PROPOSED RULEMAKINGS
STATE BOARD OF MEDICINE
[49 PA. CODE CH. 18]
Acupuncturists and Practitioners of Oriental Medicine
[52 Pa.B. 985]
[Saturday, February 12, 2022]The State Board of Medicine (Board) proposes to amend Chapter 18, Subchapter B (relating to registration and practice of acupuncturists and practitioners of Oriental medicine) to read as set forth in Annex A. Specifically, the Board is proposing amendments to §§ 18.11, 18.13, 18.13a, 18.15, 18.15a and 18.18 and adding § 18.20 (relating to professional liability insurance coverage for acupuncturists and practitioners of Oriental medicine).
Effective Date
This proposed rulemaking will be effective upon publication of the final-form rulemaking in the Pennsylvania Bulletin.
Statutory Authority
The primary statutory authority to regulate acupuncturists is granted by the Acupuncture Licensure Act (ALA) (63 P.S. §§ 1801—1806.1). Specifically, section 3(b) of the ALA (63 P.S. § 1803(b)) authorizes the Board to promulgate regulations requiring the proper training of individuals, including physicians, before they may be licensed to practice acupuncture in this Commonwealth and further authorizes the Board to promulgate other regulations as may be deemed proper and necessary regarding the practice of acupuncture.
Background and Need for Amendments
Beginning in 2018, the Board undertook a comprehensive review of its regulatory scheme for acupuncturists and practitioners of Oriental medicine. As a result of that review, the Board is proposing comprehensive amendments to Chapter 18, Subchapter B to: (1) update outdated terminology; (2) remove outdated licensure provisions; (3) conform the regulations to the act of September 24, 2014 (P.L. 2472, No. 134) (Act 134 of 2014); (4) restructure requirements in § 18.15 (relating to practice responsibilities of acupuncturist and practitioner of Oriental medicine who is not a medical doctor) based on the type of license held; (5) expand the list of opportunities to demonstrate English language proficiency; and (6) rename the subchapter to reflect the fact that since 2008, acupuncturists are licensed (not registered).
Updating outdated terminology
As part of its review, the Board explored the feasibility of eliminating the words ''Chinese'' and ''Oriental'' from the regulations altogether to eliminate terms that may be considered culturally insensitive.
The term ''Chinese herbology''
The Board proposes to replace the term ''Chinese herbology'' with the term ''East Asian herbology.'' While the term ''Chinese herbology'' is a term of art accepted and utilized within the regulated community, it is generally associated with the traditional herbal practices and theories commonly associated with those utilized in China, Taiwan, Korea and Japan. During the development of this proposed rulemaking, several alternative terms were discussed, including ''herbology,'' ''Asian herbology,'' ''Eastern Asian herbology'' and ''East Asian herbology.'' The alternative term which appears to be most acceptable to the regulated community and the least likely to cause confusion with the public is ''East Asian herbology.''
The Board initially considered, but rejected, the simple term ''herbology'' because it appeared to be overly broad. Other board-regulated practitioners may utilize herbs, minerals and compounds as part of their practice (albeit, utilizing Western herbs and philosophies). Consequently, the term ''herbology'' without further modification was deemed to be too broad of a term to accurately reflect the intended scope of practice for a practitioner of Oriental medicine.
Similarly, ''Asian herbology'' was considered but rejected because it too could imply the inclusion of traditional herbal practices and theories which may be inconsistent with traditional herbs and herbal theories from China, Taiwan, Korea and Japan. In theory, the term ''Asian herbology'' could include herbal therapies and theories from all areas of Asia; including India, Saudi Arabia and north-central Russia. Those locales are likely to have their own distinct herbal remedy traditions and may utilize herbs which do not naturally grow, and until recently, have not been routinely available in areas which traditionally employed what the current regulations refer to as ''Chinese herbology.'' Consequently, ''Asian herbology'' appeared to be a term not compatible with the historic traditions and herbs of what the current regulations refer to as ''Chinese herbology.''
''Eastern Asian herbology'' likewise suffered from encompassing too broad of a geographic area in its potential reach, as it could potentially include areas such as eastern Russia, the Philippines, Thailand and Indonesia—countries which have land masses at similar longitudes as countries which utilize traditional ''Chinese herbology,'' but which do not necessarily share the same herbal theories and traditions.
