Opinion No.

Janet Parks, D.O.M., President Arkansas State Board of Acupuncture Related Techniques 1401 West Sixth Street Little Rock, AR 72201

Dear Dr. Parks:

I am writing in response to your request for an opinion on the following:

Our board is writing you to ask you for your opinion on the three enclosed questions. However, to preface these questions we would like to provide you with some background information. Auricular acupuncture is derived from Traditional Chinese Medicine. The therapy is used regularly in acupuncture treatments as a microcosm, or representative of the entire body. Most treatments involve the use of needles in the acupuncturist's office, and often involve the use of small seeds, pellets, or tacks taped to the ear which can stay on the ear for about a week to provide continuous stimulation of the ear points.

Recently, the practice of inserting surgical staples into patient's ears for the purpose of weight loss and smoking cessation has become extremely popular, and even featured on news programs. The staples stay in the patient's ears for weeks, months, or even a year. The risk of infection according to some medical practitioners can be high because the staples stay inserted deeply into the skin while the patient is outside the medical setting.

The Board of Public health has recently received complaints from MDs about infected ear stapling, and they have inquired of the acupuncture board regarding this practice.

A.C.A. Section 17-102-105(a) states, "The use of staples in the practice of acupuncture is unlawful."

Question 1. Can any healthcare professional use staples in acupuncture techniques for weight loss, smoking cessation, or other auricular treatments?

Question 2. Can any other person licensed, certified, or not, use staples in acupuncture techniques for weight loss, smoking cessation, or other auricular treatments?

Question 3. If either question #1 or #2 is answered in the affirmative, who is responsible for oversight and enforcement of this?

RESPONSE

In my opinion, with respect to Question One, the procedure of ear stapling is not, and cannot be an acupuncture technique in the State of Arkansas because the use of staples is expressly forbidden by law from being used. In my opinion, it appears the ear stapling procedures you describe fall within the definition of the "practice of medicine" under A.C.A. § 17-95-202(3) (Supp. 2005) and would be subject to regulation by the Arkansas State Medical Board. With respect to Question Two, if ear stapling procedures fall within the definition of the "practice of medicine," ear stapling could only be performed by individuals properly licensed by the Arkansas State Medical Board. With respect to Question Three, as noted in response to Question One, it is most likely that the Arkansas State Medical Board possesses the appropriate oversight and enforcement authority.

Question One: Can any healthcare professional use staples inacupuncture techniques for weight loss, smoking cessation, orother auricular treatments?

Initially, I must note that your question incorrectly assumes that the ear stapling procedure is an acupuncture technique. "Acupuncture" is defined in the Arkansas Code as:

[T]he insertion, manipulation, and removal of needles from the body and the use of other modalities and procedures at specific locations on the body for the prevention, cure, or correction of a malady, illness, injury, pain, or other condition or disorder by controlling and regulating the flow and balance of energy and functioning of the patient to restore and maintain health, but acupuncture shall not be considered surgery.

A.C.A. § 17-102-102(1) (Repl. 2002). As you correctly note in your request for an opinion, however, the Arkansas Code also specifies:

Acupuncturists shall use only presterilized, disposable needles in their administration of acupuncture treatments. The use of staples in the practice of acupuncture is unlawful.

A.C.A. § 17-102-105(a) (Repl. 2002) (emphasis added).

Thus, it is clear that no acupuncture technique in Arkansas may utilize staples. Id. Any use of staples would necessarily mean that the procedure was not an approved acupuncture technique as defined by the Arkansas Code. In response to your first question, therefore, in my opinion, "ear stapling" is not an acupuncture technique that may be used by licensed acupuncturists in the State of Arkansas under the plain and ordinary language of the A.C.A. § 17-102-105(a).

Your first question also inquires whether "any" healthcare professional can use staples "in acupuncture techniques" for weight loss or smoking cessation treatments. Arkansas Code Annotated § 17-102-311 (Repl. 2002), states "Nothing in this chapter is intended to limit, interfere with, or prevent any other class of licensed health care professionals from practicing acupuncture and related techniques when permitted by its state licensing board." As noted above, "ear stapling" is not an acupuncture technique because it uses staples. If your question is whether other health care professionals can perform ear stapling (given that ear stapling does not constitute "acupuncture"), it is necessary to review the statutes regarding the scope of the other health care professionals' practice. Other healthcare professions are included in Title 17 of the Arkansas Code including chiropractors, podiatrists, dentists, and doctors.

The practice of chiropractic is defined in the Arkansas Code as follows:

(A) "Practice of chiropractic" means the engagement in the diagnosis and analysis of any interference with normal nerve transmission and expression, and the procedure preparatory to and complementary to the correction thereof by an adjustment of the articulations of the vertebral column, its immediate articulations, including spinal adjustments, spinal manipulations, and spinal mobilizations, such as any type of pressure, force, thrust, or passive movement, singular or plural, applied to the spinal vertebrae or their adjacent articulations by hand or mechanical device or by other incidental adjustments, for the restoration and maintenance of health. The practice of chiropractic includes therapy, the normal regimen, and rehabilitations of the patient for the purposes of removing any injury, deformity, or abnormality of human beings without the use of drugs or surgery.

