BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 762
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          Date of Hearing:   June 16, 2009

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                                 Mary Hayashi, Chair
                     SB 762 (Aanestad) - As Amended:  May 5, 2009

           SENATE VOTE  :   31-6
           
          SUBJECT  :   Professions and vocations:  healing arts. 

           SUMMARY  :   Prohibits cities or counties from restricting any  
          person from performing a procedure that falls within the scope  
          of practice of a person licensed by the state Department of  
          Consumer Affairs (DCA).  Specifically,  this bill  : 


          1)Makes it unlawful for a city, county, or city and county to  
            prohibit a licensed healing arts professional from engaging in  
            any act or performing any procedure that falls within the  
            licensee's professionally recognized scope of practice.


          2)Authorizes the enforcement of a local ordinance in effect  
            prior to January 1, 2010, related to any act or procedure that  
            falls within the a licensed healing arts professional's  
            recognized scope of practice. 


          3)Authorizes a city, county, or city and county to adopt or  
            enforce any local ordinance governing zoning, business  
            licensing, or reasonable health and safety requirements for  
            establishments or businesses of a licensed healing arts  
            professional. 


           EXISTING LAW  :  

          1)Authorizes DCA to regulate and license practitioners of the  
            healing arts professions. 

          2)Makes it unlawful for a city and county to prohibit a person,  
            authorized by one of the DCA agencies to engage in a  
            particular business, from engaging in that business,  
            occupation, or profession. 









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          3)Authorizes a city, county, or city and county to levy a  
            business license tax solely the purposes of revenue or  
            covering the cost of regulation.

          FISCAL EFFECT  :   Unknown.  This bill is keyed non-fiscal. 

           COMMENTS :   

           Purpose of the bill  .  According to the author's office, "SB 762  
          by Senator Aanestad would amend Section 460 of the Business and  
          Professions Code (BPC).  This measure seeks to codify that the  
          California Legislature, the DCA, and the boards and bureaus  
          overseen by the DCA, should have ultimate authority over medical  
          scope of practice issues for healing arts licentiates.  This  
          measure will ensure there is a statewide uniformity of standards  
          for medical professionals."  The author's office contends that  
          this measure only pertains to licensed healing arts  
          professionals as defined in Division 2 of the BPC, and is  
          narrowly drafted so that it addresses scope of practice of those  
          professionals.  

           Background  .  In 2003, state and local legislation were  
          reintroduced to prohibit veterinarians from declawing cats.  AB  
          395 (Koretz) of 2003 would have prohibited veterinarians from  
          performing or arranging surgical declawing, onychectomies, and  
          tendonectomies on any domestic or exotic cat.  This bill died in  
          the Assembly Business and Professions Committee.  Around the  
          same time, the City of West Hollywood adopted an ordinance  
          prohibiting veterinarians who practice within the city limits  
          from declawing domestic cats.  The West Hollywood ordinance  
          marked 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).  Consequently, the California Veterinary  
          Medical Association (CVMA) sued the City of West Hollywood.  

          In the lawsuit, CVMA v. City of West Hollywood, the plaintiffs  
          argued that the ordinance was preempted by the VMPA and BPC  
          Section 460 which states:  "No city or county shall prohibit a  
          person, 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 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  








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          any city or county from levying a license tax solely for the  
          purpose of covering the cost of regulation." 

          DCA, California Dental Association (CDA), California Optometric  
          Association (COA), and American Veterinary Medical Association  
          (AVMA) joined in support of CVMA's legal 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 decision on a 2-1 vote, and the  
          California Supreme Court chose not to hear the case.    

          Even though the appellate court agreed that the barred  
          procedures were part of the practice of veterinary medicine, the  
          court ruled that BPC Section 460 only prevents municipalities  
          from imposing additional prerequisites to a licensed  
          professional's ability to practice within a given jurisdiction.   
          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 BPC 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 BPC Section 460 as banning localities from issuing  
          additional requirements, not from limiting existing ones.    

          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  








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          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."  


          AVMA's amicus letter to the California Supreme Court notes,  
          "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."

          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 CVMB."

          It is important to note that this bill does not seek to undo the  
          West Hollywood ordinance and includes a grandfathering clause  
          that preserves the City of West Hollywood's 2003 anti-declawing  
          ordinance.  This bill addresses the important issue that is  
          raised by the ability of local municipalities to ban specific  
          practices of professions regulated by DCA and asserts that it is  
          critical to have statewide oversight and ultimate authority over  
          professional businesses, occupations, or professions.  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 that are not medically necessary; and,  








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          the ability of pharmacists to dispense various drugs like  
          emergency contraception, vaccinations, and psychotropic drugs.  

          Supporters, who include organizations representing professions  
          regulated by DCA, believe that the legislature and the healing  
          arts boards and bureaus should have the ultimate authority over  
          medical scope of practice issues based on their education,  
          training, and expertise.  They argue that without legislation  
          ensuring uniform statewide governance of licensed professions,  
          professional standards will be dissimilar and discordant.  

