January 28, 2005 - Sacramento, CA - CAOMA President Michelle Lau provided oral testimony and Executive Director Brian Fennen provided written testimony to California's Little Hoover Commission to oppose Governor Schwartzenegger's unfounded proposal to eliminate healthcare licensing boards.

January 28, 2005

Michael E Alpert, Chairman

Little Hoover Commission

925 L Street, Suite 805

Sacramento, CA 95814

	Re: Governor’s Reorganization Plan 1: Reforming California’s Boards and Commissions.

	Oppose elimination of Acupuncture Board

Dear Mr. Alpert and Commissioners:

Thank you for the opportunity to comment on the Governor’s Reorganization Plan 1: Reforming

California’s Boards and Commissions. We feel that the Governor’s plan makes little sense in its

recommendation to eliminate the Acupuncture Board and other health care boards when

compared to the California Performance Review Report, which recommends retaining the

licensing boards for the health care professionals. While the Governor’s Plan cites the

methodology, criteria, and recommendations of the California Performance Review numerous

times, it draws significantly different conclusions and recommendations, without explanation or

rationale for the those differences.

The current form and structure of the Acupuncture Board is rational, well-conceived, and would

be smoothly functioning if it were not for the delays in the Governor appointments to the Board.

The Acupuncture Board serves the meaningful public purpose of protecting the health of

California consumers and of regulating a unique profession. Acupuncturists diagnose illness,

develop treatment plans, and perform traditional Asian healing procedures, such as acupuncture,

herbal medicine, and other therapies on those patients. Prior to licensure of acupuncturists, the

public was exposed to potentially incompetent and dangerous practices by individuals with

uncertain skills and credentials. The Acupuncture Board serves the function of setting and

maintaining standards of education, examination, and practice of a traditional branch of medicine,

so that the public can rest assured that those individuals licensed by the Acupuncture Board are

qualified to perform independent health care services, and can recognize conditions that

necessitate referral to qualified specialists from other branches of medicine. Without regulation by

an accessible and accountable agency, such as the Acupuncture Board, the public’s health would

be put at increased risk.

In regards to accessibility and accountability, the Acupuncture Board holds regular public

meetings, efficiently schedules required regulatory public hearings to coincide with it board

meetings, takes recommendations and comments from the public patiently and seriously, and

forms task forces and workgroups when needed. The public can contact the Board by phone, fax,

or email. The Board’s website contains valuable information for the public and for licensees,

including lists of licensees with Board actions against them. The Legislature thoroughly reviews

the Acupuncture Board every three or four years through the sunset review process. The

Administration thoroughly reviews the Acupuncture Board’s regulatory proposals and annual

budget. The Governor, Senate, and Assembly all make direct appointments to the Acupuncture

Board. In other words, the Acupuncture Board is both highly accessible and highly accountable.

Unfortunately, the Governor’s Plan to move the Acupuncture Board into a departmental bureau

would make it less accessible, less accountable, and potentially less user friendly as it loses touch

with the public and the profession it regulates. We strongly recommend opposing the Governors

proposal to eliminate the Acupuncture Board.

The Little Hoover Commission staff has asked us to answer very specific questions regarding the

Acupuncture Board:

What considerations resulted in the current organizational design?

	1. The licensing of a unique independent primary health care profession.

	2. 100% of revenue are derived from the regulated profession licensing and examination fees.

	3. Protecting pubic safety and promoting public welfare through enforcement of education,

	examination, and practice standards are major responsibilities.

	4. Various laws require legislative oversight, administrative oversight, direct public access, public

	hearings and public notices, and website access.

	5. Years of organizing and re-organizing the functions of the Acupuncture Board.

Background:

The Acupuncture Board, currently an independent board within the Department of Consumer

Affairs, is tasked with regulating an independently licensed primary health care profession, and

was originally legislated as the Acupuncture Advisory Committee to the Medical Board in 1975.

The Medical Board provided guidance, oversight, administrative support, and medical expertise to

the Committee for years. The Committee had a set-back in the late 1980s, as a corrupt board

member was found to have criminally abused his licensing examination oversight authority. The

finding that he had profited from the sale of exams resulted in a legislative requirement that the

Committee contract with an independent party to prepare and administer the licensing

examination. The California Acupuncture Licensing Examination has become a model of integrity,

credibility, and reliability since that time.

