Acupuncturist License Defense Attorneys

With the practice of acupuncture growing in the United States and the increasing costs of mainstream or traditional medicine, the role of the acupuncturist is becoming more important among healthcare options.

With this rising popularity and need comes closer regulatory scrutiny. For Texas acupuncturists, this oversight fosters a safe and stable industry; however, it also increases the risk to professionals if they find themselves the target of a complaint or disciplinary action. If a claim has been made against you, your license, professional reputation, and career may be on the line. Do not underestimate the situation. Contact an experienced acupuncturist license defense attorney as soon as possible.

At McDonald, Mackay, Porter & Weitz, L.L.P., we’ve built our practice on preserving the rights of licensed professionals across Texas. We are well-versed in how licensing agencies issue credentials and investigate possible misconduct. Let us defend you and your livelihood. Contact us to schedule a consultation with a Texas health license defense lawyer.

About the Texas State Board of Acupuncture Examiners 

In Texas, acupuncturists are licensed and regulated through the Texas State Board of Acupuncture Examiners (TSBAE or the Acupuncture Board), but under the supervisory control of the Texas Medical Board (TMB). The two Boards also share staff and resources and are located in Austin.

With the TMB ratcheting down on physicians, in part as a tradeoff for tort reform, the acupuncture community is also feeling a tightening of regulation and a greater impact from Acupuncture Board enforcement actions. In short, acupuncturists are facing a strict licensure process as well as disciplinary action on a more frequent basis.

Texas Acupuncture Licensure Process

If you are planning on getting your Texas Acupuncture license, you may want to start now. This is especially true if you are facing any time constraints like a pending job or meeting expenses for a practice you have already started setting up. It often takes months to obtain an acupuncture license and it may even require a trip to Austin to appear before a licensure committee of the Texas State Board of Acupuncture Examiners.

The actual application form is not difficult and can be handled online in about an hour. However, once the application is submitted, it is screened and reviewed by agency staff. It is not uncommon for an application to sit for some time before it is assigned to an analyst or investigator. Additionally, if you indicate anything on the application related to a malpractice history, past criminal record, or substance abuse, you should plan for a longer review period. Do not try to fool or mislead the Board by answering “no” to a question when you should answer “yes.” This mistake can lead to long delays, embarrassing apologies, costly committee appearances, possible fines and restrictions, and even the denial of your application. If you are not sure about an answer, you are best advised to find out before submitting an incorrect application. The Board will typically refuse to grant a license to a person who they believe was untruthful or omitted important information.

If you are thinking about applying, there are a few steps you can take to keep delays to a minimum:

  • Be organized. Get your material together before you apply.
  • Apply early. If you think you might want to work in Texas, start the process as soon as possible.
  • Read the directions carefully. A minor mistake can derail your application for months.
  • Follow-up. The application requires documents be sent by third parties. Follow-up on people and entities to ensure that documents have been submitted. It is also critical to follow-up with the Board on a regular basis.
  • Retain Documents. Keep a copy of your application, material submitted to the Board, and all the correspondence between you and the Board.
  • If you have a problem, get help. If you have significant issues, you need to get professional assistance from someone with experience before the Texas State Board of Acupuncture Examiner. Some of the rules, the process, and just getting prepared require the time and attention of someone who has experience with the system.

If an applicant is unhappy with a denial or having their license granted under restrictions, they have the right to seek a reconsideration or appeal the matter. These are complicated proceedings, handled by administrative committees with very specific rules and procedures. By working with a legal professional who is familiar with how Texas acupuncture licenses are issued and what will constitute a valid appeal, you can usually facilitate a smooth path forward.

Investigations, Hearings & the Disciplinary Process

Just like other licensed professionals within the medical field, acupuncturists can face complaints and unprofessional conduct accusations from various sources. They can be made anonymously or from competitors, colleagues, former employees, insurance companies, law enforcement agencies, and of course patients and family members of patients. The procedures and governing law for handling acupuncture complaints and enforcing the law are patterned after those of the Texas Medical Board. Complaints can cover a wide variety of issues, from relatively minor to serious charges, including:

  • Violating the Acupuncture Practice Act or an agency rule
  • Providing inadequate care
  • Failing to follow proper needle protocol
  • Unethical/ Unprofessional conduct
  • Violating patient confidentiality
  • Being convicted of a crime
  • Inappropriate patient relationships

While there are quite a few variations and combinations of things that can take place, we have provided a general summary of the stages involved in the disciplinary process. There are many aspects that hinge on specific facts and most acupuncturists under scrutiny by the Acupuncture Board will want to seek experienced legal counsel from a Texas licensure defense attorney to get a better understanding of how they can achieve the best possible outcome.  