East Asia is a generally recognized geographic term encompassing the countries/territories commonly known as China, Hong Kong, Japan, Macau, Mongolia, North Korea, South Korea and Taiwan. Consequently, the term ''East Asian herbology'' was selected as the most appropriate substitute term for ''Chinese herbology'' and, where appropriate, the Board has substituted ''East Asian herbology'' for that term. The Board has also proposed a new definition of ''East Asian herbology'' to assist the public and regulated community in understanding the scope of the practice. It should be noted that the Board does propose to retain several references to ''Chinese herbology'' within the regulations. Those instances were limited to circumstances where a third-party certifying organization requires completion of a specified examination or educational program and the examination/educational program continues to utilize the term ''Chinese herbology'' within the name.
The term ''Oriental medicine''
After much deliberation, the Board proposes to keep the term ''Oriental medicine.'' Comments from interested stakeholders, additional research and discussions with the public during Board committee meetings revealed that the term ''Oriental medicine'' is currently a generally accepted term of art within the regulated community and is recognized and understood by members of the public who wish to seek those types of services. The term ''Oriental medicine'' is used within the name of the specialized school accrediting body recognized by the United States Department of Education (the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM®)), the name of the certifying body recognized/accepted by the Board as well as approximately 45 other states (the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM®)), the name of one of the two recognized programs of study by NCCAOM® (Oriental Medicine Program), and is part of the school name of at least 15 ACAOM® accredited and candidate schools.
The Board noted during its outreach, as well as during committee meetings to discuss drafts of this proposed rulemaking, that there was overwhelming opposition within the regulated community itself to changing the title of the ''practitioner of Oriental medicine'' license. Additionally, the Board considered the potential impact on the regulated community which may occur by changing the name of the license to some other title. Individuals who previously obtained services from a practitioner of Oriental medicine may become confused as to the services which may be lawfully provided by an individual who would be required to describe his or her practice utilizing a new term.
Similarly, utilizing terminology which is different than that used by the certifying and accrediting bodies and educational facilities could lead to reasonable concern by the public whether a practitioner is truly qualified to engage in these activities. Finally, the selection of a different and unique title which is not generally utilized or recognized within other jurisdictions may impact the portability of licensure.
Given the potential confusion by the public regarding the scope of licensure and services which may be provided if a unique term was utilized, the lack of support within the regulated community to alter the name of the authorization to practice using herbal therapy, and the potential economic impact on the regulated community by altering the name, the Board proposes to maintain the name of the authorization for an acupuncturist to practice East Asian herbology as ''practitioner of Oriental medicine.''
The Board additionally noted that it could not control the names utilized by other organizations such as accrediting bodies, certification bodies, schools and the names those organizations may utilize to describe the programs of instruction and examinations they offer. Therefore, in addition to maintaining the name ''practitioner of Oriental medicine,'' this proposed rulemaking also maintains many of the other references to ''Oriental medicine'' which currently are used within the existing regulations.
Removal of outdated regulations related to acupuncture licensure
As part of the Board's ongoing work to continuously review and address outdated regulations, this proposed rulemaking will delete § 18.13(c) (relating to requirements for licensure as an acupuncturist). The specific subsection was related to the registration requirements for medical doctors applying for registration as acupuncturists prior to January 1, 1988. As the provision is no longer relevant, the Board proposes to delete it.
Amendments to conform to Act 134 of 2014
Diagnosis by a physician, dentist or podiatrist
This proposed rulemaking will incorporate statutory amendments to the ALA made by the Act 134 of 2014. Act 134 of 2014 amended the ALA to authorize acupuncturists to treat individuals who do not present any symptoms of a condition for an unlimited period of time. See section 3.1(c) of the ALA (63 P.S. § 1803.1(c)).
The Board proposes to amend its regulations to more clearly state how long an acupuncturist may treat a person without having received a diagnosis from a physician, dentist or podiatrist. The Board did receive a comment during consideration of this proposed rulemaking inquiring why the Board limited the authority to diagnose to only physicians, dentists and podiatrists instead of including in the proposed regulations other practitioners who may be authorized to diagnose conditions, such as chiropractors or certified registered nurse practitioners. The Board notes that the General Assembly specified in section 3.1 of the ALA that the required diagnosis be made by ''physician, dentist or podiatrist.'' Consequently, the Board determined it is without statutory authority to extend the diagnosis authority to other licensing classifications and did not alter the proposed rulemaking in response to the comment.
