BILL ANALYSIS
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|Hearing Date:January 14, 2002 |Bill No:SB |
| |577 |
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SENATE COMMITTEE ON BUSINESS AND PROFESSIONS
Senator Liz Figueroa, Chair
Bill No: SB 577Author:Burton
As Amended:April 19, 2001 Fiscal:No
SUBJECT: Health: complementary and alternative health care
practitioners
SUMMARY: Provides that a person is not in violation of
specified provisions of the medical licensing law that
prohibit the practice of medicine without being licensed as
a physician, so long as the person does not engage in
specified acts and also discloses to a client that he or
she is not a licensed physician.
Existing law (the Medical Practice Act):
1)Regulates the practice of medicine in this state and
prohibits persons who are not licensed as physicians from
engaging in certain activities that constitute the
practice of medicine.
2)Defines the practice of medicine for licensed physicians
and surgeons as the use of drugs or devices in or upon
human being and the severing or penetration of tissues of
human beings, and the use of any and all other methods in
the treatment of diseases, injuries, deformities, and
other physical and mental conditions. [B&P Code Section
2051]
3)Specifically provides that any person who practices or
attempts to practice, or advertises or hold himself or
herself out as practicing, any system or mode of treating
the sick or afflicted, 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
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a valid license as a physician, or without being
authorized to perform such act pursuant to a license
obtained in accordance with some other state law - is
guilty of a misdemeanor. [B&P Code Section 2052]
4)Specifically provides that any person who willfully,
under circumstances or conditions which cause or create
risk of great bodily harm, serious physical or mental
illness, or death, practices or attempts to practice, or
advertises or holds himself or herself out as practicing,
any system or mode of treating the sick or afflicted in
this state, or 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 a valid
license as a physician, or without being authorized to
perform that act pursuant to a license obtained in
accordance with some other state law - is punishable by
imprisonment in the county jail for not more than one
year or in state prison. [B&P Code Section 2053]
This bill:
1)Notwithstanding any other provision of law, provides that
a person who discloses to a client that he or she is not
a licensed physician shall not be in violation of the
specified provisions of the Medical Practice Act as
previously stated (re: the illegal unlicensed practice of
medicine) unless that person does any of the following:
a) Conducts surgery or other procedure that punctures the
skin or harmfully invades the body.
b) Administers or prescribes x-ray radiation to another
person.
c) Prescribes or administers legend drugs or controlled
substances to another person.
d) Recommends the discontinuance of legend drugs or
controlled substances prescribed by an appropriately
licensed practitioner.
e) Willfully diagnoses and treats a physical or mental
condition of any person under circumstances or conditions
that cause or create great bodily harm, serious physical
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or mental illness, or death.
f) Holds out, states, indicates, advertises or implies to
a client or prospective client that he or she is a
physician or surgeon.
2) Makes certain legislative findings regarding: (a) the
large number of
Californians currently receiving health care services
from complementary and
alternative health care practitioners, (b) that
despite such high utilization the
provision of these services may be in technical
violation of the Medical
Practice Act (i.e., the illegal practice of medicine
without a medical license,)
and subject to fines, penalties, or restriction of
practice even though the
practices were not demonstrated to be harmful to the
public.
3) States as Legislative intent that: (a) enactment of
the bill is to facilitate
access to complementary and alternative health care
practitioners who are
not providing services that require medical training
and credentials, (b) these
nonmedical complementary and alternative services do
not pose a risk to the
public health and safety, and (c) restricting access
to these services due to
technical violations of the Medical Practice Act is
not warranted.
FISCAL EFFECT: Unknown. This bill has been keyed as
"Fiscal Committee: "No" by Legislative Counsel, and if
passed would next go to the Senate Floor.
COMMENTS:
1.Purpose. This bill is sponsored by the California Health
Freedom Coalition to amend the Medical Practice Act so
that practitioners of Complementary and Alternative
Medicine will not be in violation of the Act's
prohibition against practicing medicine without a medical
license (license as a physician and surgeon) - so long as
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the practitioner tells his or her clients he or she is
not a licensed physician and surgeon, and so long as he
or she does not do specified types of medical treatment
(e.g. surgery, radiation therapy, prescribing
prescription drugs, etc.)
2.Background. According to various reports and studies,
including a recent study published by the New England
Journal of Medicine, millions of persons in the United
States have sought and received health care services from
unlicensed health care practitioners who use alternative
or complementary medicine. Alternative or complementary
medicine includes a wide array of heath care practices
that are not generally accepted as part of conventional
medical practice. These practices can include some forms
of health care that are currently licensed in California
- acupuncture, chiropractic - and many which are not such
as naturopathy, homeopathy, ayurveda, kinesthesiology,
etc.
