Acupuncture Practice Act.

WORKING DRAFT
2013
STATE OF
WYOMING
13LSO-0398

HOUSE BILL
NO.

HB0222

Acupuncture
P
ractice
A
ct.

Sponsored by:
Representative(s) Krone

A BILL

for

AN ACT relating to
professions and occupations; providing for the licensure and regulation of acupuncture and Oriental medicine as specified; establishing the board of acupuncture and Oriental medicine as specified; providing regulatory authority;
and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.

W.S. 33
‑
49
‑
101 through 33
‑
49
‑
118

are
created to read:

CHAPTER 49
ACUPUNCTURE AND ORIENTAL MEDICINE PRACTICE ACT

33
‑
49
‑
101.

Short title
; applicability
.

(a)

This chapter shall be known and may be cited as the "Wyoming Acupuncture and Oriental Medicine Practice Act
"
.

(b)

This chapter shall apply to the practice of acupuncture
and Oriental medicine
in Wyoming on and after July 1, 2013.

33
‑
49
‑
102.

Definitions.

(a)

As used in this chapter:

(i)

"ABMA" means the American board of medical acupuncture;

(i
i
)

"ACAOM"
means the
accreditation
commission for acupuncture and Oriental medicine
;

(i
ii
)

"Acupuncture
and Oriental medicine
" means a
form
of
primary
heal
th care based upon traditional O
riental
medical concepts that employs O
riental
methods of diagnosis, treatment
and adjunctive therapies
for the promotion, maintenance
and restoration of health
and the
prevention of disease
or the treatment of any ailment, disease, pain, injury, deformity or physical condition
;

(iv
)

"Acupuncturist" means any person who provides for compensation, or holds himself out to the public as p
roviding, acupuncture
and Oriental medicine
services;

(
v
)

"
Board
" means the
state board of acupuncture and Oriental medicine
created under this chapter;

(v
i
)

"Licensee" means an acupuncturist licensed
under
W.S. 33
‑
49
‑
108
;

(vii
i
)

"NCCAOM" means the national certification commission for acupuncture and Oriental medicine;

(
ix
)

"Practice of acupuncture
and Oriental medicine
"
includes
:

(A)

Stimulation of points on the body through the use of needles, lancets, moxibustion, Qigong, thermal methods, herbal preparations, light
,
sound,
vibration, pressure, magnetism, electricity, suction, water or other means;

(B)

Manual therapy
including massage, acupressure, acupuncture, trigger point dry needling, reflexology, shiatsu, mobilization, manipulation, cupping, tuina and acutotement;

(C)

Auricular, hand, nose, face, foot and scalp microsystem therapy;

(D)

Adjunctive therapies including dietary and nutritional counseling, recommendation of breathing techniques and
therapeutic
exercises and lifestyle, behavioral and stress counseling;

(E)

Diagnostic techniques including observation, listening, smelling, inquiring,
palpitation
, electrodermal screenings, thermography and the routine use of functional testing through physical or laboratory tests;

(F)

The practice of Chinese herbal medicine if the
acupuncturist
has passed a nationally recognized ex
amination approved by the board.

(
x
)

"Practice of acupuncture" does not
include:

(A)

Osteopathic medicine;

(B)

"Chiropractic" as defined in
W.S. 33
‑
10
‑
101
;

(C)

"
Physical therapy
"
as defined in
W.S
.
33
‑
25
‑
101(
a)(i)
; or

(D)

Surgery, prescribing, dispensing or administering any prescription drug or u
tilization of western medical diagnostic tests and procedures including
magnetic resonance imaging, radiographs, computerized tomography scans and ultrasound
.

(xi)

"Practice of Chinese herbal medicine" means the sale, recommendation, prescription, administration, preparation or compounding of herbs, vitamins, minerals, animals,
homeopathic
preparations, enzymes, glandular products, natural substances, dietary supplements or nutritional
supplements
in the form of raw herbs,
decoctions, teas, tinctures, infusions, granules, pills or powders according to Oriental medicine concepts;

(xii)

"School of acupuncture" means a school in which acupuncture is taught and which is accredited by ACAOM or its equivalent as determined by the board;

(x
ii
i
)

"This chapter" means W.S. 33
‑
4
9
‑
101 through 33
‑
4
9
‑
115.

