BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:April 5, 2010         |Bill No:SB                         |
        |                                   |1050                               |
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                      SENATE COMMITTEE ON BUSINESS, PROFESSIONS 
                               AND ECONOMIC DEVELOPMENT
                         Senator Gloria Negrete McLeod, Chair

                           Bill No:        SB 1050Author:Yee
                      As Amended:March 25, 2010       Fiscal:Yes

        
        SUBJECT:  Osteopathic Medical Board of California:  Naturopathic  
        Medicine Committee.
        
        SUMMARY:  Revises the membership of the Osteopathic Medical Board of  
        California to remove two naturopathic doctor members, and instead  
        include two additional public members, appointed by the Senate Rules  
        Committee and the Speaker of the Assembly; revises the membership of  
        the Naturopathic Medicine Committee to require 5 members to be  
        naturopathic doctors, 2 members to be physicians and surgeons, and 2  
        public members; clarifies the duties and responsibilities of the  
        Naturopathic Medicine Committee.

        Existing law:
        
        1) Licenses and regulates osteopathic physicians and surgeons by the  
           Osteopathic Medical Board of California (OMBC) under the  
           Osteopathic Act.  Provides that the 9-member OMBC is composed of  
           the following members appointed by the Governor:

           a)   5 osteopathic physicians and surgeons

           b)   2 naturopathic doctors

           c)   2 public members.

        1) Licenses and regulates naturopathic doctors by the Naturopathic  
           Medicine Committee (Committee) within the Board under the  
           Naturopathic Doctors Act.  Provides that the 9-member Committee is  
           composed of the following members appointed by the Governor:

           a)   3 naturopathic doctors





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           b)   3 physicians and surgeons

           c)   3 public members.

        2) Authorizes the Committee, with the approval of the OMBC, to appoint  
           an executive officer, and authorizes the OMBC to employ other  
           officers and employees as necessary to carry out the duties of the  
           Committee.


        
        This bill:

        1) Changes the membership of the OMBC as follows:

           a)   Eliminates the 2 naturopathic doctor members of the OMBC

           b)   Adds 2 public members to the OMBC, appointed by the Senate  
             Rules Committee, and the Speaker of the Assembly.

        2) Changes the membership of the Committee as follows:

           a)   5 naturopathic doctors

           b)   2 physicians and surgeons

           c)   2 public members.

        3) Authorizes the Committee to appoint an executive officer, and  
           authorizes the Committee to employ other officers and employees as  
           necessary.

        4) Specifies that the Committee is solely responsible for  
           implementation of the Naturopathic Medicine Act.

        5) Makes the Committee responsible for reviewing the quality of the  
           practice of naturopathic medicine carried out by licensed  
           naturopathic doctors.


        FISCAL EFFECT:  Unknown.  This bill has been keyed "fiscal" by  
        Legislative Counsel.


        COMMENTS:





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        1. Purpose.  This bill is sponsored by  Osteopathic Physicians and  
           Surgeons of California  (Sponsor) to remove the newly added  
           naturopathic doctor positions from the membership of the  
           Osteopathic Medical Board of California, thereby returning the  
           membership of the OMBC to 5 osteopathic physicians and surgeons and  
           4 public members.

        The Sponsor states that the Osteopathic Act provides for the licensure  
           and oversight of California's 5,000 osteopathic physicians and  
           surgeons through the OMBC.  Since 1922, the OMBC's five physician  
           members (as well as staff and two public members added in 1991)  
           have been exemplary in protecting consumers and promoting the  
           highest professional standards in the practice of osteopathic  
           medicine.

        2. Background:  Osteopathic Medical Board.  The Osteopathic Medical  
           Board of California was initially established as the Board of  
           Osteopathic Examiners by initiative statute in 1922.  That  
           initiative established regulation by an entity separate from the  
           Medical Board of California (MBC) because of a perception of  
           discrimination against doctors of osteopathy (DOs) by the  
           predecessor to the MBC.  At the time, some in the medical  
           profession viewed physicians trained in osteopathic medicine as  
           lesser professionals.  In 1919, they succeeded in halting the Board  
           of Medical Examiners' longstanding practice of licensing  
           osteopathic trained physicians.  The 1922 initiative assured the  
           continued existence of DOs as a licensed branch of the medical  
           profession.

        Subsequent initiative statutes have modified the initial law, and it  
           is clear that the Legislature has considerable authority to amend  
           the osteopathic law.  Unlike the Chiropractic Act (which was also  
           enacted by initiative but is not amendable), a 1962 initiative  
           explicitly allows the legislature great leeway to amend the  
           Osteopathic Act.  In fact, the only restriction on the  
           Legislature's power is that it may not fully repeal the Act unless  
           the number of licensed DOs falls below 40 (Osteopathic Initiative  
           Act, Section 3600-3).  Short of that, the Legislature may make any  
           amendment to the Act that it finds appropriate.