(B) The practice of chiropractic, as authorized under the provisions of this chapter, shall not include the performance of the duties of a midwife or obstetrician, therapy by use of ionizing radiation, incisive surgery, prescribing for or administering to any person any drug to be taken internally, or puncturing the skin for the purpose of introducing any substance into the body. Nothing herein shall prevent puncturing the skin for routine blood analysis, including red blood count, white blood count, differential and serology, in the practice of chiropractic for diagnostic purposes[.]

A.C.A. § 17-80-102(6) (Repl. 2002) (emphasis added). Although chiropractors are authorized under certain circumstances to perform acupuncture pursuant to A.C.A. § 17-102-311,¹ the definition of the practice of acupuncture, as discussed above, excludes the use of staples. In addition, the "practice of chiropractic" excludes procedures that involve piercing the skin of the patient, such as the procedure of ear stapling that pierces the skin of the patient to introduce and leave a staple in the patient's body.

Similarly, a podiatrist is limited to the "practice of podiatric medicine," A.C.A. § 17-96-301(a) (Supp. 2005), which is the diagnosis and treatment of "ailments of the human foot and ankle," A.C.A. § 17-96-101(2) (Repl. 2002). Dentists are limited to treating diseases, conditions, and disorders of the "oral cavity, maxillofacial area, and the adjacent and associated structures." A.C.A. § 17-82-102(1)(A)(i) (Repl. 2002).

The most applicable statute would appear to be the Arkansas State Medical Practices Act governing the Physicians and Surgeons. The "Practice of Medicine" is defined as follows:

"Practice of medicine" means:

(A) Holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, injury, deformity, or physical or mental condition, whether by use of drugs, surgery, manipulation, electricity, or any physical, mechanical, or other means whatsoever;

(B) Suggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition, or defect of any person with the intention of receiving, either directly or indirectly, any fee, gift, or compensation whatsoever;

(C) Maintaining an office or other place to meet persons for the purpose of examining or treating persons afflicted with disease, injury, or defect of body or mind . . . [.]

A.C.A. § 17-95-202(3).

As described in your request for an opinion, the ear stapling procedure is being marketed as a treatment for weight loss, smoking cessation, and other ailments. It appears that this procedure could be considered part of the "practice of medicine." If ear stapling is determined to be the "practice of medicine" under the Arkansas Medical Practices Act, the Arkansas State Medical Board would properly determine the licensure requirements for performing ear stapling. See A.C.A. §§ 17-95-303(2) (Supp. 2005) 17-95-401 (Repl 2002).

In my opinion, the procedure of ear stapling for the purposes you describe likely falls under the "practice of medicine" as defined by the Arkansas Code and would be subject to the rules and standards established by the Arkansas State Medical Board.

Question Two: Can any other person licensed, certified, or not,use staples in acupuncture techniques for weight loss, smokingcessation, or other auricular treatments?

As noted in response to question one, the procedure of ear stapling for health related purposes may fall within the definition of the "practice of medicine" as set forth in A.C.A. §17-95-202(3). If the State Board of Medicine were to determine that ear stapling is within the ambit of the "practice of medicine," A.C.A. § 17-95-303 would require that anyone performing ear stapling procedures be licensed by the Board.² Furthermore, as discussed in response to question one, the practice of acupuncture by a licensed acupuncturist or by another licensed healthcare professional pursuant to A.C.A. §17-102-311, may not include the use of staples.

In my opinion, it is unlikely that a person who is neither certified nor licensed as a healthcare professional may legally perform the procedure of ear stapling, when used for some palliative remedy such as weight loss or smoking cessation.

Question Three: If either question #1 or #2 is answered in theaffirmative, who is responsible for oversight and enforcement ofthis?

As noted in response to Question One, if the procedure of ear stapling is determined to be the "practice of medicine," then the Arkansas State Board of Medicine would properly be responsible for oversight and enforcement of the Board's policies pursuant to A.C.A. § 17-95-303.

Assistant Attorney General Joel DiPippa prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB: JMD/cyh

¹ Regarding chiropractors, A.C.A. § 17-102-311 states "However, a chiropractic physician shall be entitled to practice acupuncture as part of chiropractic practice after completing an education program in acupuncture from a college accredited by the Council on Chiropractic Education."

² This conclusion does not address ear piercing or body piercing for the purpose of body adornment by tattoo parlors or piercing shoppes. The former practice is apparently unregulated when performed with a single-use needle or stud that is propelled by a mechanical device. A.C.A. § 20-27-1502(5)(B) (Repl. 2005). The latter practice is regulated by the Division of Health of the Department of Health Human Services. See, e.g., A.C.A. §§20-27-1501 through -1509 (Repl. 2005).