electronic and Appliance Repair Fund.
(25) Geology and Geophysics Fund.
(26) Dispensing Opticians Fund.
(27) Acupuncture Traditional Chinese
Medicine Fund.
(28) Physician Assistant Fund.
(29) Board of Podiatric Medicine Fund.
(30) Psychology Fund.
(31) Respiratory Care Fund.
(32) Speech-Language Pathology and Audiology Fund.
(33) Board of Registered Nursing Fund.
(34) Psychiatric Technician Examiners Account of the Vocational
Nursing and Psychiatric Technicians Fund.
(35) Animal Health Technician Examining Committee Fund.
(36) State Dental Hygiene Fund.
(37) State Dental Assistant Fund.
(38) Hearing Aid Dispensers Account of the Speech-Language
Pathology and Audiology Fund.
(b) For accounting and recordkeeping purposes, the Professions and
Vocations Fund shall be deemed to be a single special fund, and each
of the several special funds therein shall constitute and be deemed
to be a separate account in the Professions and Vocations Fund. Each
account or fund shall be available for expenditure only for the
purposes as are now or may hereafter be provided by law.
SEC. 8. Section 730.5 of the Business
and Professions Code is amended to read:
730.5. (a) It is unprofessional conduct and a crime, as provided
in Section 4935, for a physician and surgeon, osteopathic physician,
dentist, or podiatrist to direct or supervise the performance of
acupuncture involving the application of a needle to the body of a
human being by a person licensed under this division who is not
licensed pursuant to the Acupuncture
Traditional Chinese Medicine Licensure Act established by
Chapter 12 (commencing with Section 4925).
(b) It is unprofessional conduct and a crime, as provided in
Section 4935, for a person licensed under this division who is not
licensed pursuant to the Acupuncture
Traditional Chinese Medicine Licensure Act established by
Chapter 12 (commencing with Section 4925) to perform acupuncture
involving the application of a needle to the body of a human being at
the direction or under the supervision of a physician and surgeon,
osteopathic physician, dentist, or podiatrist.
SEC. 9. Section 800 of the Business and
Professions Code is amended to read:
800. (a) The Medical Board of California, the Board of
Psychology, the Dental Board of California, the Osteopathic Medical
Board of California, the State Board of Chiropractic Examiners, the
Board of Registered Nursing, the Board of Vocational Nursing and
Psychiatric Technicians, the State Board of Optometry, the Veterinary
Medical Board, the Board of Behavioral Sciences, the Physical
Therapy Board of California, the California State Board of Pharmacy,
the Speech-Language Pathology and Audiology and Hearing Aid
Dispensers Board, the California Board of Occupational Therapy, and
the Acupuncture Traditional Chinese Medicine
Board shall each separately create and maintain a central file
of the names of all persons who hold a license, certificate, or
similar authority from that board. Each central file shall be created
and maintained to provide an individual historical record for each
licensee with respect to the following information:
(1) Any conviction of a crime in this or any other state that
constitutes unprofessional conduct pursuant to the reporting
requirements of Section 803.
(2) Any judgment or settlement requiring the licensee or his or
her insurer to pay any amount of damages in excess of three thousand
dollars ($3,000) for any claim that injury or death was proximately
caused by the licensee's negligence, error or omission in practice,
or by rendering unauthorized professional services, pursuant to the
reporting requirements of Section 801 or 802.
(3) Any public complaints for which provision is made pursuant to
subdivision (b).
(4) Disciplinary information reported pursuant to Section 805,
including any additional exculpatory or explanatory statements
submitted by the licentiate pursuant to subdivision (f) of Section
805. If a court finds, in a final judgment, that the peer review
resulting in the 805 report was conducted in bad faith and the
licensee who is the subject of the report notifies the board of that
finding, the board shall include that finding in the central file.
For purposes of this paragraph, "peer review" has the same meaning as
defined in Section 805.
(5) Information reported pursuant to Section 805.01, including any
explanatory or exculpatory information submitted by the licensee
pursuant to subdivision (b) of that section.
(b) Each board shall prescribe and promulgate forms on which
members of the public and other licensees or certificate holders may
file written complaints to the board alleging any act of misconduct
in, or connected with, the performance of professional services by
the licensee.
If a board, or division thereof, a committee, or a panel has
failed to act upon a complaint or report within five years, or has
found that the complaint or report is without merit, the central file
shall be purged of information relating to the complaint or report.
