At its regularly scheduled quarterly meeting on March 25-26, 2021, the California Acupuncture Board (CAB) discussed and made recommendations to update and clarify regulations regarding the practice of Telehealth by licensed Acupuncturists.
In response to the COVID-19 pandemic, Governor Newsom’s Executive Order N-43-20 provided that clinics, hospitals, other health care facilities, and health care providers maximize the number of capable health care workers through the use of telehealth services to ensure that Californians impacted by COVID-19 are able to access medical treatment as necessary. Additionally, the Governor’s Order N-43-20 aimed to reduce the spread of COVID-19, and protect health care workers, including the use of telehealth services, where possible, for any reason and not limited to the diagnosis and treatment of COVID-19 or related conditions. This order has allowed healthcare providers, including Licensed Acupuncturists, to provide medical care and advice remotely to patients employing the practice of telehealth.
Earlier this year, the CAB received many questions from licensees and the public as to whether the acupuncture profession could provide its services via electronic means. Due to the sudden need and in the absence of regulatory authority the Board issued a Telehealth Statement for Licensed Acupuncturists providing general guidelines for the profession to follow when conducting telehealth.
Business and Professions (BPC) Code section 2290.5 provides statutory authority allowing licensed acupuncturists, as well as other Division 2 Healing Arts licensees, to deliver healthcare via telehealth. Based upon that authority, staff has identified that further guidelines and requirements specific to the delivery of acupuncture services provided via telehealth are necessary.
Staff brought proposed regulatory language for discussion to the Licensing and Examination Committee (LEC) meeting held December 17, 2020. At the Board meeting held that same day, Board voted for staff to make additional amendments as necessary based on recent Legal review, add telehealth to the 2021 rulemaking calendar, and bring back the amended proposed language to the next Board meeting for consideration.
Staff proposed that CAB adopt new Section 1399.452.1 of Article 5 of Division 13.7 of Title 16 of the California Code of Regulations, titled, “Standards of Practice for Telehealth Services.”
The provisions of the proposed regulation are as follows:
- Licensees are permitted to provide acupuncture services listed in BPC section 4937 via telehealth subject to specified circ*mstances. The previous proposed language brought to the December 2020 LEC meeting, cited BPC section 4927. The citation was changed to Section 4937, which is more inclusive of all modalities and services permitted by a licensed acupuncturist.
- Licensees, as used in this section, only include licensed acupuncturists. Previously, the proposed language brought to the December 2020 LEC meeting included acupuncture trainees enrolled in Board approved educational and training programs and Board approved tutorial programs. However, this inclusion had to be removed as there is no authority under BPC sect. 2290.5 to allow for this.
- Telehealth services can only be provided to patients within California.
- Licensees must hold a current and valid license.
- The licensee obtains and documents informed consent from the patients receiving services via telehealth.
- The informed consent covers:
- Risks to confidentiality and security
- Data storage policies and procedures
- Possibility of disruption and/or interruption of service due to technological failure
- Insurance coverage considerations
- Other issues involving incompatibility between acupuncture services delivered in person and those delivered via telehealth
- Factors for the licensee to consider when determining the appropriateness of telehealth services. Factors include:
- Ability to obtain diagnostic information to provide a diagnosis and prescribe treatment
- Patient’s diagnosis, symptoms, and medical history
- Patient’s preference for receipt of telehealth services
- Benefits, risks, and constraints resulting from their delivery via telehealth and the nature of services provided
- Licensees are competent to deliver services based on knowledge, skills, and abilities relating to delivery of acupuncture services via telehealth
- Licensees are competent to deliver information technology chosen for telehealth services
- Licensees are competent to determine how services might differ from those delivered in person
- Licensees take reasonable steps to ensure electronic data is transmitted securely
- Licensees inform the patient immediately of any known data breach or unauthorized dissemination of data.
- Licensees comply with the Acupuncture Licensure Act, Acupuncture Board regulations, and all other applicable provisions of law and standards of care in California related to the practice of acupuncture.
Failure to comply with this section constitutes unprofessional conduct.
At the recommendation of Staff and the Licensing & Exam Committee, the CAB approved the proposed regulatory text for Title 16, CCR section 1399.483 and 1399.489, directed staff to submit the text to the Director of Consumer Affairs and the Business, Consumer Services, and Housing Agency for review, and if no adverse comments are received, authorized the Executive Officer to take all steps necessary to initiate the rulemaking process, make any non-substantive grammatical and/or technical changes to the package, and set the matter for hearing, if a hearing is requested by the public.
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