MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Public Health and Welfare

By: Representatives Peranich, Fredericks, Read

AN ACT TO PROVIDE FOR THE LICENSURE AND REGULATION OF THE PRACTICE OF ACUPUNCTURE; TO CREATE THE STATE BOARD OF ACUPUNCTURE AND PRESCRIBE ITS POWERS AND DUTIES; TO PROVIDE THAT THE STATE DEPARTMENT OF HEALTH SHALL PROVIDE NECESSARY ADMINISTRATIVE AND FISCAL SUPPORT FOR THE BOARD; TO PRESCRIBE THE QUALIFICATIONS FOR A PERSON TO BE ELIGIBLE TO TAKE THE LICENSURE EXAMINATION; TO PRESCRIBE THE QUALIFICATIONS FOR AN ACUPUNCTURE SCHOOL TO BE ACCEPTABLE; TO PROVIDE FOR LICENSE RENEWAL AND CONTINUING EDUCATION REQUIREMENTS; TO PROVIDE FOR EXAMINATION AND LICENSE FEES; TO PRESCRIBE CERTAIN SANITATION PRACTICES TO BE FOLLOWED IN THE PRACTICE OF ACUPUNCTURE; TO SPECIFY GROUNDS FOR DISCIPLINARY ACTION BY THE BOARD; TO AUTHORIZE CERTAIN DISCIPLINARY ACTIONS THAT THE BOARD MAY TAKE AGAINST LICENSEES; TO PROVIDE CRIMINAL PENALTIES FOR CERTAIN ACTIONS; TO PROVIDE THAT THIS ACT DOES NOT APPLY TO ANY HEALTH CARE PROFESSIONAL LICENSED UNDER ANOTHER STATE STATUTE; TO CREATE A SPECIAL FUND IN THE STATE TREASURY FOR MONIES RECEIVED BY THE BOARD, WHICH SHALL BE USED BY THE BOARD IN IMPLEMENTING AND ADMINISTERING THE ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The Legislature finds that the interests of the public health require the regulation of the practice of acupuncture in this state for the purpose of protecting the health, safety, and welfare of our citizens while making this healing art available to those who seek it.

SECTION 2. As used in this act:

(a) "Acupuncture" means treatment by means of mechanical, thermal or electrical stimulation effected by the insertion of acupuncture needles at a point or combination of points on the surface of the body predetermined on the basis of the theory of the physiological interrelationship of body organs with an associated point or combination of points, or the application of heat or electrical stimulation to such point or points, for the purpose of inducing anesthesia, relieving pain, or healing diseases, disorders and dysfunctions of the body, or achieving a therapeutic or prophylactic effect with respect thereto.

(b) "Acupuncturist" means any person licensed under this act to practice acupuncture.

(c) "Board" means the State Board of Acupuncture.

(d) "License" means the document of authorization issued by the board for a person to engage in the practice of acupuncture.

SECTION 3. (1) The State Board of Acupuncture is created to license and regulate acupuncturists. The board shall be composed of five (5) members, all of whom shall be licensed acupuncturists.

(2) For at least four (4) years immediately preceding his or her appointment, each appointee to the board must have been actively engaged as an acupuncturist, and during the two (2) years preceding his or her appointment, must have spent the majority of the time devoted to that activity in this state. The initial appointees to the board shall be deemed to be and shall become licensed practicing acupuncturists immediately upon their appointment and qualification as members of the board. All subsequent appointees to the board must be licensed acupuncturists before their appointment.

(3) The Governor shall appoint the members of the board, with the advice and consent of the Senate. The initial appointments to the board shall be made as follows: One (1) member shall be appointed for a term that expires on June 30, 2000, two (2) members shall be appointed for terms that expire on June 30, 2001, and two (2) members shall be appointed for terms that expire on June 30, 2003. After the expiration of the initial terms, all subsequent appointments shall be made by the Governor for terms of four (4) years from the expiration date of the previous term. Upon the expiration of his or her term of office, a board member shall continue to serve until his or her successor has been appointed and has qualified. No person may be appointed more than once to fill an unexpired term or more than two (2) consecutive full terms.

(4) Any vacancy on the board before the expiration of a term shall be filled by appointment of the Governor for the remainder of the unexpired term.

(5) The board shall select one (1) of its members to serve as chairman during the term of his or her appointment to the board. No person may serve as chairman for more than four (4) years.

(6) Three (3) members of the board shall constitute a quorum for all business.

(7) Board members shall receive no compensation for their services, but shall be reimbursed for their actual and necessary expenses incurred in the performance of official board business as provided in Section 25-3-41.

(8) No board member shall participate in any matter before the board in which he or she has a pecuniary interest, personal bias or other similar conflict of interest.

(9) The State Department of Health shall provide administrative and fiscal support for the board as necessary for the board to carry out this act, and the board shall pay the State Department of Health the cost of providing that support.

