H-413                _______________________________________________

 

                                                    HOUSE BILL NO. 270

                        _______________________________________________

 

State of Washington                              49th Legislature                              1985 Regular Session

 

By Representatives Locke, Brooks, Lux, Allen, Fisch, Niemi, Wang, Appelwick, Brough, Belcher and D. Nelson

 

 

Read first time 1/28/85 and referred to Committee on Social & Health Services. Referred to Committee on Ways & Means 3/4/85.

 

 


AN ACT Relating to acupuncture; amending RCW 4.24.240, 4.24.290, 7.70.020, and 18.130.040; reenacting and amending RCW 18.120.020; adding a new chapter to Title 18 RCW; and prescribing penalties.

 

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

 

          NEW SECTION.  Sec. 1.     The following terms in this chapter shall have the meanings set forth in this section unless the context clearly indicates otherwise:

          (1) "Acupuncture" means a health care service based on a traditional Oriental system of medical theory, diagnosis in treatment used to promote health and treat organic or functional disorders by treating specific acupuncture points or meridians.  By way of illustration and not limitation, acupuncture includes the following techniques:

          (a) Use of acupuncture needles to stimulate acupuncture points and meridians;

          (b) Use of electrical, mechanical, or magnetic devices to stimulate acupuncture points and meridians;

          (c) Moxibustion;

          (d) Acupressure;

          (e) Cupping;

          (f) Dermal friction technique (gwa hsa);

          (g) Infra-red;

          (h) Sonopuncture;

          (i) Laserpuncture;

          (j) Dietary advice based on traditional Chinese medical theory; and

          (k) Point injection therapy (aquapuncture).

          (2) "Acupuncturist" means an acupuncturist certified under this chapter.

          (3) "Department" means the department of licensing.

          (4) "Director" means the director of licensing.

 

          NEW SECTION.  Sec. 2.     (1) No one shall hold themselves out to the public as an acupuncturist or certified acupuncturist or any derivative thereof which is intended to or is likely to lead the public to believe such a person is an acupuncturist or certified acupuncturist unless certified as provided for in this chapter.

          (2) No one shall use any configuration of letters after their name (including Ac.) which indicates a degree or formal training in acupuncture unless certified as provided for in this chapter.

          (3) The director may by rule proscribe or regulate advertising and other forms of patient  solicitation which are likely to mislead or deceive the public as to whether someone is certified under this chapter.

 

          NEW SECTION.  Sec. 3.     Any person certified as provided for in this chapter may practice acupuncture irrespective of any other occupational licensing law.  This authorization also extends to:

          (1) The practice of acupuncture by a person who is a regular student in a school of acupuncture approved by the director:  PROVIDED, HOWEVER, That the performance of such services be pursuant only to a regular course of instruction or assignments from his instructor and that such services are performed only under the direct supervision and control of a person certified pursuant to this chapter or licensed under any other healing art whose scope of practice includes acupuncture; and

          (2) The practice of acupuncture by any person licensed or certified to perform acupuncture in any other jurisdiction where such person is doing so in the course of regular instruction of a school of acupuncture approved by the director or in an educational seminar sponsored by a professional organization of acupuncture:  PROVIDED, That in the latter case, the practice is supervised directly by a person certified pursuant to this chapter or licensed under any other healing art whose scope of practice includes acupuncture.

 

          NEW SECTION.  Sec. 4.     The proscriptions contained in section 2 (1) and (2) of this act shall not extend to:

          (1) Those holding valid licenses under chapter 18.71, 18.57, 18.22, or 18.32 RCW operating within their lawful scopes of practice or valid registration authorizing the performance of acupuncture procedures pursuant to chapter 18.71A or 18.57A RCW;

          (2) Those practicing acupuncture in the state under the authority of any instrumentality of the United States; and

          (3) Those performing acupuncture procedures under section 3 (1) and (2) of this act.

!ixPROVIDED, That such persons shall not hold themselves out as being certified in acupuncture under this chapter.

