As Introduced

128th General Assembly Regular Session 2009-2010

S. B. No. 265

Senator Schuring 

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A BILL

To amend sections 4762.01, 4762.03, 4762.05, 4762.06,

1

4762.08, 4762.10, 4762.13, 4762.131, and 4762.19

2

and to enact section 4762.041 of the Revised Code

3

to allow acupuncturists to practice with herbs.

4

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 4762.01, 4762.03, 4762.05, 4762.06,	5
4762.08, 4762.10, 4762.13, 4762.131, and 4762.19 be amended and	6
section 4762.041 of the Revised Code be enacted to read as	7
follows:	8

Sec. 4762.01.  As used in this chapter:

9

(A) "Acupuncture" means a form of health care performed by	10
the insertion and removal of specialized needles, with or without	11
the application of moxibustion or electrical stimulation, to	12
specific areas of the human body.	13

(B) "Certificate endorsement" means the designation issued by	14
the state medical board and included on a certificate to practice	15
as an acupuncturist issued under this chapter demonstrating the	16
board's determination that the certificate holder has met the	17
requirements specified in section 4762.041 of the Revised Code and	18
is authorized to include the following, as applicable, in the	19
practice of acupuncture:	20

(1) The use of patent herbs, in the case of a person who has	21
met the requirements specified in division (A)(1) or (2) of	22
section 4762.041 of the Revised Code;	23

(2) The use of materia medica, in the case of a person who	24
has met the requirements specified in division (A)(3) of section	25
4762.041 of the Revised Code.	26

(C) "Chiropractor" means an individual licensed under Chapter	27
4734. of the Revised Code to engage in the practice of	28
chiropractic.	29

(C)(D)(1) "Materia medica" means herbs, including patent	30
herbs; vitamins; minerals; organ extracts; homeopathics; or	31
physiologic materials, any of which are used for energetic or	32
physiologic therapy and in accordance with both of the following:	33

(a) Traditional or modern oriental medicine theory;

34

(b) Standards for oriental medicine or Chinese herbology, as	35
those standards are established by the national certification	36
commission for acupuncture and oriental medicine.	37

(2) The use of "materia medica" includes recommending,	38
advising, or furnishing nonfraudulent information about herbs,	39
vitamins, amino acids, carbohydrates, sugars, enzymes, food	40
concentrates, food, food supplements, or dietary supplements.	41

(E) "Moxibustion" means the use of an herbal heat source on	42
one or more acupuncture points.	43

(D)(F) "Patent herb" means an herb that is manufactured in	44
the form of a pill, capsule, or tincture.	45

(G) "Physician" means an individual authorized under Chapter	46
4731. of the Revised Code to practice medicine and surgery,	47
osteopathic medicine and surgery, or podiatry.	48

Sec. 4762.03.  (A) An individual seeking a certificate to	49
practice as an acupuncturist shall file with the state medical	50
board a written application on a form prescribed and supplied by	51
the board. The application shall include all of the following:	52

(1) Evidence satisfactory to the board that the applicant is	53
at least eighteen years of age and of good moral character;	54

(2) Evidence satisfactory to the board that the applicant has	55
been designated as a diplomate in acupuncture byholds a current	56
and active designation from the national certification commission	57
for acupuncture and oriental medicine and that the designation is	58
current and active;as a diplomate in acupuncture or a diplomate	59
in oriental medicine.	60

(3) Any other information the board requires.

61

(B) The board shall review all applications received under	62
this section. The board shall determine whether an applicant meets	63
the requirements to receive a certificate to practice not later	64
than sixty days after receiving a complete application. The	65
affirmative vote of not fewer than six members of the board is	66
required to determine that an applicant meets the requirements for	67
a certificate.	68

(C) At the time of making application for a certificate to	69
practice, the applicant shall pay the board a fee of one hundred	70
dollars, no part of which shall be returned.	71

Sec. 4762.041. (A)(1) In the case of a person who holds a	72
certificate to practice as an acupuncturist issued under this	73
chapter on or before the effective date of this section, the	74
person may apply to the state medical board for a certificate	75
endorsement to include the use of patent herbs in the practice of	76
acupuncture.	77

To be eligible for the certificate endorsement, the person's	78
application shall include evidence of both of the following:	79

(a) That the person holds a certificate to practice as an	80
acupuncturist and it is in good standing;	81