SECTION 4. The board may adopt rules and regulations that are necessary to carry out the powers and duties conferred upon the board by this act, in accordance with the Administrative Procedures Law (Section 25-43-1 et seq.).

SECTION 5. (1) It is unlawful for any person to practice acupuncture in this state unless the person has been licensed by the board, is in a board-approved course of study, or is otherwise exempted by this act.

(2) Except for persons licensed by reciprocity under Section 6 of this act, no person shall be licensed to practice acupuncture unless he has passed an examination and has been found to have the necessary qualifications as prescribed in the rules adopted by the board. To be eligible for the examination, an applicant must:

(a) Be at least twenty-one (21) years of age;

(b) Have completed at least forty-eight (48) semester hours of courses from an accredited postsecondary institution, including basic science courses as determined by the board;

(c) Be a graduate of an acceptable acupuncture school whose entrance requirements and course of instruction meet the standards set by the board; and

(d) Have paid the required fees, which shall be set by the board by rule as follows:

(i) An application fee not exceeding Two Hundred Fifty Dollars ($250.00); and

(ii) An examination fee not exceeding Three Hundred Fifty Dollars ($350.00), plus the actual per applicant cost to the board for purchase of the written and practical portions of the examination from a national organization approved by the board; or

(iii) A reexamination fee not exceeding Five Hundred Dollars ($500.00), plus the actual per applicant cost to the board for purchase of the written and practical portions of the examination from a national organization approved by the board.

(3) To be an acceptable acupuncture school, the school must:

(a) Maintain a resident course of instruction equivalent to not less than six (6) terms of four (4) months each for a total of not less than one thousand eight hundred (1,800) instructional hours;

(b) Provide supervised patient treatment for at least two (2) terms of the resident court of instruction;

(c) Maintain a course of instruction in anatomy-histology, bacteriology, physiology, symptomatology, pathology, meridian and point locations, hygiene, sanitation practices, and public health; and

(d) Have the necessary teaching force and facilities for proper instruction in required subjects.

(4) In establishing standards for the entrance requirements and course of instruction of an acupuncture school, the board may consider the standards set by the National Accreditation Commission for Schools and Colleges of Acupuncture and Oriental Medicine.

(5) The examination shall test the applicant's competency and knowledge of the practice of acupuncture. At the request of any applicant, oriental nomenclature for the points shall be used in the examination. The examination shall include a practical examination of the knowledge and skills required to practice acupuncture, covering diagnostic and treatment techniques and procedures. The board shall give an examination at least once each calendar year, and all applicants shall be notified in writing of the date, time and place of the examination. The board may utilize a nationally recognized examination if it deems the national exam to be sufficient to qualify a person for licensure in this state.

SECTION 6. (1) The board shall issue a license to practice acupuncture in this state to any person who meets the requirements of this act, and who passes the examination given by the board. A license shall be valid for one (1) year, unless earlier revoked.

(2) The board shall renew a license upon receipt of the renewal application and the fee set by the board by rule, not to exceed Three Hundred Dollars ($300.00).

(3) The board may waive any prerequisite to obtaining a license for an applicant after reviewing the applicant's credentials and determining that the applicant holds a valid license from another state that has license requirements substantially equivalent to those of this state. The initial fee for a license by reciprocity shall not exceed Four Hundred Dollars ($400.00).

(4) The board by rule shall prescribe continuing education requirements, not to exceed fifteen (15) hours annually, as a condition for renewal of a license. The criteria for those programs or courses shall be approved by the board. In order to meet continuing education requirements, prior approval by the board of the programs or courses is required. All education programs that contribute to the advancement, extension, or enhancement of professional skills and knowledge related to the practice of acupuncture, whether conducted by a nonprofit or profitmaking entity, are eligible for approval. The board may set a fee, not to exceed One Hundred Dollars ($100.00), for each continuing education provider or program submitted for approval.

SECTION 7. (1) The board shall adopt rules relating to the prevention of infection, the safe disposal of any potentially infectious materials, and other requirements to protect the health, safety, and welfare of the public.

(2) All acupuncture needles that are to be used on a patient must be presterilized and disposable, and each needle may be used only once. The use of staples in the practice of acupuncture is unlawful.

(3) Sanitation practices in the practice of acupuncture shall include:

(a) Hands shall be washed with soap and water or other disinfectant before handling needles and between treatment of different patients; and

(b) Skin in the area of penetration shall be thoroughly swabbed with alcohol or other germicidal solution before inserting needles.

SECTION 8. (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

(a) Attempting to obtain, obtaining, or renewing a license to practice acupuncture by bribery, by fraudulent misrepresentations, or through an error of the board.

(b) Having a license to practice acupuncture revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.

