*                                        

 

Assembly Bill No. 339–Committee on Commerce and Labor

 

March 13, 2001

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Revises provisions relating to practice of Oriental medicine. (BDR 54‑295)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to Oriental medicine; revising the provisions relating to the issuance of a license to practice acupuncture and Oriental medicine; authorizing the practice of herbal medicine under certain circumstances; restricting the use of the title “acupuncturist” without a license; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 634A of NRS is hereby amended by adding

1-2  thereto a new section to read as follows:

1-3    A person who has been issued a license to practice acupuncture and

1-4  Oriental medicine pursuant to NRS 634A.140 may practice herbal

1-5  medicine and use the designation “certified in Chinese herbology” if he

1-6  has submitted proof to the board that he has:

1-7    1.  Successfully completed a program of study in Chinese herbology

1-8  approved by the Accreditation Commission for Acupuncture and

1-9  Oriental Medicine; or

1-10    2.  Been certified in Chinese herbology by the National Certification

1-11  Commission for Acupuncture and Oriental Medicine.

1-12    Sec. 2.  NRS 634A.020 is hereby amended to read as follows:

1-13    634A.020  As used in this chapter, unless the context otherwise

1-14  requires:

1-15    1.  “Acupuncture” means the insertion of needles into the human body

1-16  by piercing the skin of the body to control and regulate the flow and

1-17  balance of energy in the body and to [cure, relieve or palliate:

1-18    (a) Any] treat any ailment or disease of the mind or body[; or

1-19    (b) Any] , or any wound, bodily injury or deformity. The term includes

1-20  the use of any therapy that uses manual, mechanical, thermal, electrical

1-21  or electromagnetic treatment based on the principles of Oriental

1-22  medicine.

2-1    2.  “Acupuncturist” means a person who is licensed pursuant to the

2-2  provisions of this chapter to practice acupuncture and Oriental medicine.

2-3    3.  “Board” means the state board of Oriental medicine.

2-4    [3.] 4.  “Doctor of acupuncture” means a person licensed under the

2-5  provisions of this chapter to practice acupuncture.

2-6    [4.] 5. “Doctor of Oriental medicine” means a person who is licensed

2-7  under the provisions of this chapter to practice Oriental medicine.

2-8    [5.] 6. “Herbal medicine” and “practice of herbal medicine” mean

2-9  [suggesting,] recommending, prescribing or directing the use of herbs for

2-10  the [cure, relief or palliation] treatment of any ailment or disease of the

2-11  mind or body, or [for the cure or relief of] any wound, bodily injury or

2-12  deformity.

2-13    [6.  “Herbs” means plants or parts of plants valued for medicinal

2-14  qualities.]

2-15    7.  “Licensed assistant in acupuncture” means a person who assists in

2-16  the practice of acupuncture under the direct supervision of a person

2-17  licensed under the provisions of this chapter to practice Oriental medicine

2-18  or acupuncture.

2-19    8.  “Oriental medicine” means that system of the healing art which

2-20  places the chief emphasis on the flow and balance of energy in the body

2-21  mechanism as being the most important single factor in maintaining the

2-22  well-being of the organism in health and disease. The term includes the

2-23  practice of acupuncture and herbal medicine and other services approved

2-24  by the board.

2-25    Sec. 3. NRS 634A.070 is hereby amended to read as follows:

2-26    634A.070  The board may:

2-27    1.  Employ attorneys, investigators and other professional consultants

2-28  and clerical personnel necessary to discharge its duties. [To conduct its

2-29  examinations, the board may call to its aid persons of established

2-30  reputation and known ability in Oriental medicine.

2-31    2.  Maintain offices in as many localities in the state as it finds

2-32  necessary to carry out the provisions of this chapter.

2-33    3.] 2. Adopt regulations not inconsistent with the provisions of this

2-34  chapter. The regulations may include a code of ethics regulating the

2-35  professional conduct of licensees.

2-36    [4.] 3. Compel the attendance of witnesses and the production of

2-37  evidence by subpoena.