Professional liability insurance
Act 134 of 2014 also imposed a new requirement that acupuncturists obtain and maintain professional liability insurance of at least $1 million per occurrence or claims made. See section 3.2 of the ALA (63 P.S. § 1803.2). The Board has already implemented the requirement in practice given the statutory requirements expressed within Act 134 of 2014. Nevertheless, the Board has included with this proposed rulemaking package provisions addressing the professional liability insurance requirement to be consistent with Act 134 of 2014, and so that the regulated community and public may more easily understand the need for acupuncturists to obtain and maintain professional liability insurance.
Restructuring of duties and responsibilities based on license held
The Board proposes to substantially restructure § 18.15 to more clearly reflect the varying duties and responsibilities of: (1) an individual who is licensed as an acupuncturist but who is not licensed as a physician; (2) an individual who is licensed as a practitioner of Oriental medicine but who is not licensed as a physician; and (3) an individual who is licensed as an acupuncturist and who is also actively licensed as a medical doctor by the Board.
By way of example, the existing regulation in § 18.15(a)(4) requires acupuncturists to refer a patient to a physician, dentist or podiatrist for diagnosis if acupuncture services are contraindicated. In general, the concept of requiring an acupuncturist to refer a patient to another type of practitioner when the services which may be provided by means of acupuncture are contraindicated is appropriate. However, in considering the literal wording of the regulation, the Board determined that an across-the-board requirement that all individuals licensed as an acupuncturist make a referral to another practitioner was illogical because there are a number of acupuncturists who are also actively licensed as medical doctors. It appears clear that the ALA contemplated that physicians may also wish to incorporate acupuncture within their practice. See section 3(a) of the ALA, which requires physicians who wish to practice acupuncture to obtain separate licensure as an acupuncturist. There appears to be no compelling reason to require a patient to be referred to a second physician under circumstances where a physician-acupuncturist initially evaluates a patient for acupuncture services, but determines that acupuncture will not be effective or is contraindicated. The Board could perceive no compelling reason which would prevent the physician-acupuncturist from simply ''changing hats'' and then providing an evaluation and medical care according to Western modalities. Requiring a physician who happens to also be licensed as an acupuncturist to refer the patient to a second physician simply because the physician-acupuncturist had initially considered, but ultimately excluded, potential acupuncture treatment did not appear in the best interest of patients and, in fact, could potentially harm the public health by delaying treatment and increasing costs.
Similarly, a prohibition on the use of titles or abbreviations implying that an acupuncturist is a doctor or physician could not reasonably be enforced against an acupuncturist already actively licensed as a physician. Consequently, the Board proposes separating the duties and responsibilities of individuals authorized to perform acupuncture by the types of licenses actually held by the individual. This separation will permit the Board to specifically tailor the duties and responsibilities appropriately and will provide the regulated community and the public with clear guidance regarding what a practitioner may and may not do.
English proficiency examination
The Board is proposing to expand the options for an applicant for licensure to demonstrate English language proficiency. The Board's current regulations offer only two options to demonstrate English language proficiency—either the acupuncture licensure examination was taken in English, or the applicant has obtained a passing score (currently set at 550) on the Test of English as a Foreign Language (TOEFL®) examination. After reviewing English language proficiency requirements for acupuncturists in other states, the Board determined that it should be acceptable for an applicant to demonstrate one of the following: (1) that the applicant's licensure examination was taken in English, (2) that the applicant's educational program was conducted in English or (3) that the applicant has achieved an acceptable score on the TOEFL®, the Occupational English Test (OET) for health-related professionals, or a substantially equivalent English language proficiency examination approved by the Board.
With regard to the acceptable score on the TOEFL®, the Board notes that since the last time the Board updated its regulations on this topic, the TOEFL® has been revised numerous times. The current version of the TOEFL® is the TOEFL iBT® (internet-based test). This version of the exam has a total possible scaled score of 120. The Board determined that a score of 83 or higher on this version of the TOEFL® exam (which represents the average score attained by individuals taking the exam for licensure purposes, as well as the average score attained by all test takers) is acceptable to demonstrate English language proficiency for individuals seeking licensure. The Board is providing for the possibility of ''a similar score acceptable to the Board'' because there is a second version of the TOEFL® which is rarely given and only in those limited circumstances that an individual has no possible access to the Internet—the TOEFL® paper-delivered test. This version only includes three of the four sections of the TOEFL iBT® exam (excluding the speaking portion) and is not given a total scaled score—only individual scores on each portion completed. The Board does not expect any applicants to have completed this version of the exam but wants to provide for that possibility in the regulations. In addition, in the event the scoring system for the TOEFL® is altered again in the future, the Board would not need to immediately revise its regulations but could accept a comparable score.