 

          NEW SECTION.  Sec. 5.     Any person seeking to be examined shall present to the director, at least forty-five days before the commencement of the examination, a written application on a form or forms provided by the director setting forth under affidavit such information as the director may require and proof the candidate has:

          (1) Completed a minimum of two academic years or seventy-two quarter credits of undergraduate college education in the general sciences and humanities prior to entering an acupuncture training program.  The obtaining of a degree is not required for the educational credits to qualify;

          (2) Completed a course of didactic training in basic sciences and acupuncture over a period of two academic years and shall include such subjects as anatomy, physiology, bacteriology, biochemistry, pathology, Chinese herbalogy, hygiene, and a survey of western clinical sciences.  The basic science classes must be equivalent to those offered at the collegiate level.  However, if the applicant is a licensed chiropractor under chapter 18.25 RCW or a drugless healer under chapter 18.36 RCW, the requirements of this subsection relating to basic sciences may be reduced by up to one year depending upon the extent of the candidate's qualifications as determined under rules adopted by the director; and

          (3) Successfully completed a course of clinical training in acupuncture over a period of one academic year.  Included therein must be a minimum of twenty-five quarter credits of supervised practice, consisting of at least two hundred fifty separate patient treatments involving a minimum of fifty different patients.  The training also must include a minimum of one hundred hours or nine quarter credits of observation which shall include case presentation and discussion.

 

          NEW SECTION.  Sec. 6.     The department will consider for approval any school, program, apprenticeship, or tutorial which meets the requirements outlined in this chapter and provides the training required under section 5 of this act.  Clinical and didactic training may be approved as separate programs or as a joint program.  The process for approval shall be established by the director by rule.

 

          NEW SECTION.  Sec. 7.     If the application is approved and the candidate shall have deposited an examination fee determined by the director as provided in RCW 43.24.086, the candidate shall be admitted to the examination.

 

          NEW SECTION.  Sec. 8.     (1) The director of licensing is hereby authorized and empowered to execute the provisions of this chapter and shall offer examinations in acupuncture at least twice a year at such times and places as the director may select.  The examination shall be written and may include a practical examination and shall be written in the English language.

          (2) The director shall develop or approve  a licensure examination in the subjects that the director determines are within the scope of and commensurate with the work performed by licensed acupuncturists and shall include anatomy, physiology, bacteriology, biochemistry, pathology, Chinese herbalogy, hygiene, and acupuncture.  All application papers shall be deposited with the director and there retained for a least one year, when they may be destroyed.

          (3) If the examination is successfully passed the director shall confer on such candidate the title of Certified Acupuncturist and Acupuncturist.

 

          NEW SECTION.  Sec. 9.     Before certification, each applicant must demonstrate sufficient fluency in reading, speaking, and understanding the English language to enable the applicant to communicate with other health care providers and patients concerning health care problems and treatment.

 

          NEW SECTION.  Sec. 10.    Each applicant shall, as part of his application, furnish written consent to an investigation of his personal background, professional training, and experience by the department or any person acting on its behalf.

 

          NEW SECTION.  Sec. 11.    (1) The director may refuse to grant or may suspend or revoke any certification, may reprimand or censure a certificate holder, or may place on probation subject to reasonable remedial conditions a certificate holder in conformance with chapter 18.130 RCW.

          (2) Anyone refused admittance to the examination or whose certificate has been revoked who shall attempt or continue to violate this chapter shall be guilty of a misdemeanor and shall be punished as provided in RCW 9.92.030.

 

          NEW SECTION.  Sec. 12.    (1) Every person certified in acupuncture shall register with the director annually and pay an annual renewal registration fee determined by the director as provided in RCW 43.24.086 as now or hereafter amended on or before the certificate holder's birth anniversary date.  The certificate of the person shall be renewed for a period of one year or longer in the discretion of the director.

          (2) Any failure to register and pay the annual renewal registration fee shall render the certificate invalid.  The certificate shall be reinstated upon written application to the director, payment to the state of a penalty fee determined by the director as provided in RCW 43.24.086 as now or hereafter amended, and payment to the state of all delinquent annual certificate renewal fees.

          (3) Any person who fails to renew his or her certification for a period of three years shall not be entitled to renew such certification under this section.   Such person, in order to obtain a certification in acupuncture in this state, shall file a new application under this chapter, along with the required fee, and shall meet such of the normal requirements as the director, by rule, provides.

          (4) All fees collected under this section and section 6 of this act shall be credited to the health professions account as required under RCW 43.24.072.

 

          NEW SECTION.  Sec. 13.    The director shall develop a form to be used by an acupuncturist to inform the patient of the acupuncturist's qualifications.  All certificate holders shall bring the form to the attention of the patients in whatever manner the director, by rule, provides.