2-38    Sec. 4.  NRS 634A.110 is hereby amended to read as follows:

2-39    634A.110  1.  An applicant for [examination for] a license to practice

2-40  Oriental medicine or any branch thereof, shall:

2-41    (a) Submit an application to the board on forms provided by the board;

2-42    (b) Submit satisfactory evidence that he is 21 years of age or older and

2-43  [meets] complies with the appropriate [educational requirements;]

2-44  requirements set forth in NRS 634A.140; and

2-45    (c) Pay a fee established by the board of not more than $1,000 . [; and

2-46    (d) Pay any fees required by the board for an investigation of the

2-47  applicant or for the services of a translator, if the translator is required to

2-48  enable the applicant to take the examination.]

3-1    2.  An application submitted to the board pursuant to subsection 1 must

3-2  include the social security number of the applicant.

3-3    Sec. 5.  NRS 634A.140 is hereby amended to read as follows:

3-4    634A.140  1.  The board shall issue [separate licenses to practice

3-5  respectively Oriental medicine or acupuncture, as appropriate, where the

3-6  applicant:

3-7    1.  Has successfully completed a course of study of:

3-8    (a) Four years in Oriental medicine; or

3-9    (b) Three years in acupuncture,

3-10  at any college or school approved by the board which is located in any

3-11  country, territory, province or state or has qualifications considered

3-12  equivalent by the board;

3-13    2.   Has practiced Oriental medicine, including acupuncture and herbal

3-14  medicine for 6 years; and

3-15    3.  Passes the examination of the board.] a license to practice

3-16  acupuncture and Oriental medicine to an applicant who:

3-17    (a) Has:

3-18       (1) Successfully completed a program of acupuncture or Oriental

3-19  medicine in:

3-20        (I) The United States that is accredited or provisionally

3-21  accredited by the Accreditation Commission for Acupuncture and

3-22  Oriental Medicine; or

3-23        (II) A foreign country that has been approved by the department

3-24  of education;

3-25      (2) Been certified in acupuncture by the National Certification

3-26  Commission for Acupuncture and Oriental Medicine; and

3-27      (3) Provided proof satisfactory to the board of his proficiency in the

3-28  oral and written expression of English; or

3-29    (b) Has:

3-30      (1)  Successfully completed a 3-year program of acupuncture and

3-31  Oriental medicine before July 1, 1998;

3-32      (2) Been certified in acupuncture by the National Certification

3-33  Commission for Acupuncture and Oriental Medicine; and

3-34      (3) Provided proof satisfactory to the board of his proficiency in the

3-35  oral and written expression of English.

3-36    2.  For the purposes of subparagraph (3) of paragraph (a) or (b) of

3-37  subsection 1, a passing score on:

3-38    (a) The Test of English as a Foreign Language administered by the

3-39  Educational Testing Service;

3-40    (b) The Test of Spoken English administered by the Educational

3-41  Testing Service; or

3-42    (c) The written examination for certification as an acupuncturist

3-43  administered in English by the National Certification Commission for

3-44  Acupuncture and Oriental Medicine,

3-45  constitutes satisfactory proof of the applicant’s proficiency in the oral

3-46  and written expression of English.

3-47    Sec. 6.  NRS 634A.160 is hereby amended to read as follows:

3-48    634A.160  1.  Every license must be displayed in the office, place of

3-49  business or place of employment of the holder thereof.

4-1    2.  Every person holding a license shall pay to the board on or before

4-2  February 1 of each year, the annual [registration] fee for a license required

4-3  pursuant to subsection 4. The holder of a license shall submit with the

4-4  [registration] fee the statement required pursuant to NRS 634A.115. If the

4-5  holder of a license fails to pay the [registration] fee or submit the

4-6  statement, his license must be suspended. The license may be reinstated by

4-7  payment of the required fee and submission of the statement within 90 days

4-8  after February 1.

4-9    3.  A license which is suspended for more than 3 months under the

4-10  provisions of subsection 2 may be canceled by the board after 30 days’

4-11  notice to the holder of the license.

4-12    4.  The annual [registration fees] fee for a license must be prescribed

4-13  annually by the board and must not exceed $1,000.