Notwithstanding this subdivision, the Board of Psychology, the
Board of Behavioral Sciences, and the Respiratory Care Board of
California shall maintain complaints or reports as long as each board
deems necessary.
(c) The contents of any central file that are not public records
under any other provision of law shall be confidential except that
the licensee involved, or his or her counsel or representative, shall
have the right to inspect and have copies made of his or her
complete file except for the provision that may disclose the identity
of an information source. For the purposes of this section, a board
may protect an information source by providing a copy of the material
with only those deletions necessary to protect the identity of the
source or by providing a comprehensive summary of the substance of
the material. Whichever method is used, the board shall ensure that
full disclosure is made to the subject of any personal information
that could reasonably in any way reflect or convey anything
detrimental, disparaging, or threatening to a licensee's reputation,
rights, benefits, privileges, or qualifications, or be used by a
board to make a determination that would affect a licensee's rights,
benefits, privileges, or qualifications. The information required to
be disclosed pursuant to Section 803.1 shall not be considered among
the contents of a central file for the purposes of this subdivision.
The licensee may, but is not required to, submit any additional
exculpatory or explanatory statement or other information that the
board shall include in the central file.
Each board may permit any law enforcement or regulatory agency
when required for an investigation of unlawful activity or for
licensing, certification, or regulatory purposes to inspect and have
copies made of that licensee's file, unless the disclosure is
otherwise prohibited by law.
These disclosures shall effect no change in the confidential
status of these records.
SECTION 1. SEC. 10. Section 4925 of
the Business and Professions Code is amended to read:
4925. (a) This chapter constitutes the chapter on acupuncture of
the Business and Professions Code.
This chapter shall be known and may be cited as the
Acupuncture Traditional Chinese Medicine
Licensure Act. Whenever a reference is made to the Traditional
Chinese Medicine Licensure Act or the Acupuncture Licensure Act
by the provisions of any statute, it is to be construed as referring
to the provisions of this chapter.
(b) Any reference in this chapter, or to the regulations
pertaining thereto, to "certificate" or "certification" shall
hereafter mean "license" or "licensure." Any reference to the term
"certifying" means "licensing," and the term "certificate holder"
means "licensee." Any reference to "licensee" in Article 4
(commencing with Section 4955) shall also mean a traumatologist who
holds a certificate pursuant to Article 3 (commencing with Secti
on 4950).
Any reference to the "Acupuncture Committee" or "committee" means
the "Acupuncture "Traditional Chinese
Medicine Board" or "board."
(c) The title "acupuncturist," as applied to an individual to whom
a license has been issued to practice acupuncture pursuant to this
chapter that is in effect and is not suspended or revoked, is renamed
Doctor of Traditional Chinese Medicine
Traditional Chinese Medicine Practitioner . Any reference by
the provisions of this chapter, this code or other codes, or in any
statute or regulation to an acupuncturist shall be deemed a reference
to a Doctor of Traditional Chinese Medicine
Traditional Chinese Medicine Practitioner .
SEC. 2. SEC. 11. Section 4927 of the
Business and Professions Code is amended to read:
4927. As used in this chapter, unless the context otherwise
requires:
(a) "Board" means the Acupuncture
Traditional Chinese Medicine Board.
(b) "Person" means any individual, organization, or corporate
body, except that only individuals may be licensed under this
chapter.
(c) "Acupuncturist" means an individual to whom a license has been
issued to practice acupuncture pursuant to this chapter, which is in
effect and is not suspended or revoked. Any reference to
acupuncturist "acupuncturist" in this chapter,
this code or other codes, or in any statute or regulation shall be
deemed to mean a Doctor of Traditional Chinese Medicine
Traditional Chinese Medicine Practitioner .
(d) "Acupuncture" or "the practice of Traditional Chinese
Medicine" means the stimulation of a certain point or points on
or near the surface of the body by the insertion of needles to
prevent or modify the perception of pain or to normalize
physiological functions, including pain control, for the treatment of
certain diseases or dysfunctions of the body and includes the
techniques of electroacupuncture, cupping, and moxibustion.
SEC. 12. Section 4928 of the Business
and Professions Code is amended to read:
4928. The Acupuncture Board board ,
which consists of seven members, shall enforce and administer this
chapter.