33
‑
49
‑
103.

Board created; members; appointment; terms; qualification; removal; vacancies.

(a)

The state board of
acupuncture and Oriental medicine
is created to implement and administer this chapter. The board shall consist of
five
(
5
) members. The initial board shall c
onsist of
one (1) member of the public and four
(
4
) members who shall have been engaged in the practice of
acupuncture

and Oriental medicine
for a period of not less than five (5) years immediately preceding appointment to the board. Thereafter,
the
four (4
)
members
engaged in the practice of acupuncture
and Oriental medicine
shall be licensed under this
chapter
prior to appointment to the board.

(b)

The governor shall appoint the members of the board. Of the initial members appointed to the board, one (1)
member
shall be appointed for a term of three (3
) years, two (2
)
member
s
shall be appointed for
a term of two (2) years and two (2
)
member
s
shall be appointed for a term of one (1) year. Thereafter, the terms of office of the members appointed shall be for three (3) years.

(c)

Vacancies in the board shall be filled by appointment by the governor as provided in subsection (b) of this section for the balance of an unexpired term and each member shall serve until his successor is appointed and qualified.

(d)

The governor may remove any member from the board as provided in W.S.
9
‑
1
‑
202.

33
‑
49
‑
104.

Board meetings; elections; quorum.

(a)

The board shall meet at least
once
each year and shall elect a chairman at the first meeting each year. The board may convene at the request of the chairman or as the
board may determine for any other meeting as may be deemed necessary to transact its business.

(
b
)

T
hree (3
) board members
shall
constitute a quorum.

33
‑
49
‑
105.

Board; reimbursement of expenses.

Each member of the board shall receive the same per diem and travel expenses provided by law for state employees while engaged in official business or actual duties of the board. The fees and expenses shall be paid from the funds of the board.

33
‑
4
9
‑
10
6
.

Board responsibilities; duties.

(a)

The board shall:

(
i
)

Examine, license and renew the licenses of duly qualified applicants;

(ii)

Maintain an up-to-date list of every person licensed to practice
acupuncture

and Oriental medicine
under this
chapter
. The list shall show the licensee's last
known place of employment, last known place of residence and the date and number of his license;

(iii)

Keep a record of all proceedings of the board and make the record available to the public for inspection during reasonable business hours;

(iv)

Maintain
an up-to-date list of persons whose licenses have been suspended, revoked or denied. This list shall include the names, type and cause of ac
tion, date and penalty incurred
and the length of penalty. This list shall be available for public inspection during reasonable business hours. This list shall be supplied to similar boards in other states upon request;

(v)

E
stablish fees for licenses
, renewals and reinstatem
ents in accordance with W.S. 33
‑
1
‑
201;

(vi)

P
romulgate
rules and regulations relating to the proper cleaning and sterilization of needles to be used in the practice of acupuncture and the sanitation of acupuncture offices.

33
‑
4
9
‑
10
7
.

Board; general powers.

(a)

The board may:

(i)

In accordance with the Wyoming Administrative Procedure Act, adopt rules and regulations not inconsistent with the law as may be necessary to enable it to carry into effect the provisions of this
chapter
;

(ii)

Employ personnel as necessary to perform the functions of the board;

(iii)

Establish
licensure and
relicensure requirements and procedures as are appropriate
and consistent with this chapter
, including adopting and publishing a code of ethics
and prescribing acupunctur
ist education program standards;

(iv)

Initiate
hearings related to the denial, suspension or revocation of a license
or as provided in W.S. 33
‑
49
‑
116
. All hearings of the board shall be consistent with the procedures specified by the
Wyoming Administrative Procedure Act.

33
‑
49
‑
108.

Application for license; qualifications; fees.