(b) That the person has successfully completed both of the	82
following through either an acupuncture education program	83
accredited by the accreditation commission for acupuncture and	84
oriental medicine or a continuing education study program approved	85
by the national certification commission for acupuncture and	86
oriental medicine:	87

(i) At least one hundred hours of classroom study;

88

(ii) In addition to the classroom study specified in division	89
(A)(1)(b)(i) of this section, at least one fifteen-hour class in	90
herb and drug interactions and contraindications.	91

(2) In the case of a person who was enrolled in a program of	92
study at a school accredited by the accreditation commission for	93
acupuncture and oriental medicine not more than six months prior	94
to the effective date of this section, but during that time did	95
not complete the coursework necessary to obtain designation as a	96
diplomate in Chinese herbology or oriental medicine from the	97
national certification commission for acupuncture and oriental	98
medicine, the person may apply for a certificate endorsement to	99
include the use of patent herbs in the practice of acupuncture by	100
meeting the same educational requirements that an applicant must	101
meet under division (A)(1)(b) of this section. The application may	102
be submitted after receiving a certificate to practice as an	103
acupuncturist or at the time of applying for a certificate to	104
practice as an acupuncturist.	105

To be eligible for the certificate endorsement, the person's	106
application shall include evidence of the following:	107

(a) If applicable, that the person holds a certificate to	108
practice as an acupuncturist and it is in good standing;	109

(b) That the person has successfully completed the	110
educational requirements specified in division (A)(1)(b) of this	111
section.	112

(3) In the case of a person to whom division (A)(1) or (2) of	113
this section does not apply, the person may apply for a	114
certificate endorsement to include the use of materia medica in	115
the practice of acupuncture. The application may be submitted	116
after receiving a certificate to practice as an acupuncturist or	117
at the time of applying for a certificate to practice as an	118
acupuncturist.	119

To be eligible for the endorsement, the person's application	120
shall include evidence of the following:	121

(a) If applicable, that the person holds a certificate to	122
practice as an acupuncturist and it is in good standing;	123

(b) That the person has obtained designation as a diplomate	124
in Chinese herbology or oriental medicine from the national	125
certification commission for acupuncture and oriental medicine and	126
the designation is current and valid.	127

(B) If the board determines that an applicant meets the	128
applicable requirements specified in division (A) of this section,	129
the board shall issue to the applicant the appropriate certificate	130
endorsement to include the use of patent herbs or materia medica	131
in the practice of acupuncture. If necessary, the board shall	132
issue to the applicant a new certificate to practice as an	133
acupuncturist.	134

If an applicant applies for an initial certificate	135
endorsement at the time of applying under section 4762.03 of the	136
Revised Code for an initial certificate to practice or under	137
section 4762.06 of the Revised Code for renewal of a certificate	138
to practice, the board shall not charge a fee for issuing the	139
endorsement. If the applicant applies for an initial certificate	140
endorsement at any other time, the board shall charge a fee for	141
issuing the endorsement that is the same amount as the fee for	142
issuing a duplicate certificate under section 4762.05 of the	143
Revised Code.	144

(C) A certificate endorsement shall expire biennially and may	145
be renewed in accordance with section 4762.06 of the Revised Code.	146

Sec. 4762.05.  Upon application by the holder of a	147
certificate to practice as an acupuncturist, the state medical	148
board shall issue a duplicate certificate to practice to replace	149
one that is missing or damaged, to reflect a name change, to	150
include a certificate endorsement issued under section 4762.041 of	151
the Revised Code, or for any other reasonable cause. The fee for a	152
duplicate certificate is thirty-five dollars.	153

Sec. 4762.06.  (A) A person seeking to renew a certificate to	154
practice as an acupuncturist shall, on or before the thirty-first	155
day of January of each even-numbered year, apply for renewal of	156
the certificate. If a person seeks to renew a certificate	157
endorsement issued under section 4762.041 of the Revised Code, the	158
person shall apply for renewal of the endorsement with the	159
certificate renewal application. The state medical board shall	160
send certificate renewal notices at least one month prior to the	161
expiration date. If applicable, the board shall include in the	162
certificate renewal notice a notice to renew the certificate	163
holder's certificate endorsement.	164

Applications shall be submitted to the board on forms the	165
board shall prescribe and supply. Each application shall be	166
accompanied by a biennial renewal fee of one hundred dollars.	167