Preliminary Investigation

The disciplinary process typically starts out with a basic letter to the licensee, generally stating that an allegation has been made and there is a possible violation of the Acupuncture Practice Act or agency rule. This letter is a “preliminary” investigation letter (sometimes called an “inquiry letter”), and usually comes from the Director of Enforcement of the Medical Board who functions in the same role for the Acupuncture Board. This letter indicates that a complaint has been made and demands a response by a firm designated deadline.

Responding in a timely and professional manner is important to show respect for the process and to explain your side of the matter. Besides the short deadline, another problem is that the preliminary investigation letter is usually vague, making a specific response difficult. An experienced acupuncturist license defense attorney can help craft an effective response.

Formal Investigation

After the licensee has responded to the preliminary investigation letter, the case may be dismissed or an official investigation started. If an investigation is launched, the licensee (and their attorney) will receive a notice of investigation with the name and contact information of the assigned field investigator, who will usually have a nursing or other healthcare background. This letter will ask for a narrative explanation to the allegations as well as completion of a two-page practice questionnaire. A blank records affidavit is also provided for any pertinent treatment records that the licensee chooses to provide. An acupuncturist can expect to have two to three weeks to provide this information.

The investigation process can be quite slow, but great care should be taken when filling out any paperwork that might ask about an investigation and its status. Inaccurate answers can lead to allegations of fraud, unprofessional conduct, and, in some instances, an allegation of providing false information to the Board. It is also best to check to see if the investigation has triggered mandatory reporting to malpractice carriers or anyone else with whom the acupuncturist does business. 

If a determination is made that no violation occurred, the agency staff can process the case for a dismissal. If dismissed, the licensee will be notified by mail, but if there appears to be a violation, the licensee will be notified in writing that an informal settlement/show compliance conference (ISC) will take place on a specified date in Austin.

Informal Settlement / Show Compliance Conference (ISC)

If an ISC is scheduled, the licensee will have to travel to Austin to meet with Board representatives. Your lawyer may be present with you to address allegations. These meetings are confidential, but the complainant can show up to give a statement and then leave the room. The complainant may also submit a written statement. These meetings usually involve an exchange of information, questions, answers, and discussions about the case before the members deliberate and reach a determination. This decision can be to recommend a dismissal, defer a decision until more information is gathered, pursue a temporary license suspension or restriction through an expedited hearing, take the case to a Contested Hearing at the State Office of Administrative Hearings (SOAH), or resolve the case through a proposed “Agreed Order.” Most cases are resolved either by a dismissal or through an Agreed Order.

Agreed Order

An Agreed Order is the most common form of disciplinary action and involves a document laying out the basic terms for consideration, execution, return, and compliance. An experienced acupuncturist license defense attorney can frequently negotiate the best possible language, terms, and duration. The actual discipline can range from fines to the revocation of a license and everything in between (i.e., fine and a reprimand, continuing education, chart monitoring, drug testing, inpatient treatment, practice restrictions, etc.).

If an agreed order is recommended, findings of fact and conclusions of law are worked out in writing along with the terms of discipline. The acupuncturist is required to sign the order, have the order notarized, and return it to the agency by any designated deadline. The full Board subsequently considers and approves such orders, but sometimes orders are rejected with other terms offered or another ISC required. If the ISC panel is unable to figure the case out or the licensee rejects any proposed agreed order, the case is typically referred to the State Office of Administrative Hearings (SOAH) for a full contested hearing. If the ISC panel believes that the licensee is a danger to patients, a temporary suspension/restriction hearing may be convened on an expedited basis.

Temporary Suspension or Temporary Restriction Hearings

If an acupuncturist is thought to pose a continuing threat to the health and safety of patients, they can be subject to an expedited process that may result in a temporary suspension or restriction of their license. The process can vary and the temporary action can be imposed without notice or hearing if the case is serious enough. Thereafter, the acupuncturist must contend with the Acupuncture Board and SOAH to have the matter litigated to conclusion, while suspended or restricted, and possibly without practice income or with only reduced income. Usually, an acupuncturist is given notice and is permitted to appear before a panel of three Acupuncture Board members.

