Amended in Senate April 25, 2013

Amended in Senate April 9, 2013

Senate Bill No. 218

Introduced by Senator Yee

February 11, 2013

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 healing arts.

LEGISLATIVE COUNSEL’S DIGEST

SB 218, as amended, Yee. Healing arts.

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, as specified, is a crime.

This bill would, commencing May 1, 2014, require the board to issue a certificate to practice as a traditional Chinese medicine traumatologist to an applicant who meets certain education, training, and clinical experience requirements and pays a specified fee. This bill would require the board to establish the California Traditional Chinese Medicine Traumatology Committee to provide advice and carry out specified duties, including investigation and evaluation of whether an applicant meets those education, training, and clinical experience requirements.

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.

This bill would make it an unfair business practice to use the title of “certified traditional Chinese medicine traumatologist” without meeting these certification requirements and would authorize the board to suspend or revoke a certificate for unprofessional conduct, certain fraudulent acts, or specified crimes committed by the certificate holder. The bill would also 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.  California Traditional Chinese Medicine
Traumatologist

 

4950.  

As used in this article:

(a) “California certified traditional Chinese medicine
traumatologist” means a person who has been certified by the
California Traditional Chinese Medicine Traumatology Committee
to perform traditional Chinese medicine traumatology.

(b) “Committee” means, notwithstanding Section 4925, the
California Traditional Chinese Medicine Traumatology Committee.

(c) “Traditional Chinese medicine traumatology” includes a
range of treatments to address both acute and chronic
musculoskeletal conditions through stimulation of acupressure
points. Techniques include, but are not limited to, brushing,
kneading, rolling, pressing, rubbing, pushing, holding, and lifting
the areas between each of the joints to open the body’s defensive
chi and stimulate the energy movement in the meridians.

4950.1.  

(a) On or before March 1, 2014, the board shall
establish the California Traditional Chinese Medicine
Traumatology Committee within the board. The committee shall
consist of the following five members appointed by the board:

(1) One representative from the California Medical Association.

(2) One representative from the California Orthopaedic
Association.

(3) One representative from the Medical Board of California.

(4) Two representatives from a traditional Chinese medicine
traumatology clinical setting. These representatives shall be
selected by professional societies, associations, or other entities,
whose memberships are comprised solely of practitioners of
traditional Chinese medicine traumatology. To qualify as a
professional society or association, an entity shall have a dues
paying membership in the state of at least 30 individuals for the
last three years and shall have bylaws that require its members to
comply with a code of ethics.

(b) The board, in implementing this article, shall give specific
consideration to the recommendations of the committee.

(c) (1) Pursuant to Section 4950.2, the committee shall meet
and confer to determine an applicant’s qualifications, as prescribed
in Section 4950.2, including the level of experience and training
needed to qualify for California traditional Chinese medicine
traumatology certification.

(2) The committee shall advise the board on any other issues
pursuant to this article.

4950.2.  

(a)  begin insert The committee shall investigate all of the
documentation provided by the applicant and verify its authenticity
to evaluate whether an applicant meets the certification standards,
including the level of education, experience, and training to
sufficiently qualify for the traumatology certification, and shall
report its findings and determination to the board. end insert

begin insert (b) end insert begin insert   end insert Commencing May 1, 2014, the board shall issue a certificate
for certified traditional Chinese medicine traumatology to any
person who makes an application to the board and meets all of the
following requirements:

(1) Is at least 18 years of age.

(2) Is not subject to denial pursuant to Division 1.5 (commencing
with Section 475).

(3) Furnishes satisfactory evidence of education, training, and
clinical experience that meets one of the following standards:

(A) Passed an examination and received a certificate in
traditional Chinese medicine traumatology for completing a
curriculum in the subject. The curriculum for all applicants shall
provide for adequate instruction in the following subjects:

(i) Human anatomy and physiology.

(ii) Pathology.

(iii) Western diagnosis on traumatological injury.

(iv) Clinical management and medical ethics.