Description of Proposed Amendments
The Board is proposing comprehensive amendments to Chapter 18, Subchapter B, including renaming the subchapter to reflect the fact that since 2008, acupuncturists are licensed (not registered).
The definition of ''acupuncture examination'' in § 18.11 (relating to definitions) is proposed to be amended to reflect that the Board itself does not offer an examination in acupuncture, and to delete references to herbal therapy and the practice of Oriental medicine to more accurately reflect that the examination required to be licensed as an acupuncturist in the Commonwealth is the NCCAOM Acupuncture Program examination.
This proposed rulemaking would add three new definitions to § 18.11 for ''East Asian herbology,'' ''East Asian herbology examination'' and the acronym ''TOEFL®.'' Additionally, the definition of herbal therapy would be amended by replacing the word ''Chinese'' with the phrase ''East Asian;'' and the definition of ''Chinese herbology'' would be deleted. The definition for the acronym ''NCCAOM'' would be amended to include potential successor organizations. In addition, minor typographical corrections are being made.
The Board proposes to amend § 18.13(a) to update the list of acceptable methods for demonstrating English language proficiency for those applicants who did not take the acupuncture examination in English. In addition, the Board proposes to delete subsection (c) pertaining to requirements for licensure as an acupuncturist by a medical doctor prior to 1988 because it is no longer relevant.
The Board proposes to amend § 18.13a (relating to requirements for licensure as a practitioner of Oriental medicine) by changing the required program of study from ''Chinese herbology'' to a program of study consistent with the new definition of ''East Asian herbology,'' and by changing the required examination from ''the NCCAOM examination component on Chinese herbology'' to ''an East Asian herbology examination.'' The Board is retaining the references to the NCCAOM certification in Chinese herbology to be consistent with the name of the credential issued by NCCAOM.
Section 18.15 is proposed to be renamed and substantially reorganized into distinct subsections—one for persons licensed solely as an acupuncturist, a second subsection for persons licensed as a practitioner of Oriental medicine and a third subsection for acupuncturists who are also licensed as medical doctors by the Board.
Subsection (a) is proposed to be amended so that it more clearly sets forth the practice responsibilities to the patient and the public for a person licensed as an acupuncturist who is not also licensed as a physician. In summary, the changes to the subsection incorporate the amendments in Act 134 of 2014 by clarifying that an acupuncturist may treat individuals with no symptoms of a condition for an unlimited time; may treat an individual presenting with symptoms of a condition for up to 60 days before referral for diagnosis by a physician, dentist or podiatrist; and may treat an individual presenting with symptoms of a condition after 60 days if the patient has been examined and diagnosed a physician, dentist or podiatrist. Additionally, due to the restructuring of the subsection, a new paragraph has been added specifically addressing the name tag or badge which must be worn and the information which may or may not be present on the name tag or badge.
Subsection (b) is proposed to be deleted and a new subsection (b.1) added that would set forth the practice responsibilities to the patient and the public for a person licensed as a practitioner of Oriental medicine who is not licensed as a physician. In summary, a practitioner of Oriental medicine must comply with the general requirements of acupuncturists found in subsection (a)(1)—(9). Additionally, a practitioner of Oriental medicine is required to perform an herbal therapy evaluation and, if appropriate, develop a treatment plan incorporating East Asian herbology modalities. In the event the practitioner of Oriental medicine determines that the patient's symptoms have worsened, that further treatment by East Asian herbology modalities is contraindicated, or that East Asian herbology practices may interfere with known drugs already prescribed to the patient, the practitioner of Oriental medicine must refer the patient to a physician, dentist or podiatrist as appropriate. Finally, paragraph (3) would address the name tag or badge which must be worn and the information which may or may not be present on the name tag or badge.
Subsection (c) is proposed to be added to specifically set forth the practice responsibilities to the patient and the public for a person licensed as an acupuncturist who is also actively licensed as a medical doctor by the Board. Many practice duties and responsibilities are already imposed on medical doctors under Chapter 16 (relating to State Board of Medicine—general provisions), consequently, restating those requirements is not necessary. A medical doctor licensed as an acupuncturist will be required to include in the patient's medical records evidence of having performed an acupuncture evaluation and development of an acupuncture treatment plan for patients who were considered for, or who receive acupuncture services. Additionally, the subsection clarifies the duty of a medical doctor providing acupuncture services to comply with sterilization standards.
