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The Florida Statutes

The 2011 Florida Statutes

Title XXXII
REGULATION OF PROFESSIONS AND OCCUPATIONS
Chapter 457
ACUPUNCTURE
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CHAPTER 457
CHAPTER 457
ACUPUNCTURE
457.101 Legislative intent.
457.102 Definitions.
457.103 Board of Acupuncture; membership; appointment and terms.
457.104 Rulemaking authority.
457.105 Licensure qualifications and fees.
457.107 Renewal of licenses; continuing education.
457.108 Inactive status; expiration; reactivation of licenses.
457.1085 Infection control.
457.109 Disciplinary actions; grounds; action by the board.
457.116 Prohibited acts; penalty.
457.118 Effect of chapter on other health care practices.
457.101 Legislative intent.The Legislature finds that the interests of the public health require the regulation of the practice of acupuncture in this state for the purpose of protecting the health, safety, and welfare of our citizens while making this healing art available to those who seek it.
History.ss. 1, 2, ch. 80-375; ss. 2, 3, ch. 81-318; ss. 1, 13, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429.
Note.Former s. 468.321.
457.102 Definitions.As used in this chapter:
(1) “Acupuncture” means a form of primary health care, based on traditional Chinese medical concepts and modern oriental medical techniques, that employs acupuncture diagnosis and treatment, as well as adjunctive therapies and diagnostic techniques, for the promotion, maintenance, and restoration of health and the prevention of disease. Acupuncture shall include, but not be limited to, the insertion of acupuncture needles and the application of moxibustion to specific areas of the human body and the use of electroacupuncture, Qi Gong, oriental massage, herbal therapy, dietary guidelines, and other adjunctive therapies, as defined by board rule.
(2) “Acupuncturist” means any person licensed as provided in this chapter to practice acupuncture as a primary health care provider.
(3) “Board” means the Board of Acupuncture.
(4) “License” means the document of authorization issued by the department for a person to engage in the practice of acupuncture.
(5) “Department” means the Department of Health.
(6) “Oriental medicine” means the use of acupuncture, electroacupuncture, Qi Gong, oriental massage, herbal therapy, dietary guidelines, and other adjunctive therapies.
(7) “Prescriptive rights” means the prescription, administration, and use of needles and devices, restricted devices, and prescription devices that are used in the practice of acupuncture and oriental medicine.
History.ss. 1, 2, ch. 80-375; ss. 2, 3, ch. 81-318; s. 38, ch. 83-329; ss. 2, 13, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 101, ch. 94-218; s. 6, ch. 97-264; s. 1, ch. 98-418; s. 90, ch. 99-397; s. 62, ch. 2000-318.
Note.Former s. 468.322.
457.103 Board of Acupuncture; membership; appointment and terms.
(1) The Board of Acupuncture is created within the department and shall consist of seven members, to be appointed by the Governor and confirmed by the Senate. Five members of the board must be licensed Florida acupuncturists. Two members must be laypersons who are not and who have never been acupuncturists or members of any closely related profession. Members shall be appointed for 4-year terms or for the remainder of the unexpired term of a vacancy.
(2) All provisions of chapter 456 relating to the board shall apply.
History.ss. 39, 118, ch. 83-329; ss. 3, 13, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 1, ch. 92-28; s. 102, ch. 94-218; s. 7, ch. 97-264; s. 40, ch. 98-166; s. 2, ch. 98-418; s. 100, ch. 2000-160.
457.104 Rulemaking authority.The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of this chapter conferring duties upon it.
History.ss. 40, 118, ch. 83-329; ss. 4, 13, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 119, ch. 98-200.
457.105 Licensure qualifications and fees.
(1) It is unlawful for any person to practice acupuncture in this state unless such person has been licensed by the board, is in a board-approved course of study, or is otherwise exempted by this chapter.
(2) A person may become licensed to practice acupuncture if the person applies to the department and:
(a) Is 21 years of age or older, has good moral character, and has the ability to communicate in English, which is demonstrated by having passed the national written examination in English or, if such examination was passed in a foreign language, by also having passed a nationally recognized English proficiency examination;
(b) Has completed 60 college credits from an accredited postsecondary institution as a prerequisite to enrollment in an authorized 3-year course of study in acupuncture and oriental medicine, and has completed a 3-year course of study in acupuncture and oriental medicine, and effective July 31, 2001, a 4-year course of study in acupuncture and oriental medicine, which meets standards established by the board by rule, which standards include, but are not limited to, successful completion of academic courses in western anatomy, western physiology, western pathology, western biomedical terminology, first aid, and cardiopulmonary resuscitation (CPR). However, any person who enrolled in an authorized course of study in acupuncture before August 1, 1997, must have completed only a 2-year course of study which meets standards established by the board by rule, which standards must include, but are not limited to, successful completion of academic courses in western anatomy, western physiology, and western pathology;
(c) Has successfully completed a board-approved national certification process, is actively licensed in a state that has examination requirements that are substantially equivalent to or more stringent than those of this state, or passes an examination administered by the department, which examination tests the applicant’s competency and knowledge of the practice of acupuncture and oriental medicine. At the request of any applicant, oriental nomenclature for the points shall be used in the examination. The examination shall include a practical examination of the knowledge and skills required to practice modern and traditional acupuncture and oriental medicine, covering diagnostic and treatment techniques and procedures; and
(d) Pays the required fees set by the board by rule not to exceed the following amounts:
1. Examination fee: $500 plus the actual per applicant cost to the department for purchase of the written and practical portions of the examination from a national organization approved by the board.