The applicant shall report any criminal offense that	168
constitutes grounds for refusing to issue a certificate under	169
section 4762.13 of the Revised Code to which the applicant has	170
pleaded guilty, of which the applicant has been found guilty, or	171
for which the applicant has been found eligible for intervention	172
in lieu of conviction, since last signing an application for a	173
certificate to practice as an acupuncturist.	174

(B) To be eligible for renewal of a certificate to practice,	175
an acupuncturistthe applicant must certify to the board that the	176
acupuncturistapplicant has maintained the acupuncturist's	177
designation as a diplomate in acupuncture or oriental medicine, as	178
applicable, by the national certification commission for	179
acupuncture and oriental medicine.	180

To be eligible for renewal of a certificate endorsement, the	181
applicant must certify to the board that the applicant has	182
successfully completed one six-hour course in herb and drug	183
interaction approved by the national certification commission for	184
acupuncture and oriental medicine in the six years immediately	185
preceding the certificate endorsement expiration date.	186

(C) If an applicant submits a complete renewal application	187
and qualifies for renewal pursuant to division (B) of this	188
section, the board shall issue to the applicant a renewed	189
certificate to practice as an acupuncturistand, if applicable,	190
include the renewed certificate endorsement on the certificate.	191

(D) A certificate to practice that is not renewed on or	192
before its expiration date is automatically suspended on its	193
expiration date. If a certificate has been suspended pursuant to	194
this division for two years or less, the board shall reinstate the	195
certificate upon an applicant's submission of a renewal	196
application, the biennial renewal fee, and the applicable monetary	197
penalty. The penalty for reinstatement is twenty-five dollars. If	198

A certificate endorsement that is not renewed on or before	199
its expiration date is automatically suspended on its expiration	200
date. The board shall reinstate the endorsement upon an	201
applicant's submission of a renewal application and payment of a	202
monetary penalty of twenty-five dollars. A certificate to practice	203
renewed in accordance with this section shall not be invalidated	204
if the certificate holder does not renew an endorsement in	205
accordance with this section.	206

If a certificate has been suspended pursuant to this division	207
for more than two years, it may be restored upon an applicant's	208
submission of a restoration application, the biennial registration	209
fee, and the applicable monetary penalty and compliance with	210
sections 4776.01 to 4776.04 of the Revised Code. The board shall	211
not restore a certificate to practice unless the board, in its	212
discretion, decides that the results of the criminal records check	213
do not make the applicant ineligible for a certificate issued	214
pursuant to section 4762.04 of the Revised Code. The penalty for	215
restoration is fifty dollars.	216

Sec. 4762.08. (A) A person who holds a certificate to	217
practice as an acupuncturist issued under this chapter may use the	218
following titles, initials, or abbreviations, or the equivalent of	219
such titles, initials, or abbreviations, to identify the person as	220
an acupuncturist: "Acupuncturist," "Licensed Acupuncturist,"	221
"L.Ac.," "Diplomate of Acupuncture (NCCAOM)," "Dipl. Ac.	222
(NCCAOM)," "Diplomate of Oriental Medicine (NCCAOM)," or "National	223
Board Certified in Acupuncture (NCCAOM)." TheExcept as provided	224
in division (B) of this section, the person shall not use other	225
titles, initials, or abbreviations in conjunction with the	226
person's practice of acupuncture, including the title "doctor."	227

(B) A person who obtains a certificate endorsement under	228
division (A)(1) or (2) of section 4762.041 of the Revised Code to	229
include the use of patent herbs in the practice of acupuncture may	230
use the phrase "Endorsed by the state of Ohio to practice with	231
patent herbs" in conjunction with any of the titles, initials, or	232
abbreviations specified in division (A) of this section.	233

A person who obtains a certificate endorsement under division	234
(A)(3) of section 4762.041 of the Revised Code to include the use	235
of materia medica in the practice of acupuncture may use the	236
phrase "Endorsed by the state of Ohio to practice with materia	237
medica" in conjunction with any of the titles, initials, or	238
abbreviations specified in division (A) of this section. The	239
person may also use the title "Diplomate of Chinese Herbology	240
(NCCAOM)" or an equivalent title, initial, or abbreviation to	241
identify the person as a Chinese herbologist.	242