If not suspended or temporarily restricted, the case goes through the regular investigation channels and possible scenarios for resolution. If temporarily suspended or restricted, an agreement can sometimes be worked out, but if not, the licensee must go through the SOAH process or seek appropriate relief from the Travis County District Court. Oftentimes, the only option is a contested SOAH hearing, while remaining suspended or restricted until a final decision is reached.

State Office of Administrative Hearings (SOAH) Hearings

If the matter is unresolved at the ISC or a licensee is temporarily suspended or restricted, the case goes to the State Office of Administrative Hearings (SOAH). The first phase of which is Discovery – the pre-hearing exchange of information. This is much like in a malpractice suit or other civil litigation, including depositions and requests for documents. While there is the possibility of being fined and assessed hearing costs, the case is about whether the licensee violated the standards of care or other governing laws, the ability to continue to practice, and under what terms and conditions for continued practice, if any. An Administrative Law Judge (ALJ) is assigned and the proceeding is like a bench trial without a jury. Witnesses are called to testify, records are put into evidence, and legal arguments made. After the hearing, the ALJ will issue a Proposal for Decision (PFD) analyzing the evidence and recommending a decision to the agency.

After the SOAH hearing, the issuance of the PFD, and the filing of responsive documents, the full Acupuncture Board will hold a hearing on the PFD in which counsel for both sides argue their positions. The Board may ask questions, review the record, and deliberate. Ultimately, the Board either votes to adopt the PFD, adopt something different, or dismiss the case even if the PFD recommends action. At this point, the acupuncturist is subject to the decision handed down and the resulting discipline. Dismissals are rare after a SOAH hearing and actions can include restrictions on the acupuncturist’s license, a suspension of the acupuncturist’s license, or a revocation of license.

If an acupuncturist disagrees with the Board’s final order, the acupuncturist may appeal to the Travis County District Court. Usually, all administrative remedies must be exhausted before the case goes to court. Given legal deadlines that are very short, it is important to act quickly in these situations with help from a professional license defense attorney knowledgeable in appeals.

Compliance & Reporting of Disciplinary Actions

Once under an order from the Acupuncture Board, the licensee must cooperate with the agency’s Compliance Department. This department has compliance officers who function much like probation officers to check up on licensees to make sure they are adhering to the terms of the order (i.e., drug screens, record keeping, chaperones, prescribing limitations, etc.). Apparent violations of an order result in an additional ISC proceeding or a temporary suspension/restriction hearing and may also lead to a SOAH hearing. Sometimes the order itself provides for additional disciplinary action if it is violated.

Most disciplinary actions, with very limited exceptions, are considered a public record and are published on the Board’s website and in the Texas Medical Board newsletter. The action is also usually circulated to other medical licensing boards and to media outlets through press releases.

Defend Your Career with Our Acupuncturist License Defense Attorneys

When licensed acupuncturists are called to appear before their Texas regulatory board, many believe they will be speaking to empathetic colleagues, who understand what their profession is like and how significant their license is to their practice. However, organizations like the Texas Acupuncture Board are primarily concerned with the public well-being and public perception. Your license and ability to practice will not necessarily be their top priority. Moreover, Texas licensing agencies adhere to complex and independent regulations for how they function and discipline offenders. This can make raising a defense to claims against you a significant challenge.

Professional health license defense is a highly-focused legal area and it takes tremendous patience, experience, and specific knowledge to successfully advocate for your professional and long-term interests. The acupuncturist license defense lawyers of McDonald, Mackay, Porter & Weitz, LLP. have all previously held senior positions with state licensing agencies and can provide keen insight into what is involved and what it takes to defend the credentials that you worked hard to achieve.

Whether you are having trouble getting a Texas acupuncturist license, were falsely accused of inaccurate billing, were alleged to have practiced in an unacceptable manner, or a criminal charge is jeopardizing your license, we will review the situation with you, help compile materials that support your position, and aggressively pursue the best possible result.

Contact us today to schedule an initial consultation with a dedicated Texas medical license defense lawyer.