(
a)

Each applicant for licensure under this chapter
shall apply for licensure with the
board
by providing an application to the
board
in the form
and manner in which
the
board
shall require.
The application shall include the name and address of the applicant, show that the applicant has completed an educational program approved by the board, include the disclosure of any act that would be grounds for disciplinary action against a licensed acupuncturist under this
chapter and include any additional information the board may require.

(b)

Any change
in the infor
mation required by subsection (a
) of this section shall be reported
to the board
within thirty
(30) days of the
change
.

(c)

In order to qualify for licensure

under this chapter
, an acupuncturist shall have:

(i)

Successfully completed a graduate level
educa
tion program which is accredited by
ACAOM,
is in ACAOM
candidacy
status or is accredited by another accrediting
institution that
conforms to standards approved by the
board;

(ii)

Qualifications
based on education, experience
or training
whether inside or outside of the United States
which are substantially similar to those provided by
paragraph (i
)
of this subsection
which are documented in the form required by the
board and accepted by the board i
n lieu of the education program;

(iii)

Current active status as a diplomate of acupuncture or diplomate of Oriental medicine of the NCCAOM; or

(iv)

If
the applicant is a physician or osteopath, the applicant shall have:

(A)

Successfully
completed an education program of not less than three hundred (300) hours that is approved by the ABMA or equivalent or have a certification from the ABMA; or

(B)

Qualifications
based on education, experience
or training
whether inside or outside of the
United States
which are substantially similar to those provided by
subparagraph (A
)
of this paragraph
which are documented in the form required by the
board and accepted by the board i
n lieu of the education program.

(d)

An acupuncturist may also apply to the board for certification to practice Chinese herbal medicine. In order to qualify for certification under this subsection, the
acupuncturist
shall have:

(i)

Passed a nationally recognized examination approved by the board or have current active status as a diplomate of Chinese
herbology
or diplomate of Oriental medicine of the NCCAOM; or

(ii)

If the applicant is a physician or osteopath and the scope of practice
of the physician or osteopath
does not permit the practice of herbal medicine,
the applicant shall be subject to the requirements of paragraph (i) of this subsection.

(e
)

Each
applicant for licensure
or certification
shall pay
any required
license,
certification,
renewal
or
reinstatement fees established by the
board under this
chapter. L
icenses
and certifications
shall be renewed
every two (2) years
or reinstated pursuant to a schedule established by the
board
pursuant to this chapter
. The board
may establish renewal fees and delinquency fees for reinstatement. If a p
erson fails to renew his
license
or certification
pursuant to the schedule established by the
board, the
license
or certification
shall expire
as provided in W.S. 33
‑
49
‑
113
. Any person whose license
or certification
has expired shall be subject to the penalties provided in this
chapter.

(
f
)

Each
acupuncturist shall report to the
board

any
judgment or administrative action, as well as the terms of any settlement or other disposition of any such judgment or action, against the acupuncturist involving malpractice or improper practice of acupuncture, whether occurring in
Wyoming
or in any other jurisdiction. The acupuncturist shall make such report either within thirty
(30)
days after the judgment or action or upon application for licensure or reinstate
ment, whichever occurs earlier.

(
g
)

As a condition of licensure, every acupuncturist shall purchase and maintain commercial professional
liability insurance with an insurance company authorized to do business in this state in a minimum indemnity amount of:

(
i
)

Fifty thousand dollars
($50,000.00)
per incident and fifty thousand dollars
($50,000.00)
per year, if practicing as a sole proprietor or general partnership;

(
ii
)

Three hundred thousand dollars
($300,000.00)
per incident and three hundred thousand dollars
($300,000.00)
per year, if practicing as a limited liab
ility company or a corporation.

33
‑
49
‑
109
.

Licensure by endorsement.

(a)

The board
shall issue a license by endorsement to engage in the practice of acupuncture
and Oriental medicine
in this state to any applicant who has a license in good standing as an acupuncturist under the laws of another jurisdiction if the applicant presents satisfactory proof to the
board
that, at the time of application for a license by endorsement, the applicant possesses substantially equivalent credentials and qualifications to those required for licensure pursuant to this
chapter
.