2. Application fee: $300.
3. Reexamination fee: $500 plus the actual per applicant cost to the department for purchase of the written and practical portions of the examination from a national organization approved by the board.
4. Initial biennial licensure fee: $400, if licensed in the first half of the biennium, and $200, if licensed in the second half of the biennium.
History.ss. 1, 2, ch. 80-375; ss. 1, 6, ch. 81-227; s. 334, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 1, 6, ch. 82-172; s. 41, ch. 83-329; ss. 5, 13, 14, ch. 86-265; s. 2, ch. 88-205; s. 16, ch. 89-162; s. 1, ch. 89-318; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 196, ch. 97-103; s. 8, ch. 97-264; s. 3, ch. 98-418; s. 63, ch. 2000-318.
Note.Former s. 468.323.
457.107 Renewal of licenses; continuing education.
(1) The department shall renew a license upon receipt of the renewal application and the required fee set by the board by rule, not to exceed $500.
(2) The department shall adopt rules establishing a procedure for the biennial renewal of licenses.
(3) The board shall by rule prescribe continuing education requirements, not to exceed 30 hours biennially, as a condition for renewal of a license. All education programs that contribute to the advancement, extension, or enhancement of professional skills and knowledge related to the practice of acupuncture, whether conducted by a nonprofit or profitmaking entity, are eligible for approval. The continuing professional education requirements must be in acupuncture or oriental medicine subjects, including, but not limited to, anatomy, biological sciences, adjunctive therapies, sanitation and sterilization, emergency protocols, and diseases. The board shall have the authority to set a fee, not to exceed $100, for each continuing education provider. The licensee shall retain in his or her records the certificates of completion of continuing professional education requirements to prove compliance with this subsection. The board may request such documentation without cause from applicants who are selected at random. All national and state acupuncture and oriental medicine organizations and acupuncture and oriental medicine schools are approved to provide continuing professional education in accordance with this subsection.
History.ss. 1, 2, ch. 80-375; ss. 2, 6, ch. 81-227; ss. 2, 3, ch. 81-318; s. 42, ch. 83-329; ss. 6, 13, 14, ch. 86-265; s. 3, ch. 88-205; s. 17, ch. 89-162; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 161, ch. 94-119; s. 9, ch. 97-264; s. 4, ch. 98-418; s. 64, ch. 2000-318; s. 7, ch. 2001-277.
Note.Former s. 468.324.
457.108 Inactive status; expiration; reactivation of licenses.
(1) A license that has become inactive may be reactivated under this section upon application to the department. The board shall prescribe by rule continuing education requirements as a condition of reactivating a license. The continuing education requirements for reactivating a license must not exceed 10 classroom hours for each year the license was inactive, in addition to completion of the number of hours required for renewal on the date the license became inactive.
(2) The board shall adopt rules relating to application procedures for inactive status, renewal of inactive licenses, and reactivation of licenses. The board shall prescribe by rule an application fee for inactive status, a renewal fee for inactive status, a delinquency fee, and a fee for the reactivation of a license. None of these fees may exceed the biennial renewal fee established by the board for an active license.
(3) The department shall not reactivate a license unless the inactive or delinquent licensee has paid any applicable biennial renewal or delinquency fee, or both, and a reactivation fee.
History.ss. 7, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 162, ch. 94-119; s. 10, ch. 97-264.
457.1085 Infection control.Prior to November 1, 1986, the board shall adopt rules relating to the prevention of infection, the safe disposal of any potentially infectious materials, and other requirements to protect the health, safety, and welfare of the public. Beginning October 1, 1997, all acupuncture needles that are to be used on a patient must be sterile and disposable, and each needle may be used only once.
History.ss. 8, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 11, ch. 97-264.
457.109 Disciplinary actions; grounds; action by the board.
(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(a) Attempting to obtain, obtaining, or renewing a license to practice acupuncture by bribery, by fraudulent misrepresentations, or through an error of the department.
(b) Having a license to practice acupuncture revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country.
(c) Being convicted or found guilty, regardless of adjudication, in any jurisdiction of a crime which directly relates to the practice of acupuncture or to the ability to practice acupuncture. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.
(d) False, deceptive, or misleading advertising or advertising which claims that acupuncture is useful in curing any disease.
(e) Advertising, practicing, or attempting to practice under a name other than one’s own.
(f) Failing to report to the department any person who the licensee knows is in violation of this chapter or of the rules of the department.