This section shall remain in effect only until January 1, 2013,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2013, deletes or extends that date.
The repeal of this section renders the board subject to the review
required by Division 1.2 (commencing with Section 473)
Article 7.5 (commencing with Section 9147.7) of
Chapter 1.5 of Part 1 of Division 2 of the Government Code .
SEC. 13. Section 4928.1 of the Business
and Professions Code is amended to read:
4928.1. Protection of the public shall be the highest priority
for the Acupuncture Board board in
exercising its licensing, regulatory, and disciplinary functions.
Whenever the protection of the public is inconsistent with other
interests sought to be promoted, the protection of the public shall
be paramount.
SEC. 14. 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 or to hold himself or herself out as
practicing or engaging in the practice of acupuncture , or to
engage in the practice of traumatology without a current or valid
certificate as a traumatologist or a current or valid license as an
acupuncturist or to hold himself or herself out as practicing or
engaging in the practice of traumatology without a
certificate or license under 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 to practice 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 or
traumatology involving the application of a needle to the human
body, performs any acupuncture or traumatology technique
or method involving the application of a needle to the human body, or
directs, manages, or supervises another person in performing
acupuncture or traumatology 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, or 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 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. 3. SEC. 15. Section 4937 of the
Business and Professions Code is amended to read:
4937. (a) An acupuncturist's license
authorizes the holder thereof:
(a)
(1) To engage in the practice of acupuncture.
(b)
(2) To perform or prescribe the use of Asian massage,
acupressure, breathing techniques, exercise, heat, cold, magnets,
nutrition, diet, herbs, plant, animal, and mineral products, and
dietary supplements to promote, maintain, and restore health. Nothing
in this section prohibits any person who does not possess an
acupuncturist's license or another license as a healing arts
practitioner from performing, or prescribing the use of any modality
listed in this subdivision.
(c)
(3) To practice traumatology. Traumatology includes a
range of treatments to address both acute and chronic musculoskeletal
conditions, as well as many nonmusculoskeletal conditions.
Techniques include, but are not limited to, brushing, kneading,
rolling, pressing, and rubbing the areas between each of the joints
to open the body's defensive chi and stimulate the energy movement in
both meridians and the muscles so that the licensee is able to use
range of motion, traction, and massage with the stimulation of
acupuncture points.
(d)
(b) For purposes of this section, a "magnet" means a
mineral or metal that produces a magnetic field without the
application of an electric current.
(e)
(c) For purposes of this section, "plant, animal, and
mineral products" means naturally occurring substances of plant,
animal, or mineral origin, except that it does not include synthetic
compounds, controlled substances or dangerous drugs as defined in
Sections 4021 and 4022, or a controlled substance listed in Chapter 2
(commencing with Section 11053) of Division 10 of the Health and
Safety Code.
(f)
(d) For purposes of this section, "dietary supplement"
has the same meaning as defined in subsection (ff) of Section 321 of
Title 21 of the United States Code, except that dietary supplement
does not include controlled substances or dangerous drugs as defined
in Section 4021 or 4022, or a controlled substance listed in Chapter
2 (commencing with Section 11053) of Division 10 of the Health and
Safety Code.
SEC. 16. 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 February 1, 2012, the board shall
establish a traumatology subcommittee within the board.
(b) The traumatology subcommittee shall consist of six members
composed of representatives from the clinical and academic settings
of traumatology.
(c) The traumatology subcommittee shall, on or before March 1,
2012, review the scope of practice of traumatology and shall create a
certification process for the certification of individuals as
traumatologists, on and after March 1, 2012, who meet a minimum level
of training and expertise.
(d) (1) The standards and criteria the subcommittee shall utilize
in determining whether an individual may be issued a certificate
pursuant to subdivision (c) shall be based upon training and
expertise in traumatology that includes, but is not limited to, the
following:
(A) Knowledge of the practice and theories of traumatology.
(B) Experience in practicing traumatology.
(C) Clinical or practical experience in treating fractures,
dislocations, injuries of muscles and tendons, and internal traumatic
syndrome.
(D) Treatment of qi injuries.
(E) Treatment through the use of therapeutic principles of motion
and quiescence.
(F) Treatment in orthopedics through the use of traumatology.
(G) Treatment through manipulation or fixation and functional
exercise.
(H) Competent use of topically applied medicines in orthopedics
and traumatology.