(b)

The board
shall specify by rule what shall constitute "substantially equivalent credentials and qualifications" fo
r the purposes of this section.

(c)

The board
shall establish a fee to be paid by any applican
t for licensure by endorsement.

(d)

For the purposes of this section, "in good standing" means a license that ha
s not been revoked or suspended
or against which there are no disciplinary or adverse actions.

33
‑
49
‑
110
.

Licensure required; exceptions.

(a)

Nothing in th
is chapter shall interfere with,
or be interpreted to interfere with or prevent, any other licensed health care professional from practicing
within the scope of his
prac
tice as specified in this title
, provided that no licensed health care professional shall hold themselves out as an
acupuncturist
or use any title under subsection (c) of this section unless the person is licensed under this chapter
.

(b)

No person shall
practice acupuncture
and Oriental medicine
without a valid and current license on file with the
board
, unless the acupuncturist has met the requirements of subsection (
d
) of this section.
No person shall practice Chinese herbal medicine in this state unless the person has obtained a certification
from the board
under this chapter.

(c)

It
is unlawful for any person to
hold himself out in any manner as being aut
horized to practice acupuncture, Oriental medicine or Chinese
herbology
or
u
se the title "licensed acupuncturi
st," "registered acupuncturist
,
"
"doctor of Oriental medicine," or "doctor of
acupuncture
and Oriental medicine"
or use the
designation "L.Ac.," "R.Ac.," "D.O.M." or "O.M.D." or any variant thereof
, unless
the
person is
licensed under this chapter.
It is unlawful for any person to use the title of
"diplomate of acupuncture,"

"diplomate of Chinese herbology," or "diplomate of Oriental medicine" or the designation of
"Dipl
. Ac.,
"
"Dipl. C.H.," or "Dipl. O.M." unless
the
person is nationally certified with NCCAOM
and licensed under this chapter
.

(d)

Notwithstanding the provisions of this section to the contrary, a person in training may practice acupuncture
and Oriental medicine
without a valid and current license on file with the division if such practice takes place in the course of a bona fide training program and:

(i)

All acupuncture acts and services performed by
the person
are performed under the direct, on-site supervision of a licensed acupuncturist, who shall be responsible for all such acts and services as though the licensed acupuncturist had personally performed them; and

(ii)

The name and current residence address of the person has been reported to the board by
the licensed acupun
cturist supervising the person
.

33
‑
49
‑
111.

Temporary licensure.

(a)

Notwithstanding the provisions of this chapter to the contrary, a person may practice
acupuncture

and Oriental medicine
without a valid and current license if the person has been issued a temporary license by the board under this section.

(b)

The board may issue a temporary license to a person who
has a license in good standing as an acupuncturist under the laws of another jurisdiction
or
who has
a license in another
health
care profession if the person
possesses
the knowledge and skills that are included in the scope of the pra
ctice of
acupuncture

and Oriental medicine
in Wyoming.

(c)

The board shall only issue a temporary license to a person who is under the sponsorship of an
acupuncturist
licensed in this state
and who submits an application and fee as provided by rule and regulation of the board, provided that no fee shall be charged if the license is for not more than seven (7) days in any three (3) month period. A
temporary
license shall only be valid for the limited purpose specified in the license and shall not exceed one (1) year. The board shall only issue a temporary license for one (1) of the following purposes
:

(i)

Teaching acupuncture and Oriental medicine;

(ii)

Consulting, in association with the sponsoring
acupuncturist
, regarding any patient of the sponsoring acupuncturist;

(iii)

Performing specialized diagnostic or treatment techniques in association with the sponsoring
acupuncturist
for any patient of the sponsoring acupuncturist;

(iv)

Assisting
in the conducting of research in
acupuncture and Oriental medicine;

(v)

Assisting in the implementation of new techniques and technology related to acupuncture and Oriental medicine;

(vi)

In
an emergency situation or for disaster relief as determined by the board.

(d)

A temporary license may be renewed upon submission of an application and fee as provided by rule and regulation of the board.

