RULES AND REGULATIONS
Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF CHIROPRACTIC
[ 49 PA. CODE CH. 5 ]
Needle Acupuncture
[39 Pa.B. 7203]
[Saturday, December 26, 2009]The State Board of Chiropractic (Board) amends § 5.81(1)(xv) (relating to unprofessional and immoral conduct) to read as set forth in Annex A.
Description and Need for the Rulemaking
Section 102 of the Chiropractic Practice Act (act) (63 P. S. § 625.102) generally defines chiropractic as a branch of the healing arts dealing with the relationship between the articulations of the vertebral column, as well as other articulations, and the neuro-musculo-skeletal system and the role of these relations in the restoration and maintenance of health. This definition explicitly excludes surgery from the scope of chiropractic practice. Without statutory support for the practice of needle acupuncture to be considered part of the practice of chiropractic (as it is in some other jurisdictions), the Board previously prohibited its licensees from advertising or practicing needle acupuncture. Because the Board may take disciplinary action against a licensee who has displayed misconduct in the practice of chiropractic or committed unprofessional conduct, the Board achieved this prohibition by defining misconduct to include advertising or practicing needle acupuncture.
Under the Acupuncture Licensure Act (63 P. S. §§ 1801—1806.1), a qualified person may become licensed by the State Board of Medicine or the State Board of Osteopathic Medicine to practice acupuncture. Unlike dentists, podiatrists and veterinarians as provided in section 3(h) of the Acupuncture Licensure Act (63 P. S. § 1803(h)), a chiropractor seeking to practice acupuncture must become licensed with one of these medical boards under the Acupuncture Licensure Act and be subject to regulation of that medical board. Although it is not the practice of chiropractic, the Board sees no compelling basis to prohibit the practice of acupuncture by a licensed chiropractor who is licensed with a medical board to practice acupuncture and is acting in accordance with that medical board's regulations concerning the practice of acupuncture.
Summary of Comments and Responses to Proposed Rulemaking
The Board published notice of proposed rulemaking at 39 Pa.B. 1004 (February 21, 2009) with a 30-day public comment period. The Pennsylvania Chiropractic Association and the Pennsylvania Medical Society submitted written comments supporting the proposed rulemaking. The Board received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC) as part of their review of proposed rulemaking under the Regulatory Review Act (71 P. S. §§ 745.1—745.12). The Board did not receive comments from the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) as part of its review of proposed rulemaking under the Regulatory Review Act.
The HPLC noted that Act 91 of 2008 amended the Acupuncture Registration Act to redesignate registration as licensure. The HPLC suggested revising the references to reflect licensure and not registration. IRRC agreed with the HPLC and recommended these changes. The Board has revised the final-form rulemaking to reflect licensure under the Acupuncture Licensure Act. Also, because the State Board of Medicine is currently promulgating final-form rulemaking 16A-4924 (acupuncture licensure) that will amend its regulations to, among other things, reflect licensure rather than registration of acupuncturists, the Board has revised this final-form rulemaking to refer to those amended regulations. See 38 Pa.B. 2059 (May 3, 2008). However, because the State Board of Osteopathic Medicine has not yet amended its regulations to reflect licensure, the Board continues to cite that Board's regulations referring to registration.
Fiscal Impact and Paperwork Requirements
The final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions and will impose no additional paperwork requirements upon the Commonwealth, political subdivisions or the private sector.
Effective Date
The final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Statutory Authority
The final-form rulemaking is authorized under sections 302(3), 506(a)(4) and 506(a)(11) of the act (63 P. S. §§ 625.302(3), 625.506(a)(4) and 625.506(a)(11)).
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 11, 2009, the Board submitted a copy of the notice of proposed rulemaking, published at 39 Pa.B. 1004, to IRRC and the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments received from IRRC, the HPLC, the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), the the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC on November 18, 2009. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 19, 2009, and approved the final-form rulemaking.
