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