Sec. 4762.10.  (A) As used in this section, "disciplinary	243
action" means an action taken by the state medical board pursuant	244
to section 4762.13 of the Revised Code.	245

(B) The practice of an acupuncturist is subject to a	246
supervisory period if either of the following applies:	247

(1) Except as otherwise provided in division (B)(1) of this	248
section, if an acupuncturist practicing on the effective date of	249
this amendmentAugust 22, 2008, has practiced for less than one	250
year and is not subject to any disciplinary action, supervision	251
shall be for a period beginning on the effective date of this	252
amendmentAugust 22, 2008, and ending when the acupuncturist has	253
practiced for one year from the date the initial certificate was	254
granted. If the acupuncturist is subject to disciplinary action	255
during that period, the supervision shall continue until the	256
acupuncturist has not been subject to any disciplinary action for	257
one year.	258

(2) Except as otherwise provided in division (B)(2) of this	259
section, if an acupuncturist is granted an initial certificate to	260
practice on or after the effective date of this amendmentAugust	261
22, 2008, the supervisory period shall begin on the date the	262
certificate is granted and end one year thereafter. If the	263
acupuncturist is subject to disciplinary action during that year,	264
the supervision shall continue until the acupuncturist has not	265
been subject to any disciplinary action for one year.	266

(C) During an acupuncturist's supervisory period, both of the	267
following apply to the acupuncturist's practice in addition to the	268
requirements of division (E) of this section:	269

(1) The acupuncturist shall perform acupuncture for a patient	270
only if the patient has received a written referral or	271
prescription for acupuncture from a physician or chiropractor. As	272
specified in the referral or prescription, the acupuncturist shall	273
provide reports to the physician or chiropractor on the patient's	274
condition or progress in treatment and comply with the conditions	275
or restrictions on the acupuncturist's course of treatment.	276

(2) The acupuncturist shall perform acupuncture under the	277
general supervision of the patient's referring or prescribing	278
physician or chiropractor. General supervision does not require	279
that the acupuncturist and physician or chiropractor practice in	280
the same office.	281

(D) After an acupuncturist's supervisory period has ended,	282
both of the following apply to the acupuncturist's practice in	283
addition to the applicable requirements of division (E) of this	284
section:	285

(1) Before treating a patient for a particular condition, the	286
acupuncturist shall confirm whether the patient has undergone	287
within the past six months a diagnostic examination that was	288
related to the condition for which the patient is seeking	289
acupuncture and was performed by a physician or chiropractor	290
acting within the physicianphysician's or chiropractor's scope of	291
practice. Confirmation that the diagnostic examination was	292
performed may be made by obtaining from the patient a signed form	293
stating that the patient has undergone the examination.	294

(2) If the patient does not provide the signed form specified	295
in division (D)(1) of this section or the acupuncturist otherwise	296
determines that the patient has not undergone the diagnostic	297
examination specified in that division, the acupuncturist shall	298
provide to the patient a written recommendation to undergo a	299
diagnostic examination by a physician or chiropractor.	300

(E) In the practice of acupuncture pursuant to a certificate	301
to practice issued under this chapter, all of the following apply:	302

(1) Prior to treating a patient, the acupuncturist shall	303
advise the patient that acupuncture is not a substitute for	304
conventional medical diagnosis and treatment.	305

(2) On initially meeting a patient in person, the	306
acupuncturist shall provide in writing the acupuncturist's name,	307
business address, and business telephone number, and information	308
on acupuncture, including the techniques that are used.	309

(3) While treating a patient, the acupuncturist shall not	310
make a diagnosis. If a patient's condition is not improving or a	311
patient requires emergency medical treatment, the acupuncturist	312
shall consult promptly with a physician.	313

(4) The acupuncturist shall maintain records for each patient	314
treated. The records shall be confidential and shall be retained	315
for not less than three years following termination of treatment.	316

During an acupuncturist's supervisory period, the	317
acupuncturist shall include in a patient's records the written	318
referral or prescription pursuant to which the acupuncturist is	319
treating the patient.	320

Sec. 4762.13.  (A) The state medical board, by an affirmative	321
vote of not fewer than six members, may revoke or may refuse to	322
grant a certificate to practice as an acupuncturist to a person	323
found by the board to have committed fraud, misrepresentation, or	324
deception in applying for or securing the certificate.	325

