Proposed New Rule: N.J.A.C. 13:35-9.12A
Proposed Repeals: N.J.A.C. 13:35-9.6, 9.17, 9.18, and 9.19
Purpose and Scope; Definitions; Education Required for Licensure; New Jersey Acupuncture Safety and Jurisprudence Examination; Training Required of a Physician or Dentist; Fee Schedule; Biennial License Renewal; License Suspension; Reinstatement of Suspended License; Inactive Status; Return from Inactive Status; Display of License; Informed Consent; Medical Malpractice; Scope of Practice; Herbology; Guest Acupuncturist; Unlicensed Practice of Acupuncture; Precautionary and Sterilization Procedures; Preparation of Patient Records; Computerized Records; Access to or Release of Information; Confidentiality, Transfer, or Disposal of Records; Tutorial Applications and Design of Tutorial Program; Responsibilities of Supervising Acupuncturist; Responsibilities of the Acupuncture Apprentice; Continuing Professional Education Requirements
Authorized By: Acupuncture Examining Board, Renee Clark, Executive Director and State Board of Medical Examiners, William Roeder, Executive Director.
Authority: N.J.S.A. 45:2C-3 and P.L. 2009, c. 56.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2013-059.
Submit comments by: July 31, 2013 to:
Renee Clark, Executive Director
State Acupuncture Examining Board
Division of Consumer Affairs
124 Halsey Street
PO Box 45002
Newark, New Jersey 07101
The agency proposal follows:
P.L. 2009, c. 56 amended N.J.S.A. 45:2C-1 et seq. governing the regulation of acupuncturists in New Jersey. The Acupuncture Examining Board (Board) proposes to amend or repeal several rules in N.J.A.C. 13:35-9 in order to effectuate P.L. 2009, c. 56.
P.L. 2009, c. 56 amended N.J.S.A. 45:2C-1 et seq., so that acupuncturists are now licensed by the Board, not certified. Accordingly, throughout the rules, the terms "certified," "certification," and "certificate holder" are proposed to be changed to "licensed," "license," and "licensee," respectively. Previously, N.J.S.A. 45:2C-9 permitted an applicant to qualify for certification as an acupuncturist by completing a tutorial. P.L. 2009, c. 56 amended N.J.S.A. 45:2C-9 by deleting the provision that permitted an applicant to complete a tutorial program. The Board proposes to repeal N.J.A.C. 13:35-9.17, 9.18, and 9.19, which outline the requirements for a tutorial program. The Board also proposes to amend N.J.A.C. 13:35-9.1, 9.2, 9.4, 9.8, 9.12, 9.13, and 9.14, to delete references to tutorial programs and the training agreements, plans, and programs that were part of tutorial programs.
The Board proposes to amend N.J.A.C. 13:35-9.2 to provide new definitions for the terms "ACOAM," "adjunctive therapies," "gua sha," "glandulars," "herbology," "oriental dietary therapy," "oriental medicine," "qigong," and "tuina." The Board also proposes to amend the definition of "acupuncture" to recognize that it includes the practice of oriental medicine and adjunctive therapies. The definition of "acupuncture program" is proposed for amendment to require that such programs be at least three, rather than two, years long.
Under N.J.S.A. 45:2C-9 prior to amendment, the holder of a license to practice medicine and surgery satisfied the educational requirements for certification as an acupuncturist. P.L. 2009, c. 56 amended N.J.S.A. 45:2C-9 by deleting this provision. The Board proposes to amend N.J.A.C. 13:35-9.4 to remove provisions that recognized that holding a license to practice medicine and surgery satisfied the educational requirements for licensure. N.J.A.C. 13:35-9.4(a)1 requires a baccalaureate degree to meet the requirements of subsection (b). this subsection does not establish baccalaureate degree requirements and the Board proposes to amend this rule to delete the cross-reference to subsection (b).
The Board proposes to amend N.J.A.C. 13:35-9.5 to clarify that an applicant who is required to retake the licensing examination must pass the examination before being issued a license.
N.J.A.C. 13:35-9.6 sets forth requirements that a physician or dentist must meet in order to practice acupuncture. P.L. 2009, c. 56 established that such a physician or dentist is subject to oversight by the Board of Medical Examiners or the Board of Dentistry. It is therefore no longer appropriate for the Board to have rules establishing standards for physicians or dentists and the Board proposes to repeal N.J.A.C. 13:35-9.6.