Gradually, the Committee acted more independently as acupuncturists gained broader acceptance

as a unique and credible health care profession. The Committee was given full autonomy from the

Medical Board as a result of the legislative sunset review process in 1997-1998. The legislative

sunset review process also resulted in a reduction of the number of board members, from eleven

to nine, and to a majority of non-licensee members.

The Acupuncture Board has had various subcommittees over the years, and has efficiently

streamlined them into four standing subcommittees: Executive, Enforcement, Education, and

Examination. Education and examination of license applicants is commonly accepted as the best

method to assure public safety and professional competency. When those measures fail, and

particular licensees are found to endanger the public, enforcement becomes necessary. Thus, the

three specialty subcommittees are a direct result of the primary functions of the Board. Eight staff

members are similarly organized and supervised by an Executive Officer. Form followed function.

How have those considerations changed?

	1. Scope of practice, educational standards, examinations, public use of licensed services, and

	enforcement cases have all expanded since licensing of acupuncturists was first legislated,

	necessitating re-evaluating all standards on a regular basis.

	2. The Board has issued over 10,000 licenses since 1976, with increasing numbers each year,

	necessitating thorough and efficient processing of licensee applications.

	3. The public expectation for the delivery of high quality health care services has gradually risen in

	the three decades since acupuncturist legislation first passed, necessitating that the Board reevaluate

	and upgrade standards on a regular basis.

	4. Numerous instances of dangerous and contaminated herbal products have surfaced over the

	past decade, necessitating further assurance that licensees are well trained and knowledgeable in

	herbal medicine.

	5. Contradictory arguments have been made by stakeholders to significantly improve educational

	and examination standards in order to improve quality of services, and by other stakeholders to

	lower educational and examination standards in order to increase diversity and variation in

	licensees’ practices. This has necessitated that the Board hold numerous hearings on the subject in

	order to separate political agendas from evidence-based recommendations.

While the three major board functions - education, examination, and enforcement of practice

standards - have periodically experienced challenges, the Acupuncture Board has built upon those

experiences to develop a smoothly functioning organization. As issues have arisen, the Board has

convened numerous task forces, workgroups, and subcommittees to address those issues. Pubic

hearings on regulatory changes and other matters are efficiently held in conjunction with regularly

scheduled board meetings.

It has been beneficial to the Acupuncture Board that the Executive Officer position has been

stable for eight years, and that one board member has served continuously for a similar period of

time. Many boards experience a loss of institutional memory with frequent staff and board

member turnover. Board members, essentially volunteering for non-permanent public service

positions, take a long time to learn and understand the intricacies of laws and regulations, meeting

protocol, and licensee oversight. The greatest difficulties faced by the Acupuncture Board in

recent years has resulted from the two recent Governors failure to fill empty board seats in a

timely manner, resulting in delays in important board actions and the timely implementation of

legislative and regulatory changes. The current Governor additionally ordered the Acupuncture

Board to delay compliance with new laws last year by prohibiting the Board from adopting new

regulations by the date required by statute.

What are the strengths and weaknesses of the current structure?

Strengths of the current board structure:

1. Experienced and Efficient Staff - Acupuncture Board has competent and experienced staff

2. Functional Organization - the Board is functionally organized and efficient, and holds annual

strategic planning sessions

3. Public Notices and Regular Meetings - The Acupuncture Board holds regular pubic Board

meetings that are required to be scheduled and noticed with agendas. Meeting schedules, agendas,

and minutes are posted on the Board's website, and mailed to interested persons and

organizations. Regulatory changes require public hearings which are also noticed in advance for

public comment. The Board has been responsive to public comment, criticism, and

recommendations, and has organized numerous task forces and workshops.

4. Accountability to Legislative Oversight - The Acupuncture Board is periodically reviewed in

open public hearings by the Joint Legislative Sunset Review Committee, which holds the

Acupuncture Board accountable to its constituency. Additionally, the Senate and Assembly have

appoint one board member each.

5. Accountability to Administrative Oversight - the Board's actions and budget are held

accountable to, and regularly scrutinized by, the Department, Agency, and Governor.

6. Accessibility to the Public - the Acupuncture Board's website is very useful, with easy access

to license verification, complaint forms, and other useful public information. Members of the

public have ready access to knowledgeable and informative staff via phone. Members of the public

can submit comments, complaints, and testimony via mail, fax, email, and phone.