 

          NEW SECTION.  Sec. 14.    Every certified acupuncturist shall develop a written plan for consultation, emergency transfer, and referral to other practitioners.  The written plan shall be submitted with the initial application for certification as well as annually thereafter with the certificate renewal fee to the department.  The department may withhold certification or renewal of certification if the plan fails to meet the standards contained in rules promulgated by the director.

 

          NEW SECTION.  Sec. 15.    Any person hereafter violating the provisions of this chapter, shall be guilty of a misdemeanor and shall be punished as provided in RCW 9.92.030.

 

          NEW SECTION.  Sec. 16.    The director shall promulgate rules in the manner provided by chapter 34.04 RCW as are necessary to carry out the purposes of this chapter.

 

          NEW SECTION.  Sec. 17.    (1) The acupuncture advisory committee is created.  The committee shall be composed of one physician licensed under chapter 18.71 or 18.57 RCW, three acupuncturists certified under this chapter, and one public member, who shall have no financial interest in the rendering of health services.

          (2) The director shall appoint members to staggered terms so as to provide continuity in membership.  They shall serve at the pleasure of the director but may not serve more than five years total.  Members of the committee shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060 as now or hereafter amended.  Members of the committee shall be paid fifty dollars per day for time spent in performing their duties as members of the committee.

          (3) The committee shall meet only on the request of the director and consider only those matters referred to it by the director.

 

          NEW SECTION.  Sec. 18.    All persons registered as acupuncture assistants pursuant to chapter 18.71A or 18.57A RCW on the effective date of this act shall be certified under this chapter by the director without examination if they otherwise would qualify for certification under this chapter and apply for such within one hundred twenty days of the effective date of this act.

 

          NEW SECTION.  Sec. 19.    The director may certify a person without examination if such person is licensed or certified as an acupuncturist in another jurisdiction, if in the director's judgment the requirements of that jurisdiction are equivalent to or greater than those of Washington state.

 

          NEW SECTION.  Sec. 20.    Sections 1 through 19 of this act shall constitute a new chapter in Title 18 RCW.

 

        Sec. 21.  Section 1, chapter 157, Laws of 1969 ex. sess. as last amended by section 4, chapter 56, Laws of 1975-'76 2nd ex. sess. and RCW 4.24.240 are each amended to read as follows:

          (1) (a) A person licensed by this state to provide health care or related services, including, but not limited to, a certified acupuncturist, a physician, osteopathic physician, dentist, nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, pharmacist, optician, physician's assistant, osteopathic physician's assistant, nurse practitioner, including, in the event such person is deceased, his estate or personal representative;

          (b) An employee or agent of a person described in subparagraph (a) of this subsection, acting in the course and scope of his employment, including, in the event such employee or agent is deceased, his estate or personal representative; or

          (c) An entity, whether or not incorporated, facility, or institution employing one or more persons described in subparagraph (a) of this subsection, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, trustee, employee, or agent thereof acting in the course and scope of his employment, including in the event such officer, director, employee, or agent is deceased, his estate or personal representative;

shall be immune from civil action for damages arising out of the good faith performance of their duties on such committees, where such actions are being brought by or on behalf of the person who is being evaluated.

          (2) No member, employee, staff person, or investigator of a professional review committee shall be liable in a civil action as a result of acts or omissions made in good faith on behalf of the committee; nor shall any person be so liable for filing charges with or supplying information or testimony in good faith to any professional review committee; nor shall a member, employee, staff person, or investigator of a professional society, of a professional examining or licensing board, of a professional disciplinary board, of a governing board of any institution, or of any employer of professionals be so liable for good faith acts or omissions made in full or partial reliance on recommendations or decisions of a professional review committee or examining board.

 

        Sec. 22.  Section 1, chapter 35, Laws of 1975 1st ex. sess. as amended by section 1, chapter 149, Laws of 1983 and RCW 4.24.290 are each amended to read as follows:

          In any civil action for damages based on professional negligence against a hospital which is licensed by the state of Washington or against the personnel of any such hospital, or against a member of the healing arts including, but not  limited to, an acupuncturist certified under chapter 18.-- RCW (sections 1 through 19 of this 1985 act), a physician licensed under chapter 18.71 RCW, an osteopathic physician licensed under chapter 18.57 RCW, a chiropractor licensed under chapter 18.25 RCW, a dentist licensed under chapter 18.32 RCW, a podiatrist licensed under chapter 18.22 RCW, or a nurse licensed under chapters 18.78 or 18.88 RCW, the plaintiff in order to prevail shall be required to prove by a preponderance of the evidence that the defendant or defendants failed to exercise that degree of skill, care, and learning possessed at that time by other persons in the same profession, and that as a proximate result of such failure the plaintiff suffered damages, but in no event shall the provisions of this section apply to an action based on the failure to obtain the informed consent of a patient.