(g) Aiding, assisting, procuring, employing, or advising any unlicensed person to practice acupuncture contrary to this chapter or to a rule of the department.
(h) Failing to perform any statutory or legal obligation placed upon a licensed acupuncturist.
(i) Making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed acupuncturist.
(j) Exercising influence within a patient-acupuncturist relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her acupuncturist.
(k) Making deceptive, untrue, or fraudulent representations in the practice of acupuncture or employing a trick or scheme in the practice of acupuncture when such scheme or trick fails to conform to the generally prevailing standards of treatment in the community.
(l) Soliciting patients, either personally or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct. A solicitation is any communication which directly or implicitly requests an immediate oral response from the recipient.
(m) Failing to keep written medical records justifying the course of treatment of the patient.
(n) Exercising influence on the patient to exploit the patient for the financial gain of the licensee or of a third party.
(o) Being unable to practice acupuncture with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, upon a finding of the State Surgeon General or the State Surgeon General’s designee that probable cause exists to believe that the licensee is unable to serve as an acupuncturist due to the reasons stated in this paragraph, the department shall have the authority to issue an order to compel the licensee to submit to a mental or physical examination by a physician designated by the department. If the licensee refuses to comply with such order, the department’s order directing such examination may be enforced by filing a petition for enforcement in the circuit court where the licensee resides or serves as an acupuncturist. The licensee against whom the petition is filed shall not be named or identified by initials in any public court record or document, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in s. 51.011. An acupuncturist affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he or she can resume the competent practice of acupuncture with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the department shall be used against an acupuncturist in any other proceeding.
(p) Gross or repeated malpractice or the failure to practice acupuncture with that level of care, skill, and treatment which is recognized by a reasonably prudent similar acupuncturist as being acceptable under similar conditions and circumstances.
(q) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he or she is not competent to perform.
(r) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
(s) Violating a lawful order of the board previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
(t) Conspiring with another to commit an act, or committing an act, which would tend to coerce, intimidate, or preclude another licensee from lawfully advertising his or her services.
(u) Fraud or deceit or gross negligence, incompetence, or misconduct in the operation of a course of study.
(v) Failing to comply with state, county, or municipal regulations or reporting requirements relating to public health and the control of contagious and infectious diseases.
(w) Failing to comply with any rule of the board relating to health and safety, including, but not limited to, the sterilization of needles and equipment and the disposal of potentially infectious materials.
(x) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
(2) The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1).
(3) The department shall not reinstate the license of an acupuncturist, or cause a license to be issued to a person it has deemed to be unqualified, until such time as the board is satisfied that he or she has complied with all the terms and conditions set forth in the final order and is capable of safely engaging in the practice of acupuncture.
History.ss. 1, 2, ch. 80-375; ss. 4, 6, ch. 81-227; ss. 2, 3, ch. 81-318; s. 43, ch. 83-329; ss. 9, 13, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429; s. 197, ch. 97-103; s. 12, ch. 97-264; s. 17, ch. 2001-277; s. 2, ch. 2005-240; s. 68, ch. 2008-6.
Note.Former s. 468.325.
457.116 Prohibited acts; penalty.
(1) A person may not:
(a) Practice acupuncture unless the person is licensed under ss. 457.101-457.118;
(b) Use, in connection with his or her name or place of business, any title or description of services which incorporates the words “acupuncture,” “acupuncturist,” “certified acupuncturist,” “licensed acupuncturist,” “oriental medical practitioner”; the letters “L.Ac.,” “R.Ac.,” “A.P.,” or “D.O.M.”; or any other words, letters, abbreviations, or insignia indicating or implying that he or she practices acupuncture unless he or she is a holder of a valid license issued pursuant to ss. 457.101-457.118;
(c) Present as his or her own the license of another;
(d) Knowingly give false or forged evidence to the board or a member thereof;
(e) Use or attempt to use a license that has been suspended, revoked, or placed on inactive or delinquent status;
(f) Employ any person who is not licensed pursuant to ss. 457.101-457.118 to engage in the practice of acupuncture; or
(g) Conceal information relating to any violation of ss. 457.101-457.118.
(2) A person who violates this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.ss. 1, 2, ch. 80-375; ss. 2, 3, ch. 81-318; ss. 10, 13, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 85, ch. 91-224; s. 4, ch. 91-429; s. 198, ch. 97-103; s. 13, ch. 97-264; s. 5, ch. 98-418.
Note.Former s. 468.328.
457.118 Effect of chapter on other health care practices.This chapter shall not be construed to expand or limit the scope of practice authorized for any health care professional licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 466, chapter 474, or chapter 486, as such scope of practice is defined by statute or rule.
History.ss. 1, 2, ch. 80-375; s. 335, ch. 81-259; ss. 2, 3, ch. 81-318; ss. 4, 6, ch. 82-172; ss. 11, 13, 14, ch. 86-265; s. 57, ch. 91-137; s. 4, ch. 91-156; s. 4, ch. 91-429.
Note.Former s. 468.329.