        Prior to 2002, the Board was an independent, free-standing board.  In  
           2002, the Board was brought within the auspices of the state's  
           other consumer-protecting boards and commissions, including the  
           MBC, into the Department of Consumer Affairs (DCA) by (SB 26,  
           Figueroa, Chapter 615, Statutes of 2002).





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        The OMBC has the responsibility and sole authority to issue licenses  
           to practice osteopathic medicine in California.  The OMBC is also  
           responsible for ensuring enforcement of legal and professional  
           standards to protect California consumers from incompetent,  
           negligent or unprofessional doctors of osteopathic medicine.

        3. Background:  Former Bureau of Naturopathic Medicine.  The Bureau of  
           Naturopathic Medicine (Bureau) and the Naturopathic Doctors Act  
           became operative on July 1, 2004 
        (SB 907, Burton, Chapter 485, Statutes of 2003).  As originally  
           established the Bureau was placed under the authority of the  
           Director of the DCA, and the chief of the Bureau was appointed by  
           the Director.  The Director was also responsible for establishing  
           an advisory council to the Bureau consisting of three California  
           licensed naturopathic doctors, three California licensed physicians  
           and surgeons, and three public members.

        The Bureau licensed, regulated, and investigated complaints against  
           California naturopathic doctors and provided consumers with  
           licensing and disciplinary information.  The bureau was completely  
           funded by application and licensing fees and its staff was  
           responsible for answering public inquiries, analyzing licensure  
           documents, issuing licenses, responding to correspondence,  
           coordinating legislative, regulatory, and budgetary activities,  
           preparing reports, and administering disciplinary and enforcement  
           activities.  The Bureau licensed more than 300 naturopathic  
           doctors, and had an annual budget of $133,000, and a staff of .9  
           authorized positions.

        4. Hearing on Governor's Elimination, Consolidation and Reorganization  
           Proposals and Merger of Bureau of Naturopathic Medicine with  
           Osteopathic Medical Board.  In the May Revision of the 2009-2010  
           State Budget (May Revise), the Administration's recommendation was  
           to eliminate the Bureau of Naturopathic Medicine, but there was  no   
           indication whether licensure would continue or what entity if any  
           would be responsible for licensure and regulation of this  
           profession.  Unlike boards under DCA, that are only subject to a  
           sunset date, the sunset of the Bureau in July 1, 2010, would have  
           sunset the entire Naturopathic Doctors Act and thus eliminated  
           licensure of naturopathic doctors in California.  This did not  
           appear to be the intent of the Legislature just having recently  
           provided for licensure of naturopaths in California.
        In the summer of 2009, the Business, Professions and Economic  
           Development Committee (BP&ED Committee) convened a hearing on the  
           Governor's Elimination, Consolidation and Reorganization Proposals  





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           made in the May Revise.  The Budget Conference Committee had  
           requested that the Committee consider a number of the specific  
           elimination, consolidation and reorganization proposals made by the  
           Governor, as well as other consolidation proposals identified by  
           the BP&ED Committee.  In the hearing, the BP&ED Committee received  
           testimony from the Administration, DCA, boards and bureaus that  
           would be affected by the proposed changes, and also from the  
           Legislative Analyst's Office (LAO), the Center for Public Interest  
           Law, professional associations, members of the regulated  
           professions, and members of the public.  The BP&ED Committee made  
           its recommendations in a Report to the Conference Committee.  Those  
           recommendations and the legislative changes necessary to implement  
           the recommendations were the bases for ABX4 20 (Strickland, Chapter  
           18, Statutes of 2009).

        At that hearing, the BP&ED Committee considered 13 separate  
           consolidation or elimination proposals, including whether the  
           Bureau of Naturopathic Medicine should be eliminated.  That  
           proposal essentially would have discarded the Naturopathic Doctors  
           Act, eliminating the licensing and regulation of naturopathic  
           medicine in California.   The BP&ED Committee rejected the  
           Governor's proposal, and instead, approved on an 8-1 vote, a motion  
           to eliminate the Bureau of Naturopathic Medicine and move oversight  
           responsibilities to the OMBC; create a 9-member Naturopathic  
           Medicine Committee under the OMBC and add two naturopathic doctors  
           to the OMBC.  Those changes were included in ABX4 20.