The Board proposes to amend the heading of N.J.A.C. 13:35-9.8 to delete the word "refunds." N.J.A.C. 13:35-9.8(b) and (c) refer to refund of examination fees. As the Board no longer charges an examination fee, it proposes to delete these two subsections. N.J.A.C. 13:35-9.9 incorrectly references the rule on fees as N.J.A.C. 13:35-9.6. This rule was recodified as N.J.A.C. 13:35-9.8 in 2010, see 41 N.J.R. 2617(a); 42 N.J.R. 1216(a), effective June 21, 2010. The Board proposes to amend N.J.A.C. 13:35-9.9 to reflect this recodification. Prior to amendment, N.J.S.A. 45:2C-5 required that an initial acupuncture treatment be performed only upon a referral or diagnosis from a physician. P.L. 2009, c. 56 amended this, so that a referral is no longer required for an initial acupuncture treatment. The amendments to the law imposed two new requirements on licensed acupuncturists: that they advise patients as to the importance of consulting a physician and that they maintain medical malpractice insurance. The Board proposes to amend the heading of N.J.A.C. 13:35-9.11 to delete "referral" from the heading and add "medical malpractice." The Board proposes to delete subsection (a) of the rule, which deals with the required referral or diagnosis from a physician. The Board proposes to amend the rule to require that acupuncturists obtain informed written consent from patients and signed forms indicating that they informed their patients as of the importance of consulting physicians as part of their records. The Board also proposes to amend the rule to require licensed acupuncturists to maintain medical malpractice insurance in the sum of one million dollars per occurrence and three million dollars per policy year. The Board researched the amount of malpractice insurance required in other states and found that the average amount was the one million/three million the Board proposes for its licensees.
P.L. 2009, c. 56 recognizes that acupuncture includes the practice of Oriental medicine. The Board proposes to amend N.J.A.C. 13:35-9.12 to include new procedures in the acupuncture scope of practice pursuant to the expanded scope provided in P.L. 2009, c. 56. The Board proposes to delete reference to stimulating acupuncture points and channels in subsection (b). This reference is no longer accurate as the practice of acupuncture, pursuant to P.L. 2009, c. 56, now encompasses more than just stimulating acupuncture points and channels. The Board proposes to amend the rule to correct spellings and to recognize several new procedures, such as Oriental dietary therapy, lifestyle and behavioral education, Qigong, diagnostic and assessment techniques, Taiji, energetic therapy, biofeedback, and percutaneous electrical nerve stimulation, [page=730] which are now part of acupuncture practice. The Board proposes to allow acupuncturists to recommend the use of meditation and products that facilitate health to patients and to use non-insertive pressure needles when providing acupuncture at subsections (c) and (d), respectively. The rule currently allows acupuncturists to use disposable lancets when providing acupuncture. As there is no difference between disposable and other kinds of lancets, it is not necessary to limit acupuncturists to use only disposable lancets. The Board proposes to amend the rule to allow acupuncturists to use any kind of lancet. The Board also proposes to amend N.J.A.C. 13:35-9.12, so that it is clear that the only acupuncturists who can perform herbology are those who have met the requirements set forth in N.J.A.C. 13:35-9.12A and to permit licensees to offer goods and devices to patients. Licensees may charge only a fair market value for these goods and devices.
P.L. 2009, c. 56 permits acupuncturists who complete specific education to use herbology as part of their acupuncture practice. The Board proposes new N.J.A.C. 13:35-9.12A to set forth that education. An acupuncturist who seeks to practice herbology must submit to the Board proof that he or she is certified in Chinese Herbology or Oriental Medicine by the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM). The rule provides an alternative route to obtain permission to practice herbology for acupuncturists who obtained their license prior to November 2, 2009. The proposed new rule also provides an alternative route for students who were enrolled in an acupuncture program prior November 2, 2009. These alternative routes will be valid only for six months from the effective date of the new rule. The proposed new rule requires that any acupuncturist who is permitted to practice herbology to complete at least 10 hours of continuing education related to herbology every biennial renewal period.
