BILL ANALYSIS                                                                                                                                                                                                    



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          CONCURRENCE IN SENATE AMENDMENTS
          AB 2427 (Eng)
          As Amended August 11, 2008
          Majority vote
           
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          |ASSEMBLY:  |65-7 |(April 21,      |SENATE: |30-3 |(August 18,    |
          |           |     |2008)           |        |     |2008)          |
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           Original Committee Reference:    B. & P.  

           SUMMARY  :  Restricts local government's ability to prohibit a  
          healing arts licensee from engaging in any act or performing any  
          procedure that falls within the professionally recognized scope  
          of practice of that licensee, and would prohibit construing this  
          provision to prohibit the enforcement of a local ordinance  
          effective prior to January 1, 2009, as specified. 

           The Senate amendments  specify that this bill:

          1)Does not void local ordinances in effect prior to January 1,  
            2009.

          2)Is limited to healing arts professional licensed under  
            Division 2 (commencing with Section 500).  

          3)Does not prohibit any city, county, or city and county from  
            regulating the time, manner, or place of business operations  
            of a healing arts professional licensed by an entity within  
            the Department of Consumer Affairs (DCA).  

          EXISTING LAW  makes it unlawful for a city or county to prohibit  
          a person, authorized by one of the agencies of DCA to engage in  
          a particular business, from engaging in that business,  
          occupation, or profession or any portion thereof.

           AS PASSED BY THE ASSEMBLY  , this bill restricted a city or county  
          from prohibiting groups of persons authorized by one of the  
          agencies in the DCA by a license, certificate, or other such  
          means to engage in a particular business, from engaging in their  
          business, occupation, profession, or from engaging in any act or  
          series of acts that fall within the statutory or regulatory  
          definition of that business, occupation, or profession, as  
          defined by state law.   








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          FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.

           COMMENTS  :  According to the author, "The California legislature,  
          the DCA, and the boards and bureaus overseen by the Department,  
          should have the ultimate authority over medical scope of  
          practice issues and professional standards for non-medical  
          boards.  Without legislation ensuring uniform statewide  
          governance of licensed professions, professional standards will  
          be dissimilar and discordant.  Licensed professionals should not  
          have the scope of permissible practice be subject to  
          individualized local restrictions, nor should a practitioner in  
          one county be prohibited from performing a  
          professionally-recognized act that a practitioner in the next  
          county may perform."
           
           Recently, the City of West Hollywood adopted an ordinance that  
          would ban veterinarians who practice within the city limits from  
          declawing domestic cats.  The West Hollywood ordinance marks the  
          first time that a certain city or county has deemed that a  
          veterinarian shall be prohibited from performing a surgical act  
          that is authorized under the Veterinary Medicine Practice Act  
          (VMPA).  As a consequence, the California Veterinary Medical  
          Association (CVMA) entered into a lawsuit against the City of  
          West Hollywood.  

          The suit argued that the ordinance was preempted by the VMPA and  
          Business and Professions Code Section 460 which states:  "No  
          city or county shall prohibit a person, authorized by one of the  
          agencies in the Department of Consumer Affairs by a license,  
          certificate, or other such means to engage in a particular  
          business, from engaging in that business, occupation, or  
          profession or any portion thereof.  Nothing in this section  
          shall prohibit any city or county or city and county from  
          levying a business license tax solely for revenue purposes nor  
          any city or county from levying a license tax solely for the  
          purpose of covering the cost of regulation." 

          Several key groups such as the DCA, the California Dental  
          Association, the California Optometric Association, and the  
          American Veterinary Medical Association (AVMA) joined in support  
          of CVMA's lawsuit effort by writing amicus letters to the court.  
           After the Los Angeles County Superior Court struck down the  
          West Hollywood ordinance, the appellate court reversed the  








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          decision on a 2-1 vote, and the California Supreme Court chose  
          not to hear the case.    