(c) Being convicted or found guilty, regardless of adjudication, in any jurisdiction of a crime that directly relates to the practice of acupuncture or to the ability to practice acupuncture. Any plea of nolo contendere shall be considered a conviction for purposes of this act.

(d) False, deceptive, or misleading advertising or advertising that claims that acupuncture is useful in curing any disease.

(e) Advertising, practicing, or attempting to practice under a name other than one's own.

(f) Failing to report to the board any person who the licensee knows is in violation of this act or of the rules of the board.

(g) Aiding, assisting, procuring, employing, or advising any unlicensed person to practice acupuncture contrary to this act or to a rule of the board.

(h) Failing to perform any statutory or legal obligation placed upon a licensed acupuncturist.

(i) Making or filing a report that the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed acupuncturist.

(j) Exercising influence within a patient-acupuncturist relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her acupuncturist.

(k) Making deceptive, untrue, or fraudulent representations in the practice of acupuncture or employing a trick or scheme in the practice of acupuncture when such scheme or trick fails to conform to the generally prevailing standards of treatment in the community.

(l) Soliciting patients, either personally or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct. A solicitation is any communication that directly or implicitly requests an immediate oral response from the recipient.

(m) Failing to keep written medical records justifying the course of treatment of the patient.

(n) Exercising influence on the patient to exploit the patient for the financial gain of the licensee or of a third party.

(o) Being unable to practice acupuncture with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.

(p) Gross or repeated malpractice or the failure to practice acupuncture with that level of care, skill, and treatment which is recognized by a reasonably prudent similar acupuncturist as being acceptable under similar conditions and circumstances.

(q) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities that the licensee knows or has reason to know that he or she is not competent to perform.

(r) Delegating professional responsibilities to a person when the licensee delegating those responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.

(s) Violating any provision of this act, a rule of the board, or a lawful order of the board previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the board.

(t) Conspiring with another to commit an act, or committing an act, that would tend to coerce, intimidate, or preclude another licensee from lawfully advertising his or her services.

(u) Fraud or deceit or gross negligence, incompetence, or misconduct in the operation of a course of study.

(v) Failing to comply with state or local regulations or reporting requirements relating to public health and the control of contagious and infectious diseases.

(w) Failing to comply with any rule of the board relating to health and safety, including, but not limited to, the sterilization of needles and equipment and the disposal of potentially infectious materials.

(2) When the board finds any person guilty of any of the acts set forth in subsection of this section, it may enter an order imposing one or more of the following penalties:

(a) Refusal to accept an application for licensure.

(b) Revocation or suspension of a license.

(c) Restriction of practice.

(d) Imposition of an administrative fine not to exceed One Thousand Dollars ($1,000.00) for each count or separate offense.

(e) Issuance of a reprimand.

(f) Placement of the acupuncturist on probation for a period of time and subject to such conditions as the board may specify.

(3) The board shall not reinstate the license of an acupuncturist, or cause a license to be issued to a person it has deemed to be unqualified, until such time as the board is satisfied that he or she has complied with all the terms and conditions set forth in the final order and is capable of safely engaging in the practice of acupuncture.

SECTION 9. (1) It is unlawful for any person to:

(a) Hold himself or herself out as a licensed acupuncturist unless licensed under this act.

(b) Practice or attempt to practice acupuncture without an active license or as otherwise provided by this act.

(c) Obtain or attempt to obtain a license to practice acupuncture by fraudulent misrepresentation.

(d) Permit an employed person to engage in the practice of acupuncture unless that person holds an active license as an acupuncturist, except as otherwise provided by this act.

(2) Any person who violates any provision of this section is guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than Five Hundred Dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or both.

SECTION 10. This act does not apply to any health care professional licensed under another statute of this state and acting within the scope of the license. Nothing in this act shall be construed to limit, restrict, enlarge or alter the scope of practice authorized for any health care professional licensed under another statute of this state.

SECTION 11. (1) No appropriations from the State General Fund shall be used to operate the board. The board shall be supported by fees collected for license applications and renewals and other monies received by the board.

(2) All fees and any other monies received by the board, except for administrative fines imposed under Section 8 of this act, shall be deposited in a special fund that is created in the State Treasury and shall be used for the implementation and administration of this act, when appropriated by the Legislature for such purpose. The monies in the special fund shall be subject to all provisions of the state budget laws that are applicable to special fund agencies, and shall be disbursed by the State Treasurer only upon warrants issued by the State Fiscal Officer upon requisitions signed by the chairman of the board or another board member designated by the chairman, and countersigned by the secretary of the board. Any interest earned on this special fund shall be credited by the State Treasurer to the fund and shall not be paid into the State General Fund. Any unexpended monies remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund. Administrative fines imposed by the board under Section 8 of this act shall be deposited in State General Fund.

SECTION 12. This act shall take effect and be in force from and after July 1, 1999.