The Senate Business and Professions Committee held a
hearing during the Legislative Interim last Fall on
Alternative and Complementary Medicine. At that hearing
a large number of witnesses testified arguing that the
current definition of medicine under the medical practice
act was too broad and limited the provision of other
types of health care to Californians who want access to
those services, in addition to conventional medical
treatment. There has been increased study and
investigation into Alternative and Complementary Medicine
or health care at the national level - with studies being
commissioned to ascertain the efficacy of various
alternative health care practices and treatments. There
is controversy whether these practices are effective and
if so who (with what training or education) should be
able to provide them.
3. State occupational licensure. Government regulates the
practice of
different professions or occupations based on its
exercise of its constitutional
"police power" to protect the public health, safety
and welfare. Generally, the
exercise of that power is constrained by the need to
intervene in the usual
public marketplace in as minimal a way as possible to
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achieve the perceived
necessary protection not otherwise available in that
marketplace.
There are various levels of such regulation - from more
minimal things such as requirements for disclosure or
written contracts, prohibitions against specified types of
practices that are deemed to be injurious - to the higher
level of imposing actual state licensure where the use of a
particular title (e.g., "physician" or "doctor") or the
performance of particular services (so-called "practice
regulation") is circumscribed and limited to particular
individuals with specified education and training believed
to be necessary for minimally competent practice.
Historically in the past century in California, the
practice of medicine and other healing arts generally have
been regulated through state title and practice licensure.
To practice medicine, state law requires that the
practitioner have specified education and training prior to
being issued a license. The practice of medicine is
defined in an extremely broad, all-inclusive manner. Other
health care practitioners who are legally permitted to
practice what would otherwise be covered by the scope of
practice of medicine are permitted to do so pursuant to
licensure in other specific health care fields (e.g.,
physical therapy, acupuncture, chiropractic, etc.) Absent
such licensure, individuals are prohibited from practice.
A key question raised by this bill is whether the current
licensing scheme for
medicine and other health care practitioners is too broad
so that it
unnecessarily, for the purpose of protecting the public
health and safety, limits the practice of healing arts by
other practitioners with different training and skills.
4. Arguments in Support. According to the proponents,
because of the overbroad wording of the Medical Practice
Act, most if not all of the activities of practitioners of
so-called natural medicine (alternative, complementary,
holistic, medicine) could be technically illegal unless the
practitioner holds a valid license as a physician.
Proponents argue that this bill will clarify the Medical
Practice Act so that providing natural medical treatment or
care that is not potentially harmful to a patient will no
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longer be technically illegal. Proponents argue that SB
577 will go a long way towards removing the stigma and
liability of illegality from thousands of practitioners who
provide valuable services of natural medicine to countless
Californians.
5. Arguments in Opposition. The California Medical
Association (CMA) opposes the bill arguing that it will
subject vulnerable populations particularly the elderly to
potential harm by allowing for the unlicensed practice of
medicine by any individual without any educational
requirements or medical training. CMA states that the bill
effectively removes any education and training
qualification requirements from the law for a modality of
practice that is only defined by what it is not - leaving
unclear what services could be provided.
CMA states that if the bill simply stated what activities
legally could be performed by a complementary, alternative
health care practitioner or other qualified health care
provider it would not be as inclined to oppose the bill.
However, as written, CMA believes the bill could be
interpreted to allow anyone to order laboratory tests,
treat superficial lacerations and abrasions through
electrotherapy, treat lesions that appear benign without
having training to be able to detect malignancy, and remove
foreign bodies in superficial structures with triggering
the bill's "invading the body" threshold.
CMA also argues that the bill stands state legal licensure
standards on its head - since every current health care
practitioner state licensee (physician, nurses,
optometrists, podiatrists acupuncturists, medical
assistants) has a specific scope of practice that
delineates what procedures and activities they can perform.
CMA argues that licensing standards have been the
cornerstone to improving health care in California - and
that professional credentialing and licensing for
individuals, accreditation standards for hospitals,
ambulatory settings, clinics and physician office
laboratories were enacted to ensure patient safety. CMA
points out that unlike California law governing any other
health care provider, this bill lacks any licensing
standards or related oversight by the State of California.
6. Additional disclosures to consider. The bill currently
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requires unlicensed practitioners to disclose to their
clients that they are not licensed physicians. However, to
assure that clients are not misled, it may be worthwhile
for the practitioner to disclose that he or she is not
licensed by the state to practice the particular mode or
method of treatment he or she is providing, that his or her
treatment practices are not accepted by conventional
medicine, the amount and type of training the practitioner
has in the particular type of practice, and if there is any
private certifying authority to which the practitioner
belongs that has the authority to discipline the
practitioner for improper or incompetent treatment. To
help assure that any required disclosures are given to the
client, it may be wise to require that such disclosures be
made on a properly signed informed consent form and given
to the patient.
SUPPORT AND OPPOSITION:
Support:California Health Freedom Coalition (sponsor)
Coalition for Natural Health
One individual
Opposition:California Medical Association (CMA)
Consultant:Jay J. DeFuria