(v) Basic theory of traditional Chinese medicine.

(vi) Comparison of traditional Chinese medicine and western
medicine.

(vii) Meridian and acupoints.

(viii) Basic traditional Chinese medicine diagnosis.

(ix) Basic theory of traditional Chinese medicine traumatology.

(x) Traditional Chinese medicine diagnosis on traumatology.

(xi) Hands on Skills of Traditional Chinese Medicine
Traumatology I.

(xii) Hands on Skills of Traditional Chinese Medicine
Traumatology II.

(xiii) Chinese herbs and formulas for traumatology.

(xiv) Traditional Chinese medicine traumatology case study.

(xv) One thousand hours in a clinical internship on traditional
Chinese medicine traumatology.

(B)  begin delete Apprenticed end delete begin insert In the case of an applicant who completed an
apprenticeship end insert as a traditional Chinese medicine traumatologist
for 10 years prior to January 1, 2014 begin insert , furnishes satisfactory
evidence of completing education, training, and at least 10 years
clinical experience in traditional Chinese medicine traumatology end insert .

(C) In the case of an applicant who has completed education
and training outside of the United States or Canada, furnishes
satisfactory evidence of completing education, training, and at
least 10 years clinical experience in traditional Chinese medicine
traumatology.

begin delete

(b) The committee shall investigate all of the documentation
provided by the applicant and verify its authenticity to evaluate
whether an applicant meets the certification standards, including
the level of education, experience, and training to sufficiently
qualify for the traumatology certification and shall report its
findings and determination to the board.

end delete

4950.3.  

(a) An applicant for traditional Chinese medicine
traumatology certification shall file an application for that
certificate with the board.

(b) When submitting his or her application to the board, the
applicant shall pay an application fee in a reasonable amount
determined by the board, not to exceed two hundred dollars ($200),
for the regulatory cost to the board of processing the application.

(c) A certified traditional Chinese medicine traumatologist shall
renew his or her certificate every five years.

(d) 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,
according to the following:

(1) An annual renewal fee of one hundred dollars ($100).

(2) A delinquency fee of twenty-five dollars ($25).

(3) A fee for a duplicate or replacement engraved wall certificate
of fifteen dollars ($15).

(4) A fee for a duplicate or replacement renewal receipt/pocket
certificate of ten dollars ($10).

(e) Moneys received under this section shall be deposited in the
Acupuncture Fund for the purposes of carrying out this article.

4950.4.  

It is an unfair business practice for any person to hold
himself or herself out as a certified traditional Chinese medicine
traumatologist or begin insert to end insert use the title of “certified traditional Chinese
medicine traumatologist” without meeting the requirements of this
article.

4950.5.  

(a) A California certified traditional Chinese medicine
traumatologist shall not practice medicine, as provided in Section
2052.

(b) A California certified traditional Chinese medicine
traumatologist shall not practice within the scope of activities
regulated by the State Board of Chiropractic Examiners.

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
the certificate of any traditional Chinese medicine traumatologist
if he or she is guilty of unprofessional conduct. As used in this
section, “licensee” includes a certified traditional Chinese medicine
traumatologist.

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 bloodborne 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 Public Health 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 bloodborne 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 bloodborne
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 a licensee’s
business premises by a licensee’s employee or a person who is
working under the licensee’s professional license or business
permit, that is substantially related to the qualifications, functions,
or duties of the licensee. These violations shall subject the licensee
who employed the individuals, or under whose acupuncturist
license or traumatology certificate the employee is working, to
disciplinary action.

(k) The abandonment of a patient by the 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 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
begin insert certificate of any end insert certified traditional Chinese medicine
traumatologist if he or she is guilty of committing a fraudulent act,
including, but not limited to, 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 or certificate suspended or
revoked, or may deny a license or certificate, or may impose
probationary conditions upon a license or certificate, 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 the 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 to practice 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. If 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, immediately following Section 4964, to read:

4964.5.  

The provisions of this article apply to both licensed
acupuncturists 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 4950.3.

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, 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.