 

        Sec. 23.  Section 7, chapter 56, Laws of 1975-'76 2nd ex. sess. as amended by section 1, chapter 53, Laws of 1981 and RCW 7.70.020 are each amended to read as follows:

          As used in this chapter "health care provider" means either:

          (1) A person licensed by this state to provide health care or related services, including, but not limited to, a certified acupuncturist, a physician, osteopathic physician, dentist, nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, pharmacist, optician, physician's assistant, midwife, osteopathic physician's assistant, nurse practitioner, or physician's trained mobile intensive care paramedic, including, in the event such person is deceased, his estate or personal representative;

          (2) An employee or agent of a person described in part (1) above, acting in the course and scope of his employment, including, in the event such employee or agent is deceased, his estate or personal representative; or

          (3) An entity, whether or not incorporated, facility, or institution employing one or more persons described in part (1) above, including, but not limited to, a hospital, clinic, health maintenance organization, or nursing home; or an officer, director, employee, or agent thereof acting in the course and scope of his employment, including in the event such officer, director, employee, or agent is deceased, his estate or personal representative.

 

        Sec. 24.  Section 2, chapter 168, Laws of 1983 as amended by section 18, chapter 9, Laws of 1984 and by section 57, chapter 279, Laws of 1984 and RCW 18.120.020 are each reenacted and amended to read as follows:

          The definitions contained in this section shall apply throughout this chapter unless the context clearly requires otherwise.

          (1)  "Applicant group" includes any health professional group or organization, any individual, or any other interested party which proposes that any health professional group not presently regulated be regulated or which proposes to substantially increase the scope of practice of the profession.

          (2)  "Certificate" and "certification" mean a voluntary process by which a statutory regulatory entity grants recognition to an individual who (a) has met certain prerequisite qualifications specified by that regulatory entity, and (b) may assume or use "certified" in the title or designation to perform prescribed health professional tasks.

          (3)  "Grandfather clause" means a provision in a regulatory statute applicable to practitioners actively engaged in the regulated health profession prior to the effective date of the regulatory statute which exempts the practitioners from meeting the prerequisite qualifications set forth in the regulatory statute to perform prescribed occupational tasks.

          (4) "Health professions" means and includes the following health and health-related licensed or regulated professions and occupations:  Podiatry under chapter 18.22 RCW; chiropractic under chapters 18.25 and 18.26 RCW; dental hygiene under chapter 18.29 RCW; dentistry under chapter 18.32 RCW; dispensing opticians under chapter 18.34 RCW; hearing aids under chapter 18.35 RCW; drugless healing under chapter 18.36 RCW; embalming and funeral directing under chapter 18.39 RCW; midwifery under chapter 18.50 RCW; nursing home administration under chapter 18.52 RCW; optometry under chapters 18.53 and 18.54 RCW; ocularists under chapter 18.55 RCW; osteopathy  and osteopathic medicine and surgery under chapters 18.57 and 18.57A RCW; pharmacy under chapters 18.64 and 18.64A RCW; medicine under chapters 18.71, 18.71A, and 18.72 RCW; emergency medicine under chapter 18.73 RCW; physical therapy under chapter 18.74 RCW; practical nurses under chapter 18.78 RCW; psychologists under chapter 18.83 RCW; registered nurses under chapter 18.88 RCW;  occupational therapists licensed pursuant to chapter 18.59 RCW; veterinarians and animal technicians under chapter 18.92 RCW; ((and)) massage practitioners under chapter 18.108 RCW; and acupuncturists certified under chapter 18.-- RCW (sections 1 through 19 of this 1985 act).

          (5)  "Inspection" means the periodic examination of practitioners by a state agency in order to ascertain whether the practitioners' occupation is being carried out in a fashion consistent with the public health, safety, and welfare.

          (6)  "Legislative committees of reference" means the standing legislative committees designated by the respective rules committees of the senate and house of representatives to consider proposed legislation to regulate health professions not previously regulated.

          (7)  "License", "licensing", and "licensure" mean permission to engage in a health profession which would otherwise be unlawful in the state in the absence of the permission.  A license is granted to those individuals who meet prerequisite qualifications to perform prescribed health professional tasks and for the use of a particular title.