(B) The board, by an affirmative vote of not fewer than six	326
members, shall, to the extent permitted by law, limit, revoke, or	327
suspend an individual's certificate to practice as an	328
acupuncturist, refuse to issue a certificate to an applicant,	329
refuse to reinstate a certificate, or reprimand or place on	330
probation the holder of a certificate for any of the following	331
reasons:	332

(1) Permitting the holder's name or certificate to be used by	333
another person;	334

(2) Failure to comply with the requirements of this chapter,	335
Chapter 4731. of the Revised Code, or any rules adopted by the	336
board;	337

(3) Violating or attempting to violate, directly or	338
indirectly, or assisting in or abetting the violation of, or	339
conspiring to violate, any provision of this chapter, Chapter	340
4731. of the Revised Code, or the rules adopted by the board;	341

(4) A departure from, or failure to conform to, minimal	342
standards of care of similar practitioners under the same or	343
similar circumstances whether or not actual injury to the patient	344
is established;	345

(5) Inability to practice according to acceptable and	346
prevailing standards of care by reason of mental illness or	347
physical illness, including physical deterioration that adversely	348
affects cognitive, motor, or perceptive skills;	349

(6) Impairment of ability to practice according to acceptable	350
and prevailing standards of care because of habitual or excessive	351
use or abuse of drugs, alcohol, or other substances that impair	352
ability to practice;	353

(7) Willfully betraying a professional confidence;

354

(8) Making a false, fraudulent, deceptive, or misleading	355
statement in soliciting or advertising for patients or in securing	356
or attempting to secure a certificate to practice as an	357
acupuncturist.	358

As used in this division, "false, fraudulent, deceptive, or	359
misleading statement" means a statement that includes a	360
misrepresentation of fact, is likely to mislead or deceive because	361
of a failure to disclose material facts, is intended or is likely	362
to create false or unjustified expectations of favorable results,	363
or includes representations or implications that in reasonable	364
probability will cause an ordinarily prudent person to	365
misunderstand or be deceived.	366

(9) Representing, with the purpose of obtaining compensation	367
or other advantage personally or for any other person, that an	368
incurable disease or injury, or other incurable condition, can be	369
permanently cured;	370

(10) The obtaining of, or attempting to obtain, money or a	371
thing of value by fraudulent misrepresentations in the course of	372
practice;	373

(11) A plea of guilty to, a judicial finding of guilt of, or	374
a judicial finding of eligibility for intervention in lieu of	375
conviction for, a felony;	376

(12) Commission of an act that constitutes a felony in this	377
state, regardless of the jurisdiction in which the act was	378
committed;	379

(13) A plea of guilty to, a judicial finding of guilt of, or	380
a judicial finding of eligibility for intervention in lieu of	381
conviction for, a misdemeanor committed in the course of practice;	382

(14) A plea of guilty to, a judicial finding of guilt of, or	383
a judicial finding of eligibility for intervention in lieu of	384
conviction for, a misdemeanor involving moral turpitude;	385

(15) Commission of an act in the course of practice that	386
constitutes a misdemeanor in this state, regardless of the	387
jurisdiction in which the act was committed;	388

(16) Commission of an act involving moral turpitude that	389
constitutes a misdemeanor in this state, regardless of the	390
jurisdiction in which the act was committed;	391

(17) A plea of guilty to, a judicial finding of guilt of, or	392
a judicial finding of eligibility for intervention in lieu of	393
conviction for violating any state or federal law regulating the	394
possession, distribution, or use of any drug, including	395
trafficking in drugs;	396

(18) Any of the following actions taken by the state agency	397
responsible for regulating the practice of acupuncture in another	398
jurisdiction, for any reason other than the nonpayment of fees:	399
the limitation, revocation, or suspension of an individual's	400
license to practice; acceptance of an individual's license	401
surrender; denial of a license; refusal to renew or reinstate a	402
license; imposition of probation; or issuance of an order of	403
censure or other reprimand;	404

(19) Violation of the conditions placed by the board on a	405
certificate to practice as an acupuncturist;	406

(20) Failure to use universal blood and body fluid	407
precautions established by rules adopted under section 4731.051 of	408
the Revised Code;	409