        In placing naturopathic licensing and regulation under the OMBC, the  
           overriding concern was first, providing naturopathic doctors an  
           opportunity to have a voice in the licensing of their profession;  
           and second, protection of consumers by utilizing an effective   
           enforcement program of an existing board.  By placing two  
           naturopathic doctors on the OMBC, it was anticipated that this  
           would provide some direction and governance for the profession.   
           The OMBC also has had a solid record in protecting California  
           consumers and a sound enforcement program.

        5. Concerns About Placing Naturopathic Doctors on the OMBC and the  
           Function and Governance of the OMBC.  The Sponsor states that with  
           the combining of the Bureau of Naturopathic Medicine into the OMBC  
           in the July 2009 Budget package, for the first time in the OMBC's  
           86-year history, and in the only state in the country,  two   
            non  -  physician  providers with a competing philosophy would sit in  
           judgment of California's osteopathic physicians.

        The Sponsor believes that the integration of the two professions on  





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           the same oversight board confuses and misleads the public by  
           implying that the training, education and credentialing of  
           naturopathic doctors is equivalent to that of osteopathic  
           physicians and surgeons.  Patients may believe they're seeing a  
           physician when in fact they're visiting a naturopathic  
           practitioner, whose course of treatment is much different and more  
           limited, according to the Sponsor.

        The Sponsor argues that osteopathic physicians and surgeons undertake  
           rigorous, evidence based educational requirements and 3-10 years of  
           training in excess of that required of naturopathic doctors.   
           Osteopathic physicians are engaged and qualified in the unlimited
        practice of medicine, whereas naturopathic doctors are unable to  
           independently prescribe medication or perform surgery.
        According to the Sponsor, by combining the two regulatory programs,  
           OMBC staff will be forced to shift valuable time away from  
           performing its critical duty of public protection.  

        The Sponsor affirms that the integration of the OMBC and the bureau  
           has created several problems, including:  practitioners of  
           divergent modes of practice and competing philosophies are now  
           judging the others' clinical skills, and discouraging osteopathic  
           medical students from entering California residency programs.

        6. Recent Amendments Deal with the Concerns of Osteopathic Physicians  
           and Surgeons and Naturopathic Doctors.  As amended by the Author,  
           this bill would remove the appointment of two naturopathic doctors  
           to the OMBC and add instead two public members to the OMBC, with  
           one to be appointed by the Senate and the other by the Assembly.   
           This provides consistency with other healing arts boards under the  
           DCA.  Amendments also allow the Naturopathic Medicine Committee to  
           appoint its own executive officer and clarify that the Committee  
           will be solely responsible for enforcing and implementing its  
           duties to protect the public and by giving it control over its own  
           destiny.  As stated by the Sponsor, this bill effectively ensures  
           DCA's ability to hold each board accountable for patient protection  
           while honoring the intent of AB X4 20, to keep government  
           efficient.

        7. Arguments in Support.   California Naturopathic Doctors Association   
           (CNDA) states that the recent amendments to SB 1050 will provide  
           further autonomy for the Naturopathic Medicine Committee and the  
           OMBC, ensuring there is no unreimbursed utilization of OMBC  
           resources.  In listing its reasons to support the bill, CNDA states  
           the amendments will allow the Committee to hire their own executive  
           officer, clarify that all disciplinary matters of naturopathic  





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           doctors are handled by the Committee, and specify that the OMBC  
           will have no oversight and will not be responsible for any  
           decisions made by the Committee.  Additionally, to preserve the  
           autonomy of the OMBC, the Naturopathic Doctors will be removed as  
           members of the OMBC and the Committee structure will be  
           reconstituted to provide a majority of Naturopathic Doctors.

       8.Suggested Author's Amendment.  Contained within the administrative  
          provisions of each of the licensing acts in the Business and  
          Professions Code is an affirmative mandate that protection of the  
          public shall be the highest priority of that board or bureau, and  
          that whenever protection of the public is inconsistent with other  
          priorities, the protection of the public shall be paramount.  The  
          Naturopathic Doctors Act does not contain this mandate.

       BP&ED Committee staff recommends the following amendment:
       
               On page 2, between lines 5 and 6, insert:

             Section 3620.1 is added to the Business and Professions Code to  
             read:

             3620.1 Protection of the public shall be the highest priority for  
             the committee in exercising its licensing, regulatory, and  
             disciplinary functions.  Whenever the protection of the public is  
             inconsistent with other interests sought to be promoted, the  
             protection of the public shall be paramount.
        

        
        SUPPORT AND OPPOSITION:
        
         Support:   

        Osteopathic Physicians and Surgeons of California (Sponsor)
        California Academy of Family Physicians
        California Medical Association
        California Naturopathic Doctors Association

         Opposition:   

        None received as of March 31, 2010.


        Consultant:G. V. Ayers






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