Section 18.15a(a) (relating to scope of practice of acupuncturists and practitioners of Oriental medicine) is proposed to be amended to clarify that an acupuncturist may utilize all supplemental techniques except herbal therapy unless licensed by the board as a practitioner of Oriental medicine. The proposed regulation clarifies that non-prescription topical remedies may be utilized by acupuncturists even though they may contain as active ingredients parts of plants, minerals and other organic materials. Subsection (b) is proposed to be amended to clarify that a practitioner of Oriental medicine may utilize therapeutic herbs that contain active ingredients that are similar or equivalent to active ingredients in drugs classified by the Federal Food and Drug Administration unless otherwise prohibited by law or regulation. Additionally, subsection (c) will be amended to correct a typographical error.
Section 18.18 (relating to disciplinary and corrective measures) is proposed to be amended to clarify that an individual licensed as an acupuncturist or as a practitioner of Oriental medicine is subject to all of the disciplinary sanctions authorized under section 42 of the Medical Practice Act of 1985 (MPA) (63 P.S. § 422.42) and 63 Pa.C.S. § 3108(b) (relating to civil penalties) for failing to comply with § 18.15, practicing or holding out as being able to practice acupuncture without a current and valid license as an acupuncturist, practicing or holding out as being able to practice East Asian herbology without a current and valid license as a practitioner of Oriental medicine, practicing acupuncture or East Asian herbology without current professional liability insurance, and engaging in conduct prohibited under section 41 of the MPA (63 P.S. § 422.41).
Finally, the Board proposes to add § 18.20 (relating to professional liability insurance coverage for acupuncturists). In conformity with Act 134 of 2014, subsection (a) will require an acupuncturist to maintain professional liability insurance coverage in the minimum amount of $1 million per occurrence or claims made. Subsection (b) provides that proof of insurance coverage may be provided by: (1) a certificate of insurance or copy of the declaration page from a personally purchased professional liability insurance policy setting forth the effective date, expiration date and dollar amounts of coverage; (2) a certificate of insurance or copy of the declaration page from an employer purchased professional liability insurance policy describing the licensee by name as a covered party under the policy, the effective date, expiration date and dollar amounts of coverage; or (3) evidence of a plan of self-insurance approved by the Insurance Commissioner under regulations of the Insurance Department in 31 Pa. Code Chapter 243 (relating to medical malpractice and health-related self-insurance plans). Subsection (c) would provide that a licensee who does not have current professional liability insurance coverage as required may not practice as an acupuncturist or practitioner of Oriental medicine in this Commonwealth. Subsection (d) would require that the professional liability insurance coverage for a licensed practitioner of Oriental medicine shall cover claims related to acupuncture as well as claims related to the provision of herbal therapy.
Fiscal Impact and Paperwork Requirements
The only costs and additional paperwork associated with this proposed rulemaking are related to the requirement for acupuncturists and practitioner of Oriental medicine to obtain professional liability insurance and to provide proof to the Board, which was imposed by the General Assembly in 2014, and was implemented by the Board at that time. The Board estimates these costs to be approximately $425 annually per licensee.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on January 26, 2022, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the rulemaking by the Board, the General Assembly and the Governor.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Dana Wucinski, Counsel, State Board of Medicine, P.O. Box 69523, Harrisburg, PA 17106-9523, or by e-mail to RA-STRegulatoryCounsel@pa.gov, within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Include in the subject line ''16A-4956 (Acupuncturists and Practitioners of Oriental Medicine)'' when submitting comments.
MARK B. WOODLAND, MD,
ChairpersonFiscal Note: 16A-4956. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 18. STATE BOARD OF MEDICINE—PRACTITIONERS OTHER THAN MEDICAL DOCTORS
Subchapter B. [REGISTRATION] LICENSURE AND PRACTICE OF ACUPUNCTURISTS AND PRACTITIONERS OF ORIENTAL MEDICINE § 18.11. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Acupuncture examination—An examination [offered or] recognized by the Board to test whether an individual has accumulated sufficient academic knowledge with respect to the practice of acupuncture [and herbal therapy] to qualify for the privilege of practicing as an acupuncturist [or as a practitioner of Oriental medicine] in the Commonwealth. The Board recognizes the NCCAOM component examinations in acupuncture and sterilization procedures as the examination for [registration] licensure as an acupuncturist [and the NCCAOM examination component in Chinese herbology as the examination for registration as a practitioner of Oriental medicine].