Additional Information
Persons who require additional information about the final-form rulemaking should submit inquiries to Regulatory Unit Counsel, Department of State, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7155, or st-chiropractic@state.pa.us.
Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law and all comments were considered.
(3) The amendments to this final-form rulemaking do not enlarge the scope of proposed rulemaking published at 39 Pa.B. 1004.
(4) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the act.
Order
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 5, are amended, by amending § 5.81 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) The final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
KATHLEEN G. McCONNELL, D.C.,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 39 Pa.B. 6915 (December 5, 2009).)
Fiscal Note: Fiscal Note 16A-4317 remains valid for the final adoption of the subject regulation.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 5. STATE BOARD OF CHIROPRACTIC
Subchapter H. DISCIPLINARY ACTION § 5.81. Unprofessional and immoral conduct.
A licensee who engages in unprofessional or immoral conduct is subject to disciplinary action in accordance with section 506 of the act (63 P. S. § 625.506).
(1) Unprofessional conduct includes the following:
(i) Revealing personally identifiable facts obtained as the result of a doctor-patient relationship without the prior consent of the patient, except as authorized or required by law.
(ii) Performing a chiropractic service incompetently or performing a chiropractic service which the licensee knows or has reason to know that the licensee is not competent to perform.
(iii) Advertising a chiropractic practice in a manner which is intended or has the tendency to deceive the public.
(iv) Knowingly permitting, aiding or abetting a person who is not licensed to perform activities, requiring a license in health care practice.
(v) Continuing to practice chiropractic or to indicate the ability to practice chiropractic while one's license is unregistered or inactive or is suspended or revoked.
(vi) Impersonating another health care practitioner.
(vii) Offering, undertaking or agreeing to cure or treat a disease by a secret method, procedure, treatment or preparation or the treating of a human condition by a method, means or procedure which the licensee refuses to divulge to the Board upon demand of the Board.
(viii) Delegating a radiological procedure to a person whom the chiropractor knows or has reason to know is not qualified to perform the procedure, under section 522 of the act (63 P. S. § 625.522) and § 5.62 (relating to auxiliary personnel who may perform radiological procedures).
(ix) Failing to exercise direct supervision over auxiliary personnel authorized to perform radiological procedures.
(x) Willfully engaging in sexual activity with a patient within the scope of the chiropractor/patient relationship or harassing, assaulting, abusing or intimidating a patient.
(xi) Abandoning a patient. Abandonment occurs when a licensee withdraws services after a doctor-patient relationship has been established, by failing to give notice to the patient of the licensee's intention to withdraw in sufficient time to allow the patient to obtain necessary chiropractic care.
(xii) Ordering excessive tests, treatment or use of treatment and diagnostic facilities not reasonably warranted by the condition of the patient.
(xiii) Failure to include the word chiropractor, chiropractic, D.C. or a derivative thereof in advertisements, letterhead, signs and other printed material.
(xiv) Practicing or advertising adjunctive procedures without a certificate to use adjunctive procedures issued by the Board.
(xv) Practicing or advertising needle acupuncture, unless the licensee is licensed to do so by the State Board of Medicine or the State Board of Osteopathic Medicine and acting in accordance with the Acupuncture Licensure Act (63 P. S. §§ 1801—1806.1) and regulations of the State Board of Medicine in §§ 18.11—18.18 (relating to licensure and practice of acupuncturists and practitioners of oriental medicine) or regulations of the State Board of Osteopathic Medicine in §§ 25.301—25.308 (relating to registration and practice of acupuncturists).
(2) Immoral conduct includes the following:
(i) Misrepresentation or concealment of a material fact in obtaining a license to practice chiropractic or the reinstatement thereof.
(ii) The commission of an act involving moral turpitude, dishonesty or corruption.
[Pa.B. Doc. No. 09-2368. Filed for public inspection December 24, 2009, 9:00 a.m.]
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