(I) Basic manipulations in tendon-smoothing, such as deep massage,
kneading manipulation, scrubbing manipulation, rolling manipulation,
striking manipulation, or grasping and pinching manipulation.
(2) The subcommittee shall also take into consideration whether
the applicant was trained through an apprenticeship program and how
long the individual has practiced traumatology.
(e) On and after March 1, 2012, the traumatology subcommittee
shall issue a certificate to practice traumatology only to a person
who satisfies the standards set forth in subdivisions (c) and (d) and
who was engaged in the practice of traumatology on or before January
1, 2012.
(f) An applicant for certification as a traumatologist under this
section shall apply for certification on a form to be developed by
the board, and shall pay an application fee in the amount of
seventy-five dollars ($75) when submitting his or her application to
the subcommittee.
(g) Moneys received under this section shall be deposited into the
Traditional Chinese Medicine Fund for purposes of this chapter.
(h) An applicant engaged in the practice of traumatology on or
before January 1, 2012, shall have until March 1, 2013, to file an
application for a certificate to lawfully practice traumatology in
this state. On and after March 1, 2013, the subcommittee shall not
issue an initial license to any applicant. On and after March 1,
2013, the subcommittee may issue only a renewal of a certificate
under this section or as specified. An individual who is not
qualified to receive a certificate under this section, or who fails
to apply for certification under this section by March 1, 2013, shall
be required to be licensed as an acupuncturist in order to practice
traumatology.
(i) (1) Pursuant to Section 4965, the renewal of an unexpired
certificate issued under this section shall be required every five
years and the same application requirements and applicant fee
described under subdivision (f), and the same criteria and standards
specified in subdivisions (c) and (d), shall apply to renewal of an
unexpired certificate.
(2) Renewal of an expired certificate shall be governed by the
procedures specified in Sections 4966, 4967, and 4969.
(j) An applicant who is denied a certificate under this section
may appeal that denial to the board pursuant to the same procedures
that apply to an applicant for licensure as an acupuncturist.
(k) A licensee under this section shall be subject to the
disciplinary provisions set forth in Article 4 (commencing with
Section 4955), subject to enforcement by the board.
(l) For purposes of this section, "traumatology" has the same
meaning as used in Section 4937.
(m) The practice of traumatology without a certificate issued
pursuant to this section or a license to practice acupuncture is the
unlawful practice of acupuncture as set forth in Section 4935.
(n) The subcommittee from time to time, and no less than every
five years, shall review and update or modify the standards that
apply for renewal of a certificate with regard to the standards set
forth in subdivisions (c) and (d).
SEC. 17. 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 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
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 , 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 traumatologist's business premises by
an acupuncturist's or traumatologist's employee or a
person who is working under the acupuncturist's or
traumatologist's professional license or business permit, that
is substantially related to the qualifications, functions, or duties
of an acupuncturist or traumatologist . These violations
shall subject the acupuncturist or traumatologist who
employed the individuals, or under whose acupuncturist
acupuncture license or traumatology
certificate the employee is working, to disciplinary action.
(k) The abandonment of a patient by the licentiate
licensee 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 traumatology .
SEC. 18. 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
traumatologist 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
or traumatologist .
(c) Committing any act involving dishonesty or corruption with
respect to the qualifications, functions, or duties of an
acupuncturist or 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 their his or her
patients.
SEC. 19. 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
traumatologist if he or she is guilty of committing any one of
the following:
(a) Gross negligence.
(b) Repeated negligent acts.
(c) Incompetence.
SEC. 20. 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 which
that is substantially related to the qualifications,
functions, or duties of an acupuncturist or 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 the provisions of 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. 21. Section 4959 of the Business
and Professions Code is amended to read:
4959. (a) The board may request the administrative law judge,
under his or her proposed decision in resolution of a disciplinary
proceeding before the board, to direct any licensee found guilty of
unprofessional conduct to pay to the board a sum not to exceed actual
and reasonable costs of the investigation and prosecution of the
case.
(b) The costs to be assessed shall be fixed by the administrative
law judge and shall not in any event be increased by the board. When
the board does not adopt a proposed decision and remands the case to
an administrative law judge, the administrative law judge shall not
increase the amount of any costs assessed in the proposed decision.
