BILL ANALYSIS SB 762 Page 1 SENATE THIRD READING SB 762 (Aanestad) As Amended May 5, 2009 Majority vote SENATE VOTE :31-6 BUSINESS & PROFESSIONS 9-0 ----------------------------------------------------------------- |Ayes:|Hayashi, Emmerson, | | | | |Conway, Eng, | | | | |Hernandez, Nava, Ruskin, | | | | |Smyth, Hill | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- 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 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 : SB 762 Page 2 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. 3)Authorizes a city, county, or city and county to levy a business license tax solely for the purposes of revenue or covering the cost of regulation. FISCAL EFFECT : Unknown. This bill is keyed non-fiscal. COMMENTS : 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. In 2003, state and local legislation were introduced 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. That 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 SB 762 Page 3 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 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, 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 qualifications 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. SB 762 Page 4 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." 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 practice 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 SB 762 Page 5 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, 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 that the appellate court's decision should be upheld. Analysis Prepared by : Joanna Gin / B. & P. / (916) 319-3301 FN: 0001458