4-14    Sec. 7.  NRS 634A.165 is hereby amended to read as follows:

4-15    634A.165  1.  The board may adopt regulations for the issuance of

4-16  temporary certificates to persons who are not licensed pursuant to this

4-17  chapter. A temporary certificate may be issued:

4-18    (a) In connection with a bona fide educational seminar concerning

4-19  Oriental medicine or acupuncture; or

4-20    (b) [For the purpose of authorizing] To authorize a person to engage in

4-21  lecturing on or teaching Oriental medicine or acupuncture in this state [on a

4-22  short-term basis.] for not more than 6 months.

4-23    2.  The board may charge a fee for the issuance of a temporary

4-24  certificate. [The fee must not exceed an amount which adequately

4-25  reimburses the board for costs incurred in:

4-26    (a) Investigating an applicant under this section; and

4-27    (b) Monitoring a seminar, if the board deems that action necessary.]

4-28    Sec. 8.  NRS 634A.167 is hereby amended to read as follows:

4-29    634A.167  1.  To renew a license issued pursuant to this chapter, each

4-30  person must, on or before February 1 of each year:

4-31    (a) Apply to the board for renewal;

4-32    (b) Submit the statement required pursuant to NRS 634A.115;

4-33    (c) Pay the annual fee for [registration] a license prescribed by the

4-34  board; and

4-35    (d) Submit evidence to the board of his completion of the requirements

4-36  for continuing education.

4-37    2.  The board shall, as a prerequisite for the renewal or reinstatement of

4-38  a license, require each holder of a license to comply with the requirements

4-39  for continuing education adopted by the board.

4-40    Sec. 9.  NRS 634A.170 is hereby amended to read as follows:

4-41    634A.170  The board may refuse to issue or may suspend or revoke

4-42  any license for any one or any combination of the following causes:

4-43    1.  Conviction of:

4-44    (a) A felony;

4-45    (b) Any offense involving moral turpitude;

4-46    (c) A violation of any state or federal law regulating the possession,

4-47  distribution or use of any controlled substance, as shown by a certified

4-48  copy of the record of the court; or

5-1    (d) A violation of any of the provisions of NRS 616D.200, 616D.220,

5-2  616D.240 or 616D.300 to 616D.440, inclusive;

5-3    2.  [The obtaining of or any attempt] Obtaining or attempting to obtain

5-4  a license , or [practice] practicing in the profession for money or any other

5-5  thing of value, by fraudulent misrepresentations;

5-6    3.  Gross or repeated malpractice, which may be evidenced by claims

5-7  of malpractice settled against a practitioner;

5-8    4.  Advertising by means of a knowingly false or deceptive statement;

5-9    5.  Advertising, practicing or attempting to practice under a name other

5-10  than one’s own;

5-11    6.  Habitual drunkenness or habitual addiction to the use of a controlled

5-12  substance;

5-13    7.  Using any false, fraudulent or forged statement or document, or

5-14  engaging in any fraudulent, deceitful, dishonest or immoral practice in

5-15  connection with the licensing requirements of this chapter;

5-16    8.  Sustaining a physical or mental disability which renders further

5-17  practice dangerous;

5-18    9.  Engaging in any dishonorable, unethical or unprofessional conduct

5-19  which may deceive, defraud or harm the public, or which is unbecoming a

5-20  person licensed to practice under this chapter;

5-21    10.  Using any false or fraudulent statement in connection with the

5-22  practice of Oriental medicine or any branch thereof[;] , including, without

5-23  limitation, advertising or claiming to cure any condition;

5-24    11.  Violating or attempting to violate, or assisting or abetting the

5-25  violation of, or conspiring to violate any provision of this chapter;

5-26    12.  Being adjudicated incompetent or insane;

5-27    13.  Advertising in an unethical or unprofessional manner;

5-28    14.  Obtaining a fee or financial benefit for any person by the use of

5-29  fraudulent diagnosis, therapy or treatment;

5-30    15.  Willful disclosure of a privileged communication;

5-31    16.  Failure of a licensee to designate the nature of his practice in the

5-32  professional use of his name by the term “ doctor of Oriental medicine, ”
“ doctor of acupuncture ,” “acupuncturist” or “ acupuncture assistant, ” as

5-33  the case may be;

5-34    17.  Willful violation of the law relating to the health, safety or welfare

5-35  of the public or of the regulations adopted by the state board of health;

5-36    18.  Administering, dispensing or prescribing any controlled substance

5-37  [, except for the prevention, alleviation or cure of disease or for relief from

5-38  suffering; and] ; or

5-39    19.  Performing, assisting or advising in the injection of any liquid

5-40  silicone substance into the human body.