(c) When the payment directed in the board's order for payment of
costs is not made by the licensee, the board may enforce the order
for payment in the superior court in the county where the
administrative hearing was held. This right of enforcement shall be
in addition to any other rights the board may have as to any licensee
directed to pay costs.
(d) In any judicial action for the recovery of costs, proof of the
board's decision shall be conclusive proof of the validity of the
order of payment and the terms for payment.
(e) All costs recovered under this section shall be considered a
reimbursement for costs incurred and shall be deposited in the
Acupuncture Traditional Chinese Medicine
Fund.
SEC. 22. 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 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. 23. 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 traumatology in this state shall
register, on forms prescribed by the Acupuncture Board
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 has no place of practice, he or she shall
notify the board of that fact. A person licensed by the board shall
register within 30 days after the date of his or her licensure.
(b) An acupuncturist A licensee
shall post his or her license in a conspicuous location in his or her
place of practice at all times. If an acupuncturist or
traumatologist has more than one place of practice, he or she
shall obtain from the board a duplicate license for each additional
location and post the duplicate license at each location.
(c) Any licensee 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 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.
An applicant for renewal of licensure 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. 24. 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 traumatology licensees.
SEC. 25. Section 4965 of the Business
and Professions Code is amended to read:
4965. (a) Licenses (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.
(b)
(2) The board shall establish and administer a birth
date renewal program for purposes of this subdivision .
(c)
(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 to practice 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. 26. Section 4966 of the Business
and Professions Code is amended to read:
4966. Except
(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 of 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. Renewal
(b) Except as provided in Section 4969, a certificate to practice
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 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. 27. 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) Takes 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 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 traumatologist .
(c) Pays all of the fees that would be required if an initial
application for licensure or certification was being made.
The
(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. 28. 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
traumatologist , while the license or certificate
remains suspended, and until it is reinstated, to engage in the
practice of acupuncture or 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. 29. Section 4970 of the Business
and Professions Code is amended to read:
4970. The amount of fees prescribed for licensed acupuncturists
shall be those set forth in this section unless a lower fee is fixed
by the board in accordance with Section 4972:
(a) The application fee shall be seventy-five dollars ($75).
(b) The examination and reexamination fees shall be the actual
cost to the Acupuncture Board board for
the development and writing of, grading, and administering of each
examination.
(c) The initial license fee shall be three hundred twenty-five
dollars ($325), except that if the license will expire less than one
year after its issuance, then the initial license fee shall be an
amount equal to 50 percent of the initial license fee.
(d) The renewal fee shall be three hundred twenty-five dollars
($325) and in the event a lower fee is fixed by the board, shall be
an amount sufficient to support the functions of the board in the
administration of this chapter. The renewal fee shall be assessed on
an annual basis until January 1, 1996, and on and after that date the
board shall assess the renewal fee biennially.
(e) The delinquency fee shall be set in accordance with Section
163.5.
(f) The application fee for the approval of a school or college
under Section 4939 shall be three thousand dollars ($3,000).
(g) The duplicate wall license fee is an amount equal to the cost
to the board for the issuance of the duplicate license.
(h) The duplicate renewal receipt fee is ten dollars ($10).
(i) The endorsement fee is ten dollars ($10).
(j) The fee for a duplicate license for an additional office
location as required under Section 4961 shall be fifteen dollars
($15).
SEC. 30. Section 4974 of the Business
and Professions Code is amended to read:
4974. The board shall report to the Controller at the beginning
of each month for the month preceding the amount and source of all
revenue received by it pursuant to this chapter, and shall pay the
entire amount thereof to the Treasurer for deposit in the
Acupuncture Traditional Chinese Medicine Fund,
which fund is created to carry out the provisions of this chapter.
SEC. 31. Section 4975 of the Business
and Professions Code is amended to read:
4975. An acupuncture corporation is a corporation which
that is authorized to render professional
services, as defined in Section 13401 of the Corporations Code, so
long as that corporation and its shareholders, officers, directors,
and employees rendering professional services who are acupuncturists
are in compliance with the Moscone-Knox Professional Corporation Act,
this article and all other statutes and regulations now or hereafter
enacted or adopted pertaining to that corporation and the conduct of
its affairs.
With respect to an acupuncture corporation, the governmental
agency referred to in the Moscone-Knox Professional Corporation Act
is the Acupuncture Board board .
SEC. 32. 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.