(e)

The chairman of the boa
rd or his designee may issue an
interim temporary license to a person who meets the requirements of this section. An interim temporary
license under this subsection shall be valid as a temporary license until the next meeting of the board.

33
‑
49
‑
112.

Continuing education.

(a)

Each licensed acupuncturist shall complete thirty (30) hours of continuing education every two (2) years. Each continuing education course shall be sponsored by NCCAOM or another
accrediting
institution upon approval from the board.

(b)

An instructor in a course of continuing education which is approved by the board may receiv
e
continuing education credit as approved by the board at the rate of one (1) hour of credit for every
twelve
(12) hours of instruction. No person shall receive more than eighteen (18) hours of instruction credit in any two (2) year period.

33
‑
49
‑
113.

License renewal.

(a)

Each licensee shall renew his license every two (2) years by submitting prior to the date established by the board the fee and application required by rule and
regulation of the board.
The application shall include proof of continuing education as required under W.S. 33
‑
49
‑
112 and other information as the board may require.

(b)

The board shall allow a sixty (60) day grace period following the expiration of a license. A person may renew a license during the grace period under this subsection if
the
person complies with the requirements of subsection (a) of this section and pays a late fee as determined by the board.

(c)

A license which is not renewed following the expiration of the sixty (60) day grace period under subsection (b) of this section is expired and the licensee shall not practice acupuncture in this state. The board may through rule and regulation allow for reinstatement of an expired license within one (1) year of expiration. If a license has been expired for more than one (1) year, the board shall require the person to apply as a new applicant.

33
‑
49
‑
114
.

Mandatory disclosure to patients; record retention.

(a)

Each
acupuncturist shall provide the following information in writing to each patient during the initial patient contact:

(i)

The name, business address and business phone number of the acupuncturist;

(ii)

A fee schedule;

(iii)

A statement indicating that:

(A)

The patient is entitled to receive information about the methods of therapy, the techniques used and the duration of therapy, if known;

(B)

The patient may seek a second opinion from another health care professional or may terminate therapy at a
ny time;

(
C)

In a professional relationship, sexual intimacy is never appropriate and should be reported to the
board.

(iv)

A listing of the acupuncturist's education, experience, degrees, membership in a professional organization whose membership includes not less than one-third
(1/3)
of the persons licensed pursuant to this
chapter
, certificates or credentials related to acupuncture awarded by such organizations, the length of time required to obt
ain said degrees or credentials
and experience;

(v)

A statement indi
cating any license, certificate
or registration in acupuncture or any other health care profession which was issued to the ac
upuncturist by any local, state
or national health care agency, and indicating whether any such license, certificate or registr
ation was suspended or revoked.

(b)

Any changes in the information required by
subsection (a
) of this section shall be made in the mandatory disclosure within five
(5)
days of the
change.

(c)

The acupuncturist shall retain a copy of the written inform
ation specified in subsection (a
) of this section, dated and signed by the patient, from the time of the ini
tial evaluation until at least five

(
5
)
years after the termination of treatment.

33
‑
49
‑
115
.

License revocation; discipline.

(a)

The board may revoke, suspend or refuse to renew any license or permit or place on probation, or otherwise reprimand a licensee or permit holder or deny a license to an applicant if, after hearing, it finds that the person
:

(
i
)

Violated the provisions of
W.S. 33
‑
49
‑
110
;

(ii)

Failed to provide the mandatory disclosure required by
W.S. 33
‑
49
‑
114
or provided false, deceptive
or misleading information to patients in the disclosure;

(iii)

Failed to provide the
in
formation required by W.S. 33
‑
49
‑
108(a) or provided false, deceptive
or misleading information to the
board
during application for initial licensure
or certification
, temporary licensure or renewal of a license under this chapter
;

(
iv)

Committed
, or advertised in any manner that he will commit, any act constituting a fraudulent insurance act as de
termined by the board;

(v)

Failed to refer a patient to an appropriate practitioner when the problem of the patient is beyond the training, ex
perience
or c
ompetence of the acupuncturist;

(vi)

Accepted
commissions or rebates or other forms of remuneration for referring clients
to other professionals;