5-41    Sec. 10.  NRS 634A.190 is hereby amended to read as follows:

5-42    634A.190  1.  Persons licensed pursuant to this chapter are not subject

5-43  to the provisions of chapter 630 of NRS.

5-44    2.  A person who is licensed pursuant to this chapter [to practice] as a

5-45  doctor of Oriental medicine or doctor of acupuncture may refer to himself

5-46  as a [physician] doctor of Oriental medicine[.] or doctor of acupuncture if

5-47  he has successfully completed a doctorate program in acupuncture or

6-1  Oriental medicine, respectively, that has been approved by the

6-2  Accreditation Commission for Acupuncture and Oriental Medicine.

6-3    Sec. 11.  NRS 634A.200 is hereby amended to read as follows:

6-4    634A.200  1.  This chapter does not apply to [Oriental physicians who

6-5  are called into this state for consultation.] a person who:

6-6    (a) Has successfully completed a course in auricular acupuncture for

6-7  the treatment of the abuse of alcohol or drugs that is approved by the

6-8  National Acupuncture Detoxification Association;

6-9    (b) Uses auricular acupuncture in a program for alcohol and drug

6-10  abuse approved by the bureau of alcohol and drug abuse in the

6-11  department of human resources or the board; and

6-12    (c) Is under the supervision of a doctor of Oriental medicine, doctor of

6-13  acupuncture or acupuncturist licensed pursuant to the provisions of this

6-14  chapter or a physician licensed pursuant to the provisions of chapter 630

6-15  of NRS.

6-16    2.  This chapter does not prohibit:

6-17    (a) Gratuitous services of druggists or other persons in cases of

6-18  emergency.

6-19    (b) The domestic administration of family remedies.

6-20    (c) Any person from assisting any person in the practice of the healing

6-21  arts licensed under this chapter, except that such person may not insert

6-22  needles into the skin or prescribe herbal medicine.

6-23    Sec. 12.  NRS 634A.210 is hereby amended to read as follows:

6-24    634A.210  Doctors of Oriental medicine , [and] doctors of acupuncture

6-25  and acupuncturists shall observe and are subject to all state and municipal

6-26  regulations relative to reporting all births and deaths in all matters

6-27  pertaining to the public health.

6-28    Sec. 13.  NRS 634A.230 is hereby amended to read as follows:

6-29    634A.230  Any person who represents himself as [a] an acupuncturist,

6-30  practitioner of Oriental medicine, or any branch thereof, or who engages in

6-31  the practice of Oriental medicine, or any branch thereof, in this state

6-32  without holding a [valid] license issued by the board is guilty of a gross

6-33  misdemeanor.

6-34    Sec. 14.  NRS 41A.097 is hereby amended to read as follows:

6-35    41A.097  1.  Except as otherwise provided in subsection 2, an action

6-36  for injury or death against a provider of health care may not be commenced

6-37  more than 4 years after the date of injury or 2 years after the plaintiff

6-38  discovers or through the use of reasonable diligence should have

6-39  discovered the injury, whichever occurs first, for:

6-40    (a) Injury to or the wrongful death of a person, based upon alleged

6-41  professional negligence of the provider of health care;

6-42    (b) Injury to or the wrongful death of a person from professional

6-43  services rendered without consent; or

6-44    (c) Injury to or the wrongful death of a person from error or omission in

6-45  practice by the provider of health care.

