Acupuncture practice act.

2015
STATE OF WYOMING
15LSO-0422
Numbered
2.1

HOUSE BILL

NO.
HB0246

Acupuncture practice act.

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 is 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, 201
5
.

33
‑
49
‑
102
.

Definitions.

(a)

As used in this chapter:

(
i
)

"ABMA" means the American board of medical acupuncture;

(ii)

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

(iii)

"Acupuncture and
oriental
medicine" means a form of primary health care based upon traditional
oriental
medical concepts that employs
oriental
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 providing, acupuncture and
oriental
medicine services;

(v)

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

(vi)

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

(viii)

"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 examination 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 utilization 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;

(xiii)

"This chapter" means W.S. 33
‑
49
‑
101 through 33
‑
49
‑
11
8
.

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 consist 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) members shall be appointed for a term of two (2) years and two (2) members 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)

Three (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
under W.S. 9
‑
3
‑
102 and 9
‑
3
‑
103

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
‑
49
‑
106
.

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 action, 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)

Establish fees for licenses, renewals and reinstatements in accordance with W.S. 33
‑
1
‑
201;

(vi)

Promulgate 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
‑
49
‑
107
.

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 acupuncturist 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 information 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 education 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 in 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 in 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. Licenses 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 person 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 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
the
report either within thirty (30) days after the judgment or action or upon application for licensure or reinstatement, 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 liability 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" for the purposes of this section.

(c)

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

(d)

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

33
‑
49
‑
110
.

Licensure required; exceptions.

(a)

Nothing in this 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 practice as specified in this title, provided that no licensed health care professional shall hold
himself
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 authorized to practice acupuncture,
oriental
medicine or Chinese
herbology
or use the title "licensed acupuncturist," "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 acupuncturist 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 practice 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 board 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 receive 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
under this subsection
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 any 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 obtain said degrees or credentials and experience;

(v)

A statement indicating any license, certificate or registration in acupuncture or any other health care profession which was issued to the acupuncturist by any local, state or national health care agency, and indicating whether any such license, certificate or registration 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 information specified in subsection (a) of this section, dated and signed by the patient, from the time of the initial 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 information 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 determined by the board;

(v)

Failed to refer a patient to an appropriate practitioner when the problem of the patient is beyond the training, experience or competence 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 services, 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 with 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 a serious nature
which
render
s
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 habit

forming drug or any controlled substance as defined in W.S. 35
‑
7
‑
1
0
02(a)(iv);

(xiii)

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

(xiv)

Published or circulated, directly or indirectly, any fraudulent, false, deceitful or misleading claims or statements relating to acupuncture and
oriental
medicine or to the acupuncturist's practice, capabilities, services, 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 disciplinary action was based upon acts or practices substantially similar to those enumerated in subsection (a) of this section.

33
‑
49
‑
116
.

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)

Hearing 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
‑
118
.

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
HB0246