| Yesterday, SB 233 (Figueroa) was amended with language proposed by the California Medical Association in order to further the financial interests of CMA's physician members by effectively reducing competition for government, and private health care reimbursement dollars. Such reimbursements always require a commonly recognized and authorized diagnoses, which the new amendments appear to prohibit. The CMA's argument for the amendment is that Asian medicine practitioners are incapable of the "sophisticated" and "complex analysis of symptoms" that a diagnosis requires. |
| The amendment also creates an internal conflict within SB 233, and other conflicts with the intentions of other laws. The Joint Committee has criticized the Acupuncture Board for its interpretations of acupuncturists' scope of practice, in spite of the fact that those interpreations have been based upon years of independent legal opinions, consistent with the law, and in the best interests of the California consumer. The amendments to SB 233 only serve to monopolize healthcare, drive up costs, and reduce acces to competent acupuncturists. |
| Specifically, SB 233 amends Sections 4927 and 4937 of the Acupuncture Licensing Act to read: |
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Nothing in this section shall be construed to authorize an acupuncturist to diagnose any physical or mental disorder pursuant to Sections 2038 and 2052. |
| The reference is to sections 2038 (diagnosis by physicians) and 2053 (unauthorized practice of medicine) of the Medical Practices Act, that read: |
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Section 2038. Whenever the words "diagnose" or "diagnosis" are used in this chapter, they include any undertaking by any method, device, or procedure whatsoever, and whether gratuitous or not, to ascertain or establish whether a person is suffering from any physical or mental disorder. Such terms shall also include the taking of a person's blood pressure and the use of mechanical devices or machines for the purpose of making a diagnosis and representing to such person any conclusion regarding his or her physical or mental condition. Machines or mechanical devices for measuring or ascertaining height or weight are excluded from this section. |
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Section 2052. (a) Notwithstanding Section 146, any person who practices or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or without being authorized to perform the act pursuant to a certificate obtained in accordance with some other provision of law is guilty of a public offense, punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the state prison, by imprisonment in a county jail not exceeding one year, or by both the fine and either imprisonment. (b) Any person who conspires with or aids or abets another to commit any act described in subdivision (a) is guilty of a public offense, subject to the punishment described in that subdivision. (c) The remedy provided in this section shall not preclude any other remedy provided by law. |
| Analysis of Amendments |
| SB 233 Misapplies the Medical Practices Act to Acupuncturists |
| Section 2038 is intended to apply to the licensure and regulation of licensed physicians and surgeons, as it states so clearly. As "used in this chapter" refers to [Division 2, Chapter 5, beginning with Section 2000 of the Business and Professions Code, which is known as the "Medical Practice Act." The Medical Practice Act is not intended to apply to individuals licensed under other chapters, such as Chapter 12, beginning with Section 4925 of the Business and Professions Code, known as the "Acupuncture Licensure Act." Cross-referencing the two chapters is not appropriate. |
| Section 2052 of the Medical Practice Act is primarily intended to prohibit unlicensed individuals from practicing medicine, and is not intended to apply to other licensed health care professionals, such as acupuncturists. Section 4935 of the Acupuncture Licensure Act similarly prohibits the unlicensed practice of acupuncture. |
| SB 233 Is Self-Contradictory |
| SB 233 already had been amended to include diagnosis inappropriately within the definition of acupuncture, which is a treatment procedure. Currently, sections 4927 and 4937 of the Acupuncture Licensing Act authorize acupuncturists to practice acupuncture "for the treatment of certain diseases or dysfunctions of the body." Under the April 18 amendment, SB 233 would authorize acupuncturists to diagnose "for the purpose of providing acupuncture treatment." The new May 3 amendment adds a reference to section 2038 of the Medical Practices Act that appears to state that acupuncturists would be prohibited to "ascertain or establish whether a person is suffering from any physical or mental disorder." |
| As such, SB 233 would simultaneously authorize acupuncturists to diagnose dysfunctions of the body, while prohibiting acupuncturists from diagnosing physical disorders. Common interpretation of the meaning of "dysfunctions of the body" would include "physical disorders," meaning the these two sections would be in direct conflict with one another. There is no other obvious interpretation. |
| SB 233 Reduces Existing Scope of Practice Without Justification |
| Assembly Bill 1391 (Torres), 1979, removed the prior referral and diagnosis requirement for the recently licensed profession, and required the newly formed Acupuncture Examining Comittee to report all complaints, disciplinary actions, and prosecutions to the Legislature for a period of five years, in order to monitor the newly established independence of the profession. Legal opinion confirmed that acupuncturists were authorized and expected to establish a diagnosis for their patients themselves. Since the prior diagnoses had been done in a universally standardized fashion, it was expected that acupuncturists would use the same intenational standards. In fact, it was noted that acupuncture training and examination in diagnosis had been added to the licensing requirements nearly immediately after the new law went into effect. |
| Since that time, tens or hundreds of thousands of physical disorders and conditions have been diagnosed by acupuncturists, and there have been few reports of serious diagnosis-related incidents since that time. Acupuncturists commonly diagnose all sorts of diseases, dysfunctions, disorders, conditions, etc, prior to rendering treatment or refering patients to healthcare specialists. |