N.J.A.C. 13:35-9.16 requires licensees to maintain as part of their records an indication that a referral or diagnosis from a physician was made for a patient. As a referral or diagnosis from a physician is no longer required, the Board proposes to delete this provision. The Board proposes to amend the rule to require that licensees maintain in their records documentation of any recommendations made to a patient as to the use of meditation or products that facilitate health.
The Board proposes to amend N.J.A.C. 13:35-9.20 to correct a mistaken reference to the number of continuing education credits acupuncturists are required to complete every biennial renewal period, from 20 to 30, as required under subsection (c).
The Board has determined that the comment period for this notice of proposal shall be 60 days; therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.
The proposed amendments and repeals will benefit those who receive acupuncture services by requiring that acupuncturists advise patients as to the importance of consulting a physician. Requiring acupuncturists to maintain medical malpractice insurance will benefit society by ensuring that licensed acupuncturists have the resources to cover any damages due to malpractice on their part. Proposed amendments to N.J.A.C. 13:35-9.12 will benefit the public by increasing the services that acupuncturists can provide to patients. Proposed new N.J.A.C. 13:35-9.12A will protect patients by ensuring that the acupuncturists who practice herbology have sufficient education to provide this service in a safe and effective manner.
The statutory requirement that licensed acupuncturists maintain medical malpractice insurance will impose costs on licensees. Research indicates that such insurance can cost between $ 600.00 and $ 1,000 a year. These costs are outweighed by the benefits the public receives by ensuring that licensed acupuncturists have the resources to cover any damages due to malpractice on the part of the licensed acupuncturist. The proposed education requirements for licensed acupuncturists who seek to practice herbology will impose costs on such licensees. It costs $ 725.00 to become certified in herbology by NCCAOM and $ 220.00 to renew this certification, which is valid for four years. These costs are outweighed by the benefit patients receive from acupuncturists being properly educated to provide herbology in a safe and effective manner. The proposed amendments, repeals, and new rule do not impose any other costs.
Federal Standards Statement
A Federal standards analysis is not required because the proposed amendments, repeals, and new rule do not involve any Federal standards or requirements.
The Board does not believe that the proposed amendments, repeals, and new rule will have an impact on jobs in New Jersey.
Agriculture Industry Impact
The Board does not believe that the proposed amendments, repeals, and new rule will have any impact on the agriculture industry of this State.
Regulatory Flexibility Analysis
Since acupuncturists are individually licensed by the Board, they may be considered "small businesses" under the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq.
Costs that small businesses may incur are the same for all acupuncturists incur as summarized in the Economic Impact statement above. The Board does not believe that acupuncturists will need to employ any professional services in order to comply with the proposed amendments, repeals, and new rule. The proposed amendments, repeals, and new rule imposes compliance, recordkeeping, and reporting requirements as summarized in the Summary above.
As the proposed amendments, repeals, and new rule protects the health, safety, and welfare of patients who receive acupuncture services, the Board believes that the rules must be uniformly applied to all acupuncturists and no exemptions are provided based on the size of the acupuncturist's business.
Housing Affordability Impact Analysis
The proposed amendments, repeals, and new rule will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the rules concern the practice of acupuncturists.
Smart Growth Development Impact Analysis
The proposed amendments, repeals, and new rule will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rules would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the rules concern the practice of acupuncturists.
Full text of the rules proposed for repeal may be found in the New Jersey Administrative Code at N.J.A.C. 13:35-9.6, 9.17, 9.18, and 9.19.
Full text of the proposed amendments and new rule follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
SUBCHAPTER 9. ACUPUNCTURE
13:35-9.1 Purpose and scope
(a) (No change.)
(b) [These rules] The rules of this subchapter shall apply to all persons [certified] licensed as acupuncturists by the State of New Jersey, applicants for such [certification] licensure, guest acupuncturists granted temporary permission by the Board to perform acupuncture pursuant to N.J.A.C. 13:35-9.13, students participating in an approved course of study[,] or school [or tutorial program] in acupuncture, and persons licensed in New Jersey as physicians or dentists who practice acupuncture, provided that their courses of training have included acupuncture.
For purposes of this subchapter, the following terms shall have the following meanings:
"ACAOM" means the Accreditation Commission for Acupuncture and Oriental Medicine.