Acupuncture medical program—An academic or clinical program of study in acupuncture which has been given category I continuing medical education credit by an institution accredited or recognized by the Accreditation Council on Continuing Medical Education to conduct category I continuing medical education courses.
Acupuncturist—An individual licensed to practice [accupuncture] acupuncture by the Board.
[Chinese herbology—The study of the use of herbs in the Oriental medicine tradition.]
East Asian herbology—The use of herbal preparations and products that contain as active ingredients parts of plants, minerals and other organic materials, or a combination thereof, administered according to East Asian medicine tradition to normalize function.
East Asian herbology examination—An examination recognized by the Board to test whether an acupuncturist has accumulated sufficient academic knowledge with respect to the practice of herbal therapy to qualify for licensure as a practitioner of Oriental medicine in the Commonwealth. The Board recognizes the NCCAOM examination component in Chinese herbology and the NCCAOM examination for Oriental medicine as the examinations for licensure as a practitioner of Oriental medicine.
Herbal therapy—The application of [Chinese] East Asian herbology to the treatment of acupuncture patients.
NCCAOM—The National Certification Commission for Acupuncture and Oriental Medicine or its successor organization.
Practitioner of Oriental medicine—An acupuncturist who is licensed by the Board to use herbal therapy.
Supplemental techniques—The use of traditional and modern Oriental therapeutics, heat therapy, moxibustion, electrical and [low level] low-level laser stimulation, acupressure and other forms of massage, and counseling that includes the therapeutic use of foods and supplements and lifestyle modifications.
TOEFL®—The Test of English as a Foreign Language offered by Educational Testing Service (ETS).
§ 18.13. Requirements for licensure as an acupuncturist.
(a) The Board will license as an acupuncturist a person who satisfies the following requirements:
(1) Has successfully completed an acupuncture educational program which includes a course in needle sterilization techniques.
(2) Has obtained a passing grade on an acupuncture examination or has been certified by NCCAOM. If the examination was not taken in English, but is otherwise acceptable and a passing score was secured, the Board will accept the examination result if the applicant has also [secured a score of 550 on the test of English as a Foreign Language (TOEFL)] demonstrated English language proficiency by one of the following methods:
(i) Demonstrating that the applicant's acupuncture educational program was conducted in English.
(ii) Demonstrating that the applicant has achieved a scaled score of at least 83, or similar score acceptable to the Board, on the TOEFL®.
(iii) Demonstrating that the applicant has achieved a score of at least 350 on each of the four sub-tests of the Occupational English Test for any of the health-related professions.
(iv) Demonstrating that the applicant has achieved a passing score on a substantially equivalent English language proficiency examination, as approved by the Board.
(b) The Board will license as an acupuncturist a medical doctor who satisfies the following requirements:
(1) Has successfully completed 200 hours of training in acupuncture medical programs including examinations required by those programs.
(2) Submits an application to register as an acupuncturist accompanied by the required fee as provided under § 16.13 (relating to licensure, certification, examination and registration fees).
(c) [Prior to January 1, 1988, the Board will register as an acupuncturist a medical doctor who satisfies the requirements of subsection (a), (b) or the following:
(1) Has at least 3 years of acupuncture practice—a minimum of 500 patient visits per year—documented to the satisfaction of the Board.
(2) Submits an application to register as an acupuncturist accompanied by the required fee. For the fee amount, see § 16.13.] (Reserved).
§ 18.13a. Requirements for licensure as a practitioner of Oriental medicine.
(a) An acupuncturist who also intends to use herbal therapy is required to be licensed by the Board as a practitioner of Oriental medicine.
(b) The Board will license an acupuncturist as a practitioner of Oriental medicine if the licensee, in addition to meeting the requirements under § 18.13 (relating to requirements for licensure as an acupuncturist) has fulfilled one of the following:
(1) Successfully completed an acupuncture education program that includes the study of [Chinese] East Asian herbology and has passed [the NCCAOM examination component on Chinese herbology] an East Asian herbology examination.
(2) Has obtained NCCAOM certification in Chinese herbology or Oriental medicine, which includes passing the NCCAOM examination component in Chinese herbology.
