May 11, 2005 - Sacramento, CA - CAOMA representatives met with Senator Figeuroa today to discuss amending SB 233.

Senator Figueroa spent nearly two hours in her Capitol office today with a small group of representatives of the California acupuncturist profession. The purpose of the meeting was to discuss her legislation, Senate Bill 233, and try to work out a compromise. Senate Bill 233, as currently written, would "sunset"  the California Acupuncture Board and restrict the diagnostic authority of acupuncturists. The Senator had called for the meeting a week after a CAOMA-sponsored protest rally at the state capitol, and after the Senator received numerous opposition letters from members of the profession. The Senator invited acupuncturists Michelle Lau, President of CAOMA, Brian Fennen, Executive Director of CAOMA, and Rona Ma, President of UCPCM and a resident of the Senator's district in Fremont. Michelle Lau and Rona Ma had met with the Senator in her district two months ago to discuss the Senator's position on the licensure of acupuncturists and her issues with the Board. The Senator insisted that no staff or lobbyists be present at this meeting.

The following is a summary of the meeting, as reported by Michelle Lau, Brian Fennen, and Rona Ma:

Senator Figueroa proposed draft amendments to SB 233 that would sunset and reconstitute the Board with a new executive officer, new board members, and a public member majority. Additionally, she wished for the Department of Consumer Affairs (DCA) to have veto power over whomever the Board chooses to hire as their new executive officer. She stated that these positions were “non-negotiable.”

We explained our position that CAOMA is opposed to sunsetting the Board, as the only real problems the Board had experienced were due to failures of Governors to make appointments to the Board in a timely manner, to budget and hiring freezes, to bias by some DCA administrative staff, and especially to heavy opposition lobbying by the Council of Colleges organization. We suggested that it was best to try to fix those problems and to correct the misconceptions about the Board and its Executive Officer that had been built upon unsubstantiated claims. When we suggested discussing the list of misconceptions, beginning with needle safety, the Senator said that she did not wish to discuss the details or the past, but wanted to start over with a “clean slate,” particularly with a new Board.

The Senator was adamant that she thought that the Board's Executive Officer should be able to lead and direct the Board to make good decisions in cooperation with the DCA administration. She  noted that Board meeting minutes recorded instances when the Board had voted against the recommendations of the Executive Officer. The Senator suggested that this demonstrated weakness on the part of the Executive Officer and bad decision-making on the part of the Board, and that they both needed changing.

When we further protested that the Acupuncture Board would be the only health board to be sunsetted, she pointed to the fact that she had sunset and re-constituted the Dental Board, and almost did the same to the Medical Board, because they had serious problems.

Given that she had stated that her position on sunsetting the Board was “non-negotiable,” we asked what the process would be for reconstituting the Board. Who would regulate the profession during the transition? How could we be assured that the Governor would make board appointments quickly? With three brand new board members, why couldn't they remain? What happens when the DCA vetoes the person the Board wants to hire? Isn't it more important for the Executive Officer to get along with the Board?

The Senator said that it was likely that the current staff would just be transferred to the DCA, and continue operations as a bureau during the transition. If the Governor did not make timely appointments, then language could be put into the bill to allow the Legislature to do so. The Senator said that she wanted the new Board to start with a clean slate, with no history, so current Board members would not be allowed to remain. If the DCA vetoes the Board's choice of an Executive Officer, then the Board would have to recommend another. She thought that it was most important for executive officers to get along with the DCA.

The Senator offered to amend the diagnosis language of her bill to modify the California Medical Association (CMA) amendment, and was hesitant to match the current language contained in Assembly Member Yee's AB 1113, even though she is a co-author of AB 1113. Additionally, she wanted some kind of restrictive language, providing a sample that would allow only the diagnosis of conditions that acupuncturists could treat. We explained our concerns about any limitations on diagnosis, and that they had been amended at the behest of the CMA, which has policies to restrict the scopes of practice of  competing health care professions. We argued that the amendment to Assembly Member Yee's AB 1113 was purposely vague because it was too problematic to define any kind of restrictions.

We explained that defining diagnosis within the definition of a treatment procedure (as SB 233 is currently written), or limiting diagnostic authority to conditions that are treatable within the scope of practice (which was being proposed by the Senator) - still would require somebody to diagnose the patient's condition before it could be determined whether it was treatable by an acupuncturist. We diagnose, then plan treatment, and/or refer, as indicated. She commented that this seemed very analytical, and we responded that the CMA attorneys would analyze it and use it against us. In the end, the Senator seemed more open to the idea of using the AB 1113 diagnosis language as it is, but left her commitment somewhat ambiguous.

The draft proposal that the Senator had prepared for us stated the following:

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Reconstitute the Board.  No current members can be on the new Board.  New Board must hire a new Executive Officer.

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Revise the make-up of the Board so that it has a public majority.

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Authorize the Department of Consumer Affairs to have the ability to disapprove of the hiring of an Executive Officer of the Board.

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Redefine the amendments taken at the Business and Professions hearing to clarify concerns. Sample language might be something like this:

“Nothing in this section shall be construed to authorize an acupuncturist to diagnose any physical or mental disorder pursuant to Sections 2038 and 2052 if that disorder cannot be treated by the acupuncturist within the acupuncturist's scope of practice.”

At the end of the meeting, we informed the Senator that we needed to take this information back to our members for discussion. The Senator asked that we give her a decision by Monday, May 16. She further agreed that it was acceptable to her that we openly report on the meeting so that our organization and profession could make an informed decision.

Overall, the meeting was very cordial, and Senator Figueroa was straightforward with her opinions. We thanked the Senator for allowing us the time to meet with her to discuss these important issues, and told her that we would give her our response by Monday.

If you wish to send us a comment on the Senator's proposal, please do so by emailing us at action@caoma.org.

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