Weaknesses of the current board structure:

1. Understaffing - Enforcement is understaffed due to Governors Davis' and Schwartzenegger's

imposition of hiring freezes. The growing number of regulated licensees has resulted in increased

revenues and a gradually growing number of enforcement cases.

2. Budgetary Micromanagement - The Acupuncture Board's budget is micromanaged by

Department/Agency/Governor, and budget freezes have limited the hiring of new staff, restricted

the locations of public meeting, and limited public access. Traveling restrictions prohibited staff

from traveling and attending important meetings with regulators from other states. The Board's

revenues are independent of the State's General Fund, as revenue is derived entirely from licensing

fees. The Governor ordered the taking of reserve funds from the Acupuncture Board in 2004.

This was done without authorization of the Board, and without public discussion or consideration

for alternative uses of the money, such as the recommended hiring of additional enforcement staff,

or refunding the unused fees to licensees.

3. Lack of a Quorum - The new definition of a quorum legislated in 2002, combined with a

dependence upon Governor for board appointments has resulted in the Board being unable to

form a quorum, hold meetings, or participate in a formal decision-making process on matters of

importance, including taking action on some enforcement cases.

What are the strengths and weaknesses of the proposed structure?

Strengths of the Governor’s proposed structure:

None have been identified.

Weaknesses of the Governor’s proposed structure:

1. Reduced Public Accessibility - Bureaus do not have regularly scheduled public meetings.

There are no meeting minutes to inform the public about their decision-making process. The

public must demand that bureaus hold hearings on regulatory change. There is little accountability

or incentive to respond to public input in a meaningful way. Without public notice, participation,

and information, bureaus can become isolated and out of touch with those they serve to protect

and regulate.

2. Reduced Legislative Oversight - The Legislature would not have the opportunity to appoint

bureau members.

3. No Projected Benefits or Justified Rationale - The Governor’s Plan, unlike the California

Performance Review Report, contains no estimates of savings, increased efficiency, or

improvements in public protection. The reduced public access and accountability under the

Governor’s Plan seems to conflict with the changes recommended in the Governor’s Plan. A

desire to “blow up [government] boxes” hardly seems to justify shuffling board boxes to bureau

boxes.

The California Performance Review

The California Performance Review utilized over two hundred state employees to evaluate 339

boards and commissions, to recommend eliminating 117, and to retain 222 of them. The

Acupuncture Board was one of those recommended for continuance, along with most other

health care licensing boards, and to be placed under the administration of the Center for Quality

Assurance, Health and Human Services Department. (Exhibit 3, Form Follows Function,

California Performance Review, p.13). We concur with the CPR recommendations on this

matter, and disagree with the Governor's proposal to eliminate the Acupuncture Board and other

health care professional licensing boards. (Form Follows Function, California Performance

Review, pp 123-124,147,169).

The Governor’s Plan

The Governor’s Plan argues that accessibility and accountability are major criteria by which to

judge boards and commissions, which we agree with. The Governor suggests that, while boards

and commissions are legally bound to hold open public meetings, it may be better not to require

any public meetings, but to be satisfied with his recommendation that bureaus under his control

consider holding public workshops. The Acupuncture Board has held numerous public workshops

and task forces over the years per existing policy, so this is not a change. The Governor suggests

that he should be held accountable to the voting public for any failures of his administrative

bureaus, but not the bureaus themselves. (Governor’s Reorganization Plan 1: Reforming

California’s Boards and Commissions, p. 8). This seems to be a reduction in accountability, not

an increase.

When arguing for the elimination of independent health care licensing boards, the Governor

suggests that only administrative law judges are qualified to consider complaints against licensees,

and that boards are likely to have conflicts of interest. (Governor’s Reorganization Plan 1:

Reforming California’s Boards and Commissions, p. 12). We believe that it is not possible for a

single panel of administrative judges to be experts in the intricacies and standards of practices for

accountants, physicians, engineers, contractors, acupuncturists, and other professions, and that

allowing a panel of judges to weed through hundreds of consumer / patient complaints to find a

few legitimate complaints does not seem efficient at all. We would like to see this

recommendation clarified and publicly debated before being implemented.

Should the Commission have any further questions, please contact us. We look forward to your

report and recommendations on the Governor’s Plan.

Sincerely,

Brian C. Fennen, L.Ac, QME, OBT, Executive Director