(c) An acupuncturist registered with the Board prior to April 14, 2007, may obtain a license as a practitioner of Oriental medicine if the acupuncturist can demonstrate one of the following:
(1) Successful completion of [a Chinese] an East Asian herbology or Oriental medicine education program recognized by the licensing authority of another state or United States territory for the practice of herbal therapy or Oriental medicine and successful completion of an examination in [Chinese] East Asian herbology or Oriental medicine recognized by the licensing authority of another state or United States territory for the practice of herbal therapy or Oriental medicine.
(2) NCCAOM certification in Chinese herbology or Oriental medicine.
(3) The achievement of cumulative qualifications that the Board determines to be equivalent to the standard requirements for registration as a practitioner of Oriental medicine.
(d) This [subsection] section does not apply to a medical doctor licensed as an acupuncturist nor does it restrict the practice of medicine by a medical doctor.
§ 18.15. Practice responsibilities of acupuncturist and practitioner of Oriental medicine who is not a physician; practice responsibilities of an acupuncturist who is licensed as a medical doctor.
(a) Responsibilities to patient and public—acupuncturist who is not a physician. [In relation to the acupuncture patient, the acupuncturist and the practitioner of Oriental medicine] An acupuncturist who is not a physician:
(1) Shall perform an acupuncture [or Oriental medicine] evaluation and develop an acupuncture [or Oriental medicine] treatment plan.
(1.1) May treat an individual presenting with no symptoms of a condition for an unlimited period of time.
(2) May treat [the patient's symptoms without the condition being diagnosed by a physician, dentist or podiatrist] an individual presenting with symptoms of a condition for 60 calendar days from the date of the first treatment without the condition being diagnosed by a physician, dentist or podiatrist.
(3) May treat [the patient's] an individual presenting with symptoms of a condition beyond 60 calendar days from the date of first treatment if the patient has obtained an examination and diagnosis from a physician, dentist or podiatrist.
(4) Shall promptly refer the patient presenting with symptoms of a condition to a physician, dentist or podiatrist, as appropriate to the patient's condition, if the acupuncturist [or practitioner of Oriental medicine] determines that further acupuncture [or Oriental medicine] treatment is contraindicated for the patient or determines that the patient's symptoms have worsened.
(5) Shall consult with the patient's physician, dentist, podiatrist or other health care practitioner upon request of the patient.
(6) Shall cooperate with the patient's physician, dentist or podiatrist in regard to the coordination of the patient's care, and comply with restrictions or conditions as directed by the physician, dentist or podiatrist.
(7) May not diagnose a physical or mental ailment or condition or prescribe or dispense a drug. This provision does not prohibit the use of diagnostic billing codes for billing or reimbursement purposes.
(8) Shall comply strictly with sterilization standards relative to aseptic practices.
(9) Shall maintain patient records in a manner consistent with § 16.95 (relating to medical records).
(10) Shall wear a tag or badge with lettering clearly visible to the patient bearing the acupuncturist's name and the title ''acupuncturist.'' The use of the words doctor, physician or any title or abbreviation implying licensure as a physician on this tag or badge is prohibited.
(b) [Identification of acupuncturist or practitioner of Oriental medicine. An acupuncturist who is not a medical doctor shall wear a tag or badge with lettering clearly visible to the patient bearing the acupuncturist's name and the title ''acupuncturist'' or ''practitioner of Oriental medicine,'' as appropriate. The use of the word doctor on this tag or badge is prohibited.] (Reserved).
(b.1) Additional responsibilities to patient and public—practitioner of Oriental medicine who is not a physician. In addition to the responsibilities in subsection (a)(1)—(9), a licensed practitioner of Oriental medicine who provides, or contemplates providing, herbal therapy:
(1) Shall perform an herbal therapy evaluation and, if appropriate, develop an appropriate treatment plan utilizing, in whole or in part, East Asian herbology modalities.
(2) Shall promptly refer a patient presenting with symptoms of a condition to a physician, dentist or podiatrist, as appropriate to the patient's condition, if the practitioner of Oriental medicine determines that further treatment of the patient by East Asian herbology modalities is contraindicated for the patient, may interfere with known drugs prescribed to the patient or determines that the patient's symptoms have worsened.
(3) Shall wear a tag or badge with lettering clearly visible to the patient bearing the licensee's name, as well as the title ''Practitioner of Oriental Medicine.'' The use of the words doctor, physician or any title or abbreviation implying licensure as a physician on this tag or badge is prohibited.