(21) Failure to cooperate in an investigation conducted by	410
the board under section 4762.14 of the Revised Code, including	411
failure to comply with a subpoena or order issued by the board or	412
failure to answer truthfully a question presented by the board at	413
a deposition or in written interrogatories, except that failure to	414
cooperate with an investigation shall not constitute grounds for	415
discipline under this section if a court of competent jurisdiction	416
has issued an order that either quashes a subpoena or permits the	417
individual to withhold the testimony or evidence in issue;	418

(22) Failure to comply with the standards of the national	419
certification commission for acupuncture and oriental medicine	420
regarding professional ethics, commitment to patients, commitment	421
to the profession, and commitment to the public;	422

(23) Failure to have adequate professional liability	423
insurance coverage in accordance with section 4762.22 of the	424
Revised Code;	425

(24) Practicing acupuncture by including the use of patent	426
herbs or materia medica without obtaining the applicable	427
certificate endorsement under section 4762.041 of the Revised	428
Code.	429

(C) Disciplinary actions taken by the board under divisions	430
(A) and (B) of this section shall be taken pursuant to an	431
adjudication under Chapter 119. of the Revised Code, except that	432
in lieu of an adjudication, the board may enter into a consent	433
agreement with an acupuncturist or applicant to resolve an	434
allegation of a violation of this chapter or any rule adopted	435
under it. A consent agreement, when ratified by an affirmative	436
vote of not fewer than six members of the board, shall constitute	437
the findings and order of the board with respect to the matter	438
addressed in the agreement. If the board refuses to ratify a	439
consent agreement, the admissions and findings contained in the	440
consent agreement shall be of no force or effect.	441

(D) For purposes of divisions (B)(12), (15), and (16) of this	442
section, the commission of the act may be established by a finding	443
by the board, pursuant to an adjudication under Chapter 119. of	444
the Revised Code, that the applicant or certificate holder	445
committed the act in question. The board shall have no	446
jurisdiction under these divisions in cases where the trial court	447
renders a final judgment in the certificate holder's favor and	448
that judgment is based upon an adjudication on the merits. The	449
board shall have jurisdiction under these divisions in cases where	450
the trial court issues an order of dismissal upon technical or	451
procedural grounds.	452

(E) The sealing of conviction records by any court shall have	453
no effect upon a prior board order entered under the provisions of	454
this section or upon the board's jurisdiction to take action under	455
the provisions of this section if, based upon a plea of guilty, a	456
judicial finding of guilt, or a judicial finding of eligibility	457
for intervention in lieu of conviction, the board issued a notice	458
of opportunity for a hearing prior to the court's order to seal	459
the records. The board shall not be required to seal, destroy,	460
redact, or otherwise modify its records to reflect the court's	461
sealing of conviction records.	462

(F) For purposes of this division, any individual who holds a	463
certificate to practice issued under this chapter, or applies for	464
a certificate to practice, shall be deemed to have given consent	465
to submit to a mental or physical examination when directed to do	466
so in writing by the board and to have waived all objections to	467
the admissibility of testimony or examination reports that	468
constitute a privileged communication.	469

(1) In enforcing division (B)(5) of this section, the board,	470
upon a showing of a possible violation, may compel any individual	471
who holds a certificate to practice issued under this chapter or	472
who has applied for a certificate pursuant to this chapter to	473
submit to a mental examination, physical examination, including an	474
HIV test, or both a mental and physical examination. The expense	475
of the examination is the responsibility of the individual	476
compelled to be examined. Failure to submit to a mental or	477
physical examination or consent to an HIV test ordered by the	478
board constitutes an admission of the allegations against the	479
individual unless the failure is due to circumstances beyond the	480
individual's control, and a default and final order may be entered	481
without the taking of testimony or presentation of evidence. If	482
the board finds an acupuncturist unable to practice because of the	483
reasons set forth in division (B)(5) of this section, the board	484
shall require the acupuncturist to submit to care, counseling, or	485
treatment by physicians approved or designated by the board, as a	486
condition for an initial, continued, reinstated, or renewed	487
certificate to practice. An individual affected by this division	488
shall be afforded an opportunity to demonstrate to the board the	489
ability to resume practicing in compliance with acceptable and	490
prevailing standards of care.	491

(2) For purposes of division (B)(6) of this section, if the	492
board has reason to believe that any individual who holds a	493
certificate to practice issued under this chapter or any applicant	494
for a certificate suffers such impairment, the board may compel	495
the individual to submit to a mental or physical examination, or	496
both. The expense of the examination is the responsibility of the	497
individual compelled to be examined. Any mental or physical	498
examination required under this division shall be undertaken by a	499
treatment provider or physician qualified to conduct such	500
examination and chosen by the board.	501