6-46    2.  This time limitation is tolled:

6-47    (a) For any period during which the provider of health care has

6-48  concealed any act, error or omission upon which the action is based and

7-1  which is known or through the use of reasonable diligence should have

7-2  been known to him.

7-3    (b) In any action governed by the provisions of NRS 41A.003 to

7-4  41A.069, inclusive, from the date a claimant files a complaint for review

7-5  by a screening panel until 30 days after the date the panel notifies the

7-6  claimant, in writing, of its findings. The provisions of this paragraph apply

7-7  to an action against the provider of health care and to an action against any

7-8  person, government or political subdivision of a government who is alleged

7-9  by the claimant to be liable vicariously for the medical or dental

7-10  malpractice of the provider of health care, if the provider, person,

7-11  government or political subdivision has received notice of the filing of a

7-12  complaint for review by a screening panel within the limitation of time

7-13  provided in subsection 1.

7-14    3.  For the purposes of this section, the parent, guardian or legal

7-15  custodian of any minor child is responsible for exercising reasonable

7-16  judgment in determining whether to prosecute any cause of action limited

7-17  by subsection 1. If the parent, guardian or custodian fails to commence an

7-18  action on behalf of that child within the prescribed period of limitations,

7-19  the child may not bring an action based on the same alleged injury against

7-20  any provider of health care upon the removal of his disability, except that

7-21  in the case of:

7-22    (a) Brain damage or birth defect, the period of limitation is extended

7-23  until the child attains 10 years of age.

7-24    (b) Sterility, the period of limitation is extended until 2 years after the

7-25  child discovers the injury.

7-26    4.  As used in this section, “provider of health care” means a physician

7-27  licensed under chapter 630 or 633 of NRS, dentist, registered nurse,

7-28  dispensing optician, optometrist, registered physical therapist, podiatric

7-29  physician, licensed psychologist, chiropractor, doctor of Oriental medicine,

7-30  doctor of acupuncture, acupuncturist, medical laboratory director or

7-31  technician, or a licensed hospital as the employer of any such person.

7-32    Sec. 15.  NRS 202.2491 is hereby amended to read as follows:

7-33    202.2491  1.  Except as otherwise provided in subsections 5 and 6 and

7-34  NRS 202.24915, the smoking of tobacco in any form is prohibited if done

7-35  in any:

7-36    (a) Public elevator.

7-37   (b) Public building.

7-38    (c) Public waiting room, lobby or hallway of any:

7-39      (1) Medical facility or facility for the dependent as defined in chapter

7-40  449 of NRS; or

7-41      (2) Office of any chiropractor, dentist, physical therapist, physician,

7-42  podiatric physician, psychologist, optician, optometrist, acupuncturist,

7-43  doctor of Oriental medicine or doctor of acupuncture.

7-44    (d) Hotel or motel when so designated by the operator thereof.

7-45    (e) Public area of a store principally devoted to the sale of food for

7-46  human consumption off the premises.

7-47    (f) Child care facility.

8-1    (g) Bus used by the general public, other than a chartered bus, or in any

8-2  maintenance facility or office associated with a bus system operated by any

8-3  regional transportation commission.

8-4    (h) School bus.

8-5    2.  The person in control of an area listed in paragraph (c), (d), (e), (f)

8-6  or (g) of subsection 1:

8-7    (a) Shall post in the area signs prohibiting smoking in any place not

8-8  designated for that purpose as provided in paragraph (b).

8-9    (b) May designate separate rooms or portions of the area which may be

8-10  used for smoking, except for a room or portion of the area of a store

8-11  described in paragraph (e) of subsection 1 if the room or portion of the

8-12  area:

8-13      (1) Is leased to or operated by a person licensed pursuant to NRS

8-14  463.160; and

8-15      (2) Does not otherwise qualify for an exemption set forth in NRS

8-16  202.24915.

8-17    3.  The person in control of a public building:

8-18    (a) Shall post in the area signs prohibiting smoking in any place not

8-19  designated for that purpose as provided in paragraph (b).

8-20    (b) Shall, except as otherwise provided in this subsection, designate a

8-21  separate area which may be used for smoking.