| SB 233 simply seeks to eliminate commonly accepted diagnostic practices without evidence of safety issues or any other reasons to justify this change. |
| SB 233 would effectively put acupuncturists out of private practice and out of business |
| Except in cases of an emergency, commonly accepted standards of practice for all of healthcare require an examination and diagnosis before determining a treatment plan, writing a prescription, or providing treatment. All government-sponsored and private healthcare plans require a diagnosis prior to authorizing treatment. All government-sponsored and private healthcare plans require treatment authorization prior to reimbursement, except in emergency cases and other special circumstances. SB 233 would bring into question an acupuncturist's authority to render a proper diagnosis, resulting in all government-sponsored and private healthcare plans requiring a prior diagnosis or referral from another diagnostician, such as a physician or chiropractor, before a patient could be seen and treated by an acupuncturist. The effective result of such policies would be to put acupuncturists out of business, since the majority of acupuncturists business is the result of direct access and self-referal. |
| The primary purpose of the CMA and AMA policies regarding diagnosis are to control access to the provision of any and all healthcare services and access to any and all government-sponsored and private healthcare dollars. SB 233 supports such a monopoly, and would result in increased costs in the provision of acupuncture-related healthcare services, as was the case prior to 1980, when physicians charged referral fees to send patients to acupuncturist. |
| SB 233 Violates Legislative Findings of SB 577 of 2002 and the Intentions of Section 2053.5 of the Medical Practices Act |
| The enactment of Sections 2053.5 and 2053.6 of the Medical Practices Act by Senate Bill 577 (Chapter 820, 2002), authored by former Senator and President Pro-Tem of the California State Senate, John Burton of San Francisco, stated that: |
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"The Legislature further finds that these nonmedical complementary and alternative services do not pose a known risk to the health and safety of California residents, and that restricting access to those services due to technical violations of the Medical Practice Act is not warranted." |
| Section 2053.5 states that |
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"Notwithstanding any other provision of law, a personwho complies with the requirements of Section 2053.6 shall not be in violation of Section 2051, 2052, or 2053 unless that person does any of the following:" including |
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"5) Willfully diagnoses and treats a physical or mental condition of any person under circumstances or conditions that cause or create a risk of great bodily harm, serious physical or mental illness, or death." |
| Section 2053.6 reads that |
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"(a) A person who provides services pursuant to Section 2053.5 that are not unlawful under Section 2051, 2052, or 2053 shall, prior to providing those services, do the following:" including |
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"(1) Disclose to the client in a written statement using plain language the following information: |
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B) That the treatment is alternative or complementary to healing arts services licensed by the state. |
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C) That the services to be provided are not licensed by the state." |
| It would seem that, were a Licensed Acupucturist to attempt to "diagnose physical or mental conditions of any person" within the exemption allowed by Sections 2053.5 and 2053.6, they would be required to make false statements that their healing arts are "not licensed by the state," when, in fact, they are. |
| SB 233 Violates Legal Directive of the Joint Committee on Boards, Commissions, and Consumer Protection |
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Section 473.4 of the Business and Professions Code establishes the oversight authority of the Joint Committee on Boards, Commissions, and Consumer |
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"473.4. (a) The Joint Committee on Boards, Commissions, and Consumer Protection shall evaluate and determine whether a board or regulatory program has demonstrated a public need for the continued existence of the board or regulatory program and for the degree of regulation the board or regulatory program implements based on the following factors and minimum standards of performance:" including |
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(10) Whether the scope of practice of the regulated profession or occupation contributes to the highest utilization of personnel and whether entry requirements encourage affirmative action. |
| It would seem that the the scope of practice of acupuncturists "contributes to the highest utilization of personnel" when consumers have access to acupuncturists with the most comprehensive scope of practice allowable under the authority of law, and when such a scope of practice by supported by comprehenvise training requirements. |
| Why would consumers of health care services possibly wish to see multiple primary care and specialty practitioners before actually getting a proper diagnosis and receiving proper treatment for their common health conditions? In this regard, it would seem that the Acupuncture Board has actually been conservative in their determination of the scope of practice of acupuncturists, and could, in fact, be more expansive in their interpretation of the statutes. |
| The directive given by the Legislature to the Joint Committee would seem to steer it towards expanding, rather than contracting, the scope of practice of Licensed Acupuncturists, leaving us to believe that this Joint Committee is in conflict with their very own directive. |
| How to Oppose SB 233: |
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Call, write and fax a letter, and e-mail your position on SB 233 to your elected legislators, stating your reasons. Keep your letter to one page only. |
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Join, participate, and contribute to CAOMA's Legislative Action Committee, and help us rally legislative opposition against this bill, and get the author to amend it. |
| See Sample Letter Opposing SB 233 - May 4 |
| Go to the California Legislation Pages |