Failure to submit to a mental or physical examination ordered	502
by the board constitutes an admission of the allegations against	503
the individual unless the failure is due to circumstances beyond	504
the individual's control, and a default and final order may be	505
entered without the taking of testimony or presentation of	506
evidence. If the board determines that the individual's ability to	507
practice is impaired, the board shall suspend the individual's	508
certificate or deny the individual's application and shall require	509
the individual, as a condition for an initial, continued,	510
reinstated, or renewed certificate, to submit to treatment.	511

Before being eligible to apply for reinstatement of a	512
certificate suspended under this division, the acupuncturist shall	513
demonstrate to the board the ability to resume practice in	514
compliance with acceptable and prevailing standards of care. The	515
demonstration shall include the following:	516

(a) Certification from a treatment provider approved under	517
section 4731.25 of the Revised Code that the individual has	518
successfully completed any required inpatient treatment;	519

(b) Evidence of continuing full compliance with an aftercare	520
contract or consent agreement;	521

(c) Two written reports indicating that the individual's	522
ability to practice has been assessed and that the individual has	523
been found capable of practicing according to acceptable and	524
prevailing standards of care. The reports shall be made by	525
individuals or providers approved by the board for making such	526
assessments and shall describe the basis for their determination.	527

The board may reinstate a certificate suspended under this	528
division after such demonstration and after the individual has	529
entered into a written consent agreement.	530

When the impaired acupuncturist resumes practice, the board	531
shall require continued monitoring of the acupuncturist. The	532
monitoring shall include monitoring of compliance with the written	533
consent agreement entered into before reinstatement or with	534
conditions imposed by board order after a hearing, and, upon	535
termination of the consent agreement, submission to the board for	536
at least two years of annual written progress reports made under	537
penalty of falsification stating whether the acupuncturist has	538
maintained sobriety.	539

(G) If the board's secretary and supervising member determine	540
that there is clear and convincing evidence that an acupuncturist	541
has violated division (B) of this section and that the	542
individual's continued practice presents a danger of immediate and	543
serious harm to the public, they may recommend that the board	544
suspend the individual's certificate to practice without a prior	545
hearing. Written allegations shall be prepared for consideration	546
by the board.	547

The board, upon review of the allegations and by an	548
affirmative vote of not fewer than six of its members, excluding	549
the secretary and supervising member, may suspend a certificate	550
without a prior hearing. A telephone conference call may be	551
utilized for reviewing the allegations and taking the vote on the	552
summary suspension.	553

The board shall issue a written order of suspension by	554
certified mail or in person in accordance with section 119.07 of	555
the Revised Code. The order shall not be subject to suspension by	556
the court during pendency of any appeal filed under section 119.12	557
of the Revised Code. If the acupuncturist requests an adjudicatory	558
hearing by the board, the date set for the hearing shall be within	559
fifteen days, but not earlier than seven days, after the	560
acupuncturist requests the hearing, unless otherwise agreed to by	561
both the board and the certificate holder.	562

A summary suspension imposed under this division shall remain	563
in effect, unless reversed on appeal, until a final adjudicative	564
order issued by the board pursuant to this section and Chapter	565
119. of the Revised Code becomes effective. The board shall issue	566
its final adjudicative order within sixty days after completion of	567
its hearing. Failure to issue the order within sixty days shall	568
result in dissolution of the summary suspension order, but shall	569
not invalidate any subsequent, final adjudicative order.	570

(H) If the board takes action under division (B)(11), (13),	571
or (14) of this section, and the judicial finding of guilt, guilty	572
plea, or judicial finding of eligibility for intervention in lieu	573
of conviction is overturned on appeal, upon exhaustion of the	574
criminal appeal, a petition for reconsideration of the order may	575
be filed with the board along with appropriate court documents.	576
Upon receipt of a petition and supporting court documents, the	577
board shall reinstate the certificate to practice. The board may	578
then hold an adjudication under Chapter 119. of the Revised Code	579
to determine whether the individual committed the act in question.	580
Notice of opportunity for hearing shall be given in accordance	581
with Chapter 119. of the Revised Code. If the board finds,	582
pursuant to an adjudication held under this division, that the	583
individual committed the act, or if no hearing is requested, it	584
may order any of the sanctions specified in division (B) of this	585
section.	586