          Opponents, who include animal rights organizations and the City  
          of West Hollywood, believe that local jurisdictions have the  
          right to make specific decisions relating to professions and the  
          appellate court's decision should be upheld. 

           Support  .  According to the sponsor, "SB 762 attempts to clarify  
          [BPC] Section 460, and is specifically very narrowly written to  
          only apply to the healing arts professionals under Division 2 of  
          the BPC, and their scope of practice.  Clearly, it is not in the  
          best interest of medical professionals nor the consumer public  
          to have a patchwork quilt of medical standards from city to city  
          or county or county." 

          According to the CVMB, "State licensing boards were created to  
          develop, maintain, and enforce state laws governing these  
          professions and to provide California consumers with assurance  
          of a consistent, single state agency to handle complaints  
          against a person licensed by the State of California." 

          According to the California Medical Association, "This bill  
          would ensure that physicians are allowed to perform to the full  
          extent of their practice without interference from local  
          political pressure." 

          According to the COA, "We believe that our members are entitled  
          to the security that comes from knowing that state laws  
          governing the practice of their professions will be recognized  
          and enforced uniformly throughout the state, and that their  
          licenses to practice their healing arts cannot be endangered by  
          shifting political winds in one jurisdiction.  Arguing by  
          analogy, if a city or county governing body decided to outlaw an  
          optometric procedure because it inflicts temporary pain on a  
          patient, every resident of that jurisdiction would risk being  
          deprived of a technology or treatment available to every other  








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          resident outside that jurisdiction.  The implications for the  
          profession's standard of care and enforcement would be  
          troubling, and substantial."  

           Oppose  .  According to the City of West Hollywood, "If adopted,  
          SB 762 will preempt local government's authority to exercise  
          their police powers to regulate certain professional practices  
          in their jurisdictions, a right validated in 2007 by the  
          California Court of Appeals.  The Court of Appeals decision  
          recognized that local agencies often have different interests  
          than the State when regulating the same occupation, and  
          validates the fact that state law and local law can operate  
          side-by-side harmoniously. 

          "The Court of Appeals decision is very narrow and has limited  
          application to regulating business and professions in local  
          jurisdictions.  The decision has no bearing on other state  
          licensed professions or occupations, particularly where the  
          State has made clear an intention to preempt local regulation.   
          Local governments are extremely limited in their ability to  
          regulate licensed professionals, and the scope of local  
          regulatory powers largely depends on the specific regulatory  
          scheme governing each separate category of professionals and  
          occupations."

          According to The Paw Project, "Under existing California law,  
          cities and counties can regulate licensed professions and  
          occupations, in a limited manner and in limited circumstances,  
          in order to advance local interests.  Court decisions in the  
          past have allowed local governments to exercise police powers  
          that respond to changing local social conditions and values.   
          The CVMA-sponsored bill was introduced to circumvent a decision  
          by the California courts upholding the right of a city to ban  
          non-therapeutic surgery on animals - surgery that is illegal in  
          many other countries and that is considered unethical by  
          professional veterinary organizations in other countries." 

          According to United Animal Nations, "While it is clear that the  
          state has long held the authority to establish fundamental  
          statewide regulatory policies over agencies licensed by the DCA,  
          local jurisdictions also have the flexibility to fine-tune those  
          restrictions to effectively address local issues.  Continuing to  
          allow the state and local jurisdictions their respective roles  
          is vital to effective long-term management as well as to the  
          best interests of consumers."








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           Prior Legislation  .  AB 2427 (Eng) of 2008 was an identical bill  
          that the Governor vetoed.  The Governor vetoed a substantial  
          number of bills that year with the same message that, due to the  
          delay in passing the 2008-09 State Budget, he would only sign  
          bills that were "the highest priority for California."  AB 2427  
          was vetoed for this reason.  This bill also included a time,  
          place, and manner clause to reaffirm that local jurisdictions  
          have the ability to make city planning decisions related to  
          businesses.  

          AB 395 (Koretz) of 2003 would have prohibited licensed  
          veterinarians from performing or arranging surgical declawing,  
          onychectomies and tendonectomies on any domestic or exotic cat.   
          This bill died in Assembly Business and Professions Committee.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Veterinary Medical Association (CVMA) (sponsor) 
          California Association of Marriage and Family Therapists (CAMFT)
          California Dental Association (CDA)
          California Medical Association (CMA) 
          California Optometric Association (COA) 
          California Veterinary Medical Board (CVMB)
           
            Opposition 
           
          Born Free USA 
          California Animal Association (CAA)
          City of West Hollywood 
          League of Humane Voters
          The Paw Project
          United Animal Nations 

           Analysis Prepared by  :    Joanna Gin / B. & P. / (916) 319-3301