(c) Responsibilities to patient and public—acupuncturist who is currently licensed as a medical doctor. An acupuncturist who also holds a current and active license as a medical doctor in this Commonwealth:
(1) Shall include in the patient's medical records evidence of having performed an acupuncture evaluation and development of an acupuncture treatment plan for patients considered for, or who receive, acupuncture services.
(2) Shall comply strictly with sterilization standards relative to aseptic practices when providing acupuncture services to patients.
§ 18.15a. Scope of practice of acupuncturists and practitioners of Oriental medicine.
(a) An acupuncturist may practice acupuncture and use supplemental techniques, including the use of non-prescription topical remedies which contain as active ingredients parts of plants, minerals and other organic materials, but may not use herbal therapy as defined in § 18.11 (relating to definitions) unless licensed by the Board as a practitioner of Oriental medicine.
(b) A practitioner of Oriental medicine may practice acupuncture and use supplemental techniques including herbal therapy. A practitioner of Oriental medicine is not prohibited from dispensing or administering therapeutic herbs that contain ingredients that are similar or equivalent to active ingredients in drugs as classified by the Federal Food and Drug Administration, unless otherwise prohibited by law or regulation.
(c) This [subsection] section does not limit the scope of practice of a medical doctor who is [registered] licensed as an acupuncturist.
§ 18.18. Disciplinary and corrective measures.
(a) The Board may [refuse, revoke, suspend, limit or attach conditions to the license of an acupuncturist or practitioner of Oriental medicine for engaging] impose any of the disciplinary sanctions authorized under section 42 of the Act (63 P.S. § 422.42) or 63 Pa.C.S. § 3108(b) (relating to civil penalties) for any of the following:
(1) Failing to comply with the duties and requirements in § 18.15 (relating to practice responsibilities of acupuncturist and practitioner of Oriental medicine who is not a physician; practice responsibilities of medical doctor licensed as an acupuncturist).
(2) Practicing or holding out as being able to practice acupuncture without a current and valid license to practice acupuncture.
(3) Practicing or holding out as being able to practice East Asian herbology without a current and valid license as a practitioner of Oriental medicine.
(4) Practicing acupuncture or East Asian herbology without current professional liability insurance coverage as required under section 3.2 of the Acupuncture Licensure Act (63 P.S. § 1803.2).
(5) Engaging in conduct prohibited under section 41 of the Act (63 P.S. § 422.41) for Board-regulated practitioners.
(b) The Board will order the emergency suspension of the license of an acupuncturist or practitioner of Oriental medicine who presents an immediate and clear danger to the public health and safety, as required under section 40 of the Act (63 P.S. § 422.40).
(c) The license of an acupuncturist or practitioner of Oriental medicine shall automatically be suspended, as required under section 40 of the Act .
(Editor's Note: The following section is proposed to be added and is printed in regular type to enhance readability.)
§ 18.20. Professional liability insurance coverage for acupuncturists and practitioners of Oriental medicine.
(a) A licensed acupuncturist shall maintain a level of professional liability insurance coverage in the minimum amount of $1 million per occurrence or claims made, as required under section 3.2 of the Acupuncture Licensure Act (63 P.S. § 1803.2).
(b) Proof of professional liability insurance coverage may include:
(1) A certificate of insurance or copy of the declaration page from a personally purchased professional liability insurance policy setting forth the effective date, expiration date and dollar amount of coverage.
(2) A certificate of insurance or copy of the declaration page from an employer purchased professional liability insurance policy describing the licensee by name as a covered party under the policy, the effective date, expiration date and dollar amount of coverage.
(3) Evidence of a plan of self-insurance approved by the Insurance Commissioner of the Commonwealth under regulations of the Insurance Department in 31 Pa. Code Chapter 243 (relating to medical malpractice and health-related self-insurance plans).
(c) A licensee who does not have current professional liability insurance coverage as required under section 3.2 of the Acupuncture Licensure Act may not practice as an acupuncturist or as a practitioner of Oriental medicine in this Commonwealth.
(d) The professional liability insurance coverage for a licensed practitioner of Oriental medicine shall cover claims related to acupuncture as well as claims related to the provision of herbal therapy.
[Pa.B. Doc. No. 22-232. Filed for public inspection February 11, 2022, 9:00 a.m.]
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