(vii)

Offered or gave commissions, rebates or other forms of remuneration for the referral of clients; except that, notwithstanding the provisions of this paragraph, an acupuncturist may pay an independent advertising or marketing agent compensation for advertising or marketing services rendered on his behalf by such agent, including compensation which is paid for the results of performance of such se
rvices, on a per patient basis;

(viii)

Failed to comply with, or aided or abetted a failure to comply with, the requirements of this
chapter
or any lawful rules or regulations adopted by the
board
, including those regulations governing the proper cleaning and sterilization of acupuncture needles or the sanitary conditions of acupuncture offices;

(ix)

Engaged in sexual contact as defined in W.S. 6
‑
2
‑
301(a)(vi) or
sexual intrusion
as defined in W.S. 6
‑
2
‑
301(a)(vii)
with a patient during the period of time beginning with the initial patient evaluation and ending wit
h the termination of treatment;

(x)

Departed from, or failed to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established;

(
xi)

Continued in the practice of acupuncture
and Oriental medicine
while subject to any physical or mental disability which renders the acupuncturist unable to treat patients with reasonable skill and safety or which may endanger a patient's health or safety, or continued in the practice of acupuncture
and Oriental medicine
while afflicted
with a communicable, infectious
or contagious disease of such a serious nature as to render the acupuncturist unable to treat patients with reasonable skill and safety or which may endanger a patient's health or safety;

(xii)

Continued in the practice of acupuncture
and Oriental medicine
while addicted to or dependent upon alcohol or upon any habit-forming drug or while abusing or habitually or excessively using any such habit-forming drug or any controlled
substance as defined in W.S. 35
‑
7
‑
102(a)(iv);

(xiii)

Committed and been convicted of a felony or entered a plea of guilty or n
olo contendere to a felony;

(
xiv)

Published or circulated, directly or indirectly, a
ny fraudulent, false, deceitful
or misleading claims or statements relating to acupuncture
and Oriental medicine
or to the acupuncturist's practice, capabilities, servic
es, methods or qualifications.

(b)

The board
may accept, as prima facie evidence of the commission of any act enumerated in subsection (
a
) of this section, evidence of disciplinary action taken by another jurisdiction against an acupuncturist's license or other authorization to practice if such disciplinary action was based upon acts or practices substantially similar to those enumerated in subsection (
a) of this section.

33
‑
49
‑
11
6
.

Board hearings; investigations.

(a)

Upon
receipt of
written complaint
by the board
charging a person with having been guilty of any of the acts described in W.S.
33
‑
49
‑
115
, the board shall make an investigation. If the board finds reasonable grounds for the complaint, a time and place for a hearing shall be set, notice of which shall be served on the licensee or applicant at least fifteen (15) calendar days prior thereto. The notice shall be by personal service or by certified or registered mail sent to the last known address of the person.

(b)

The board may issue subpoenas for the attendance of witnesses and the production of necessary evidence in any hearing before it. Upon request of the respondent or his counsel, the board shall issue subpoenas on behalf of the respondent.

(c)

H
earing procedures shall be promulgated in accordance with, and a person aggrieved by a decision of the board may take an appeal pursuant to, the Wyoming Administrative Procedure Act.

33
‑
49
‑
117
.

Disposition of fees.

Fees received by the board and any monies collected under this
chapter
shall be deposited with the state treasurer, who shall credit the money to a separate account which shall only be used by the board to defray costs incurred in the administration of this
chapter
.

33
‑
49
‑
11
8
.

Violations; penalties; proceedings.

(a)

Any person who violates any of the provisions of
this chapter
is guilty of a misdemeanor and upon conviction shall be fined not more than
seven
hundred
fifty
dollars ($
750
.00) or imprisoned in the county jail not more than six (6) months, or both. If the
board
has reason to believe that any individual is liable under this section, it may certify the facts to the attorney general of
Wyoming
who may take appropriate action
.

(b)

Nothing in this section shall limit any additional civil or criminal liability under the laws of this state.

Section 2.

This act is effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution.

(END)

1
HB0222