          (8)  "Professional license" means an individual, nontransferable authorization to carry on a health activity based on qualifications which include:  (a) Graduation from an accredited or approved program, and (b) acceptable performance on a qualifying examination or series of examinations.

          (9)  "Practitioner" means an individual who (a) has achieved knowledge and skill by practice, and (b) is actively engaged in a specified health profession.

          (10)  "Public member" means an individual who is not, and never was, a member of the health profession being regulated or the spouse of a member, or an individual who does not have and never has had a material financial interest in either the rendering of the health professional service being regulated or an activity directly related to the profession being regulated.

          (11)  "Registration" means the formal notification which, prior to rendering services, a practitioner shall submit to a state agency setting forth the name and address of the practitioner; the location, nature and operation of the health activity to be practiced; and, if required by the regulatory entity, a description of the service to be provided.

          (12)  "Regulatory entity" means any board, commission, agency, division, or other unit or subunit of state government which regulates one or more professions, occupations, industries, businesses, or other endeavors in this state.

          (13)  "State agency" includes every state office, department, board, commission, regulatory entity, and agency of the state, and, where provided by law, programs and activities involving less than the full responsibility of a state agency.

 

        Sec. 25.  Section 4, chapter 279, Laws of 1984 and RCW 18.130.040 are each amended to read as follows:

          (1) This chapter applies only to the director and the boards having jurisdiction in relation to the professions licensed under the chapters specified in this section.  This chapter does not apply to any business or profession not licensed under the chapters specified in this section.

          (2) (a) The director has authority under this chapter in relation to the following professions:

          (i) Dispensing opticians licensed under chapter 18.34 RCW;

          (ii) Drugless healers licensed under chapter 18.36 RCW;

          (iii) Midwives licensed under chapter 18.50 RCW;

          (iv) Ocularists licensed under chapter 18.55 RCW;

          (v) Psychologists licensed under chapter 18.83 RCW unless a disciplinary committee is established under chapter 18.83 RCW;

          (vi) Massage operators and businesses licensed under chapter 18.108 RCW; ((and))

          (vii) Dental hygienists licensed under chapter 18.29 RCW; and

          (viii) Acupuncturists certified under chapter 18.-- RCW (sections 1 through 19 of this 1985 act).

          (b) The boards having authority under this chapter are as follows:

          (i) The podiatry board as established in chapter 18.22 RCW;

          (ii) The chiropractic disciplinary board as established in chapter 18.26 RCW governing licenses issued under chapter 18.25 RCW;

          (iii) The dental disciplinary board as established in chapter 18.32 RCW;

          (iv) The council on hearing aids as established in chapter 18.35 RCW;

          (v) The board of funeral directors and embalmers as established in chapter 18.39 RCW;

          (vi) The board of examiners for nursing home administrators as established in chapter 18.52 RCW;

          (vii) The optometry board as established in chapter 18.54 RCW governing licenses issued under chapter 18.53 RCW;

          (viii) The board of osteopathic medicine and surgery as established in chapter 18.57 RCW governing licenses issued under chapters 18.57 and 18.57A RCW;

          (ix) The medical disciplinary board as established in chapter 18.72 RCW governing licenses and registrations issued under chapters 18.71 and 18.71A RCW;

          (x) The board of physical therapy as established in chapter 18.74 RCW;

          (xi) The board of occupational therapy practice as established in chapter 18.59 RCW;

          (xii) The board of practical nursing as established in chapter 18.78 RCW;

          (xiii) The board of nursing as established in chapter 18.88 RCW; and

          (xiv) The veterinary board of governors as established in chapter 18.92 RCW.

          (3) In addition to the authority to discipline license holders, the disciplining authority has the authority to grant or deny licenses based on the conditions and criteria established in this chapter and the chapters specified in subsection (2) of this section.  However, the board of chiropractic examiners has authority over issuance and denial of licenses provided for in chapter 18.25 RCW, the board of dental examiners has authority over issuance and denial of licenses provided for in RCW 18.32.040, and the board of medical examiners has authority over issuance and denial of licenses and registrations provided for in chapters 18.71 and 18.71A RCW.  This chapter governs any investigation, hearing, or proceeding relating to denial of licensure by the disciplining authority, the board of chiropractic examiners, the board of dental examiners, and the board of medical examiners, if adopted pursuant to this chapter by the disciplinary authority.