(I) The certificate to practice of an acupuncturist and the	587
acupuncturist's practice in this state are automatically suspended	588
as of the date the acupuncturist pleads guilty to, is found by a	589
judge or jury to be guilty of, or is subject to a judicial finding	590
of eligibility for intervention in lieu of conviction in this	591
state or treatment or intervention in lieu of conviction in	592
another jurisdiction for any of the following criminal offenses in	593
this state or a substantially equivalent criminal offense in	594
another jurisdiction: aggravated murder, murder, voluntary	595
manslaughter, felonious assault, kidnapping, rape, sexual battery,	596
gross sexual imposition, aggravated arson, aggravated robbery, or	597
aggravated burglary. Continued practice after the suspension shall	598
be considered practicing without a certificate.	599

The board shall notify the individual subject to the	600
suspension by certified mail or in person in accordance with	601
section 119.07 of the Revised Code. If an individual whose	602
certificate is suspended under this division fails to make a	603
timely request for an adjudication under Chapter 119. of the	604
Revised Code, the board shall enter a final order permanently	605
revoking the individual's certificate to practice.	606

(J) In any instance in which the board is required by Chapter	607
119. of the Revised Code to give notice of opportunity for hearing	608
and the individual subject to the notice does not timely request a	609
hearing in accordance with section 119.07 of the Revised Code, the	610
board is not required to hold a hearing, but may adopt, by an	611
affirmative vote of not fewer than six of its members, a final	612
order that contains the board's findings. In the final order, the	613
board may order any of the sanctions identified under division (A)	614
or (B) of this section.	615

(K) Any action taken by the board under division (B) of this	616
section resulting in a suspension shall be accompanied by a	617
written statement of the conditions under which the	618
acupuncturist's certificate to practice may be reinstated. The	619
board shall adopt rules in accordance with Chapter 119. of the	620
Revised Code governing conditions to be imposed for reinstatement.	621
Reinstatement of a certificate suspended pursuant to division (B)	622
of this section requires an affirmative vote of not fewer than six	623
members of the board.	624

(L) When the board refuses to grant a certificate to practice	625
as an acupuncturist to an applicant, revokes an individual's	626
certificate, refuses to renew a certificate, or refuses to	627
reinstate an individual's certificate, the board may specify that	628
its action is permanent. An individual subject to a permanent	629
action taken by the board is forever thereafter ineligible to hold	630
a certificate to practice as an acupuncturist and the board shall	631
not accept an application for reinstatement of the certificate or	632
for issuance of a new certificate.	633

(M) Notwithstanding any other provision of the Revised Code,	634
all of the following apply:	635

(1) The surrender of a certificate to practice as an	636
acupuncturist issued under this chapter is not effective unless or	637
until accepted by the board. Reinstatement of a certificate	638
surrendered to the board requires an affirmative vote of not fewer	639
than six members of the board.	640

(2) An application made under this chapter for a certificate	641
may not be withdrawn without approval of the board.	642

(3) Failure by an individual to renew a certificate in	643
accordance with section 4762.06 of the Revised Code shall not	644
remove or limit the board's jurisdiction to take disciplinary	645
action under this section against the individual.	646

Sec. 4762.131.  On receipt of a notice pursuant to section	647
2301.3733123.43 of the Revised Code, the state medical board	648
shall comply with that sectionsections 3123.41 to 3123.50 of the	649
Revised Code and any applicable rules adopted under section	650
3123.63 of the Revised Code with respect to a certificate to	651
practice as an acupuncturist issued pursuant to this chapter.	652

Sec. 4762.19.  The state medical board may adopt any rules	653
necessary to govern the practice of acupuncture, the use of	654
patent herbs or materia medica in the practice of acupuncture, the	655
supervisory relationship between acupuncturists and supervising	656
physicians, and the administration and enforcement of this	657
chapter. Rules adopted under this section shall be adopted in	658
accordance with Chapter 119. of the Revised Code.	659

Section 2.  That existing sections 4762.01, 4762.03, 4762.05,	660
4762.06, 4762.08, 4762.10, 4762.13, 4762.131, and 4762.19 of the	661
Revised Code are hereby repealed.	662