8-22  A school district which prohibits the use of tobacco by pupils need not

8-23  designate an area which may be used by the pupils to smoke.

8-24    4.  The operator of a restaurant with a seating capacity of 50 or more

8-25  shall maintain a flexible nonsmoking area within the restaurant and offer

8-26  each patron the opportunity to be seated in a smoking or nonsmoking area.

8-27    5.  A business which derives more than 50 percent of its gross receipts

8-28  from the sale of alcoholic beverages or 50 percent of its gross receipts from

8-29  gaming operations may be designated as a smoking area in its entirety by

8-30  the operator of the business.

8-31    6.  The smoking of tobacco is not prohibited in:

8-32    (a) Any room or area designated for smoking pursuant to paragraph (b)

8-33  of subsection 2 or paragraph (b) of subsection 3.

8-34    (b) A licensed gaming establishment. A licensed gaming establishment

8-35  may designate separate rooms or areas within the establishment which may

8-36  or may not be used for smoking.

8-37    7.  The person in control of a child care facility shall not allow children

8-38  in any room or area he designates for smoking pursuant to paragraph (b) of

8-39  subsection 2. Any such room or area must be sufficiently separate or

8-40  ventilated so that there are no irritating or toxic effects of smoke in the

8-41  other areas of the facility.

8-42    8.  As used in this section:

8-43    (a) “Child care facility” means an establishment licensed pursuant to

8-44  chapter 432A of NRS to provide care for 13 or more children.

8-45    (b) “Licensed gaming establishment” has the meaning ascribed to it in

8-46  NRS 463.0169.

8-47    (c) “Public building” means any building or office space owned or

8-48  occupied by:

9-1       (1) Any component of the University and Community College

9-2  System of Nevada and used for any purpose related to the system.

9-3       (2) The State of Nevada and used for any public purpose, other than

9-4  that used by the department of prisons to house or provide other services to

9-5  offenders.

9-6       (3) Any county, city, school district or other political subdivision of

9-7  the state and used for any public purpose.

9-8  If only part of a building is owned or occupied by an entity described in

9-9  this paragraph, the term means only that portion of the building which is so

9-10  owned or occupied.

9-11    (d) “School bus” has the meaning ascribed to it in NRS 483.160.

9-12    Sec. 16.  Notwithstanding the provisions of NRS 634A.190, a person

9-13  who is licensed to practice as a doctor of Oriental medicine or doctor of

9-14  acupuncture by the state board of Oriental medicine on October 1, 2001,

9-15  may refer to himself as a doctor of Oriental medicine or doctor of

9-16  acupuncture, respectively.

9-17    Sec. 17.  NRS 634A.090, 634A.120 and 634A.225 are hereby

9-18  repealed.

9-19    Sec. 18.  The amendatory provisions of this act do not apply to

9-20  offenses committed before October 1, 2001.

 

9-21  TEXT OF REPEALED SECTIONS

 

9-22    634A.090  Approval of schools of Oriental medicine.

9-23    1.  A school or college of Oriental medicine may be established and

9-24   maintained in this state only if:

9-25    (a) Its establishment is approved by the board; and

9-26    (b) Its curriculum is approved annually by the board for content and

9-27   quality of instruction in accordance with the requirements of this chapter.

9-28    2.  The board may prescribe the courses of study required for the

9-29   respective degrees of doctor of acupuncture and doctor of Oriental

9-30   medicine.

9-31    634A.120  Examinations: Times; subjects covered.

9-32    1.  Examinations must be given at least once a year at a time and place

9-33   fixed by the board.

9-34    2.  Applicants for licenses to practice acupuncture or Oriental medicine

9-35   or to practice as an assistant in acupuncture must be examined in the

9-36   appropriate subjects as determined by the board.

9-37    634A.225  Seminars not in accordance with board’s regulations

9-38   prohibited; penalty.

9-39    1.  No seminar concerning Oriental medicine or acupuncture may be

9-40   conducted in this state except in accordance with regulations prescribed by

9-41   the board for bona fide educational seminars.

9-42    2.  Any person who violates subsection 1 is guilty of a misdemeanor.

 

9-43  H