"Acupuncture" means the practice of Oriental medicine based on traditional Oriental medical theories, including stimulation of a certain point or points on or near the surface of the body by the insertion of [page=731] special needles to prevent or modify the perception of pain or to normalize physiological functions including pain control and for the treatment of certain diseases or dysfunctions of the body. "Acupuncture" includes the techniques electroacupuncture, mechanical stimulation, adjunctive therapies, and moxibustion.
"Acupuncture program" means a course of study in acupuncture that is at least [two] three years long and which is in addition to and separate from a baccalaureate degree program.
["Acupuncture tutorial" means an acupuncture tutorial program which has been approved by the Acupuncture Examining Board and which provides applicants who successfully complete the program with the requirements to sit for the examination for certification as an acupuncturist.]
"Acupuncturist" means an individual [certified] licensed by the Board to perform acupuncture services.
["Apprentice" means a person who is registered with the Board in order to participate in an acupuncture tutorial under a supervising acupuncturist.]
"Adjunctive therapies" means those practices taught in ACAOM-approved schools and through NCCAOM-approved continuing education courses that are complementary to the performance of acupuncture.
. . .
["Certified," "certification," and "certificate" mean Board-issued authorization that an individual possesses the qualifications to perform acupuncture services.]
. . .
"Glandulars" means non-prescriptive supplements that are derived from glands.
"Gua sha" means scraping applied to the surface of the skin with a round edged tool for therapeutic purposes.
. . .
"Herbology" means the administration or recommendation of botanical, mineral, or animal substances, and includes prepared and raw forms of single herbs or formulas, and dietary supplements that incorporate herbs as ingredients. "Herbology" does not include the injection of herbs.
. . .
"Oriental dietary therapy" means dietary and nutritional counseling and the recommendation of foods for therapeutic purposes.
"Oriental medicine" means a whole medical system originating in East Asia that aims to treat disease and support the body's ability to heal itself with a diverse range of traditional and modern therapeutic interventions.
"Qigong" means breathing techniques and exercises that promote health.
. . .
["Supervising acupuncturist" or "supervisor" means a certified acupuncturist who is approved by the Board to provide an acupuncture tutorial to a trainee.]
. . .
["Training agreement" means the written tutorial agreement between the supervisor and the trainee.
"Training plan" means the written tutorial plan that is filed with and approved by the Board.
"Training program" means and encompasses the agreement and the plan.]
"Tuina" means a form of massage therapy based on traditional Oriental medical theories using or incorporating traction, manipulation of acupressure points, acupoint stimulation, and joint mobilization for therapeutic purposes.
13:35-9.4 Education required for [certification] licensure
(a) In order to qualify for [certification] licensure, an applicant shall meet one of the following education requirements:
1. Obtain a baccalaureate degree[, which meets the requirements of (b) below,] from a school within the United States and graduate from an acupuncture program, which meets the requirements of (e) below; or
2. Obtain the equivalent of a baccalaureate degree from a school in another country and complete either:
i. (No change.)
ii. An acupuncture program that is part of the baccalaureate degree program or its equivalent in another country[;].
[3. Hold an unencumbered license as a physician in New Jersey or a license as a dentist in New Jersey. An applicant who qualifies for certification by this method shall submit to the Board proof that he or she holds a license to practice medicine and surgery in New Jersey or a license to practice dentistry in New Jersey; or
4. Successfully complete a tutorial program in acupuncture, which meets the requirements set forth in N.J.A.C. 13:35-9.17.]
(b)-(d) (No change.)
(e) An acupuncture program that is required for [certification] licensure shall be given by a school accredited by the Accreditation Commission for Acupuncture and Oriental Medicine, the Commission on Recognition of Post-Secondary Accreditation, or the United States Department of Education. A list of accredited acupuncture schools shall be maintained by the Board and provided to an applicant upon request. An applicant shall arrange for the school of acupuncture to submit a certified transcript confirming that a diploma was awarded to the applicant directly to the Board.
(f)-(g) (No change.)
13:35-9.5 New Jersey acupuncture safety and jurisprudence examination
(a)-(b) (No change.)
(c) An applicant who has passed the acupuncture safety and jurisprudence examination shall become [certified] licensed within six months of passing the examination. If an applicant fails to become [certified] licensed within the six months, he or she shall be required to retake and pass the examination before being issued a [certificate] license.
13:35-9.8 Fee schedule[; refunds]
(a) The Board shall charge the following fees:
1.-3. (No change.)
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