          The appellate court decision read, "Although section 460  
          prohibits local legislation imposing separate and additional  
          licensing requirements or other qualifications on individuals  
          holding state licenses issued by agencies of the DCA, it does  
          not preclude otherwise valid local regulation of the manner in  
          which a business or profession is performed."  The court  
          concluded that Section 460 does not preempt the West Hollywood  
          anti-declawing ordinance on the basis that:  "Because the  
          ordinance is an anti-cruelty measure and it is not directed  
          solely to veterinarians, but to any person who authorizes or  
          performs such procedures, including the owner of the animal, it  
          is outside the scope of section 460, even as the statute was  
          interpreted by DCA's legal office [which did not focus on the  
          cruelty aspect, but rather on the hierarchical structure of  
          state and local regulation] and by the trial court.  Finally, by  
          its terms section 460 prohibits local governments from imposing  
          additional licensing conditions or qualification as a  
          requirement for working within their jurisdiction but does not  
          preclude local regulation of the manner in which state licensees  
          actually perform their business or profession."  Thus, the court  
          interpreted section 460 as banning localities from issuing  
          additional requirements, not from limiting existing ones.    

          The appellate court's decision raises important questions of law  
          specifically related to the construction and application of  
          Business and Professions Code Section 460. This bill seeks to  
          clarify existing statute by adding the language, "or from  
          engaging in any act or series of acts that fall within the  
          statutory or regulatory definition of that business, occupation,  
          or profession," in order to continue to adequately enforce  
          statewide standards of professional practice. 

          It is important to note that this bill does not seek to undo the  
          West Hollywood ordinance; it addresses the important issue that  
          is raised by the ability of local municipalities to ban specific  
          practices of professions regulated by the DCA and asserts that  
          it is critical to have statewide oversight and ultimate  
          authority over professional scope of practice.  Some examples of  
          professions and acts that could be affected by local government  
          bans on specific practices are: the practice of acupuncture and  
          other alternative health care such as homeopathic medicine; the  
          performance of cosmetic surgery and other elective surgeries  








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          that are not medically necessary; and, the ability of  
          pharmacists to dispense various drugs like emergency  
          contraception, vaccinations, and psychotropic drugs.  
          According to the sponsors of the bill, CVMA, "Professional  
          organizations and the DCA all agree that undermining statewide  
          uniformity in licensed practice standards will harm professional  
          practice and professional service."

          CDA's amicus letter to the California Supreme Court, states,  
          "The CDA is specifically concerned that the appellate decision,  
          if allowed to stand, may adversely affect the health of  
          Californians by relegating to local municipalities what is  
          properly the domain of state licensing authorities and the state  
          legislature.  Based on the appellate ruling, a local  
          municipality could - for reasons based on popular opinion or  
          otherwise, and without proven and reputable scientific evidence  
          - arbitrarily determine that a certain medical procedure was no  
          longer within the scope of practice or a given health care  
          profession and ban its use.  The CDA believes that all decisions  
          affecting the health of the public should be left to the  
          discretion of the state licensing authority governing the  
          relevant profession and the California state legislature. It is  
          only in this arena where the full analysis and discussion of  
          scientific evidence related to medical issues comes to light,  
          and where the public is best protected through the establishment  
          of uniform laws and regulations that apply to all Californians."  


          The AVMA amicus letter to the California Supreme Court argues,  
          "State regulation of veterinary medicine, a system that has well  
          served the American public and animal patients over 100 years,  
          will be undermined if cities, villages, and counties get a green  
          light to chip away at the uniformity of state veterinary  
          practices acts and the regulations issued by state veterinary  
          medical boards, as authorized by those statutes."

          The DCA's amicus letter to the California Supreme Court, states,  
          "The concept of statewide professional licensure relies on the  
          legislative delegation of authority to state agencies which  
          possess the necessary expertise to regulate the conduct of the  
          professions.  A municipal body generally lacks that professional  
          expertise, and should not be allowed to substitute its judgment  
          for that of the licensed medical professionals who are appointed  
          to regulate the profession and advise the legislature, in this  
          case, the California Veterinary Medical Board."








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          Analysis Prepared by  :    Josefina Ramirez / B. & P. / (916)  
          319-3301 


                                                               FN: 0007257