BILL ANALYSIS ---------------------------------------------------------- |Hearing Date:January 14, 2002 |Bill No:SB | | |577 | ---------------------------------------------------------- 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 SB 577 Page 2 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 SB 577 Page 3 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 SB 577 Page 4 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 SB 577 Page 5 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 SB 577 Page 6 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 SB 577 Page 7 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