BILL ANALYSIS Ó
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|Hearing Date:January 9, 2012 |Bill No:SB |
| |352 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 352Author:Huff
As Amended:January 4, 2012 Fiscal:Yes
SUBJECT: Chiropractors.
SUMMARY: Prohibits the diagnosis and/or treatment of hypersensitivity
to foods, medications, environmental allergens, or venoms by a
chiropractor, and would prohibit a chiropractor from advertising that
he or she provides or is able to provide those services, as specified.
Existing law:
1) Establishes the Chiropractic Initiative Act of California (Act),
approved by voters on November 7, 1922, and became effective on
December 21, 1922. (Chiropractic Act, Business and Professions
Code (BPC), Appendix I)
2)Establishes, under the Act, the State Board of Chiropractic
Examiners (BCE) that shall consist of seven members appointed
by the Governor, with five licensee members and two public
members, and specifies that the BCE shall license and regulate
the chiropractic practice, and prescribes the licensing and
renewal fees for chiropractors.
(BPC, Appendix I §§ 1, 2 and 12)
3)Provides that the BCE may adopt from time to time such rules and
regulations as the BCE may deem proper and necessary for the
performance of its work, the effective enforcement and
administration of the Act, the establishment of educational
requirements for license renewal, and the protection of the
public.
(BPC, Appendix I § 4)
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4) Provides that the BCE shall approve chiropractic schools and
colleges and specifies what chiropractic schools and colleges
may be eligible for approval.
(BPC, Appendix I § 4)
5) Specifies the schedule of minimum educational requirements to
enable any person to practice chiropractic in this state and
provides that prior to issuance of a certificate to practice
chiropractic a person must submit to the BCE an application, as
specified, and payment of license fee and proof of graduation
from an approved chiropractic school or college. (BPC,
Appendix I § 5)
6) Provides that the BCE shall issue a certificate designated as a
"License to practice chiropractic," which shall authorize the
holder thereof to practice chiropractic in the state of
California as taught in chiropractic schools or colleges; and,
also, to use all necessary mechanical, and hygienic and
sanitary measures incident to the care of the body, but shall
not authorize the practice of medicine, surgery, osteopathy,
dentistry or optometry, nor the use of any drug or medicine now
or hereafter included in material medica. (BPC, Appendix I §7)
7) Provides that the BCE may by rule or regulation adopt, amend,
or repeal rules of professional conduct appropriate to the
establishment and maintenance of a high standard of
professional service and the protection of the public.
(BPC, Appendix I § 10)
8) Prohibits a chiropractor, among other healing arts
practitioners, from disseminating any form of public
communications containing a false, fraudulent, misleading, or
deceptive statement for the purpose of inducing the rendering
of professional services, as specified. (BPC, § 651)
9) Specifies that it is unprofessional conduct for a chiropractor
to employ runners, cappers, steerers, or other persons to
procure patients, unless otherwise allowed by law. (BPC, §
1002)
10)Provides that provisions of the Business and Professions Code
which have general application to other healing arts
practitioners shall also be applicable to persons licensed by
the BCE. (BPC, § 1005)
This bill:
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1) Provides findings and declarations that the scope of practice
authorized by the Chiropractic Act does not extend beyond the scope
of the term "chiropractic" as it was understood and defined in
1922, upon the adoption of the Chiropractic Act. In addition, the
Chiropractic Act prohibits a chiropractor from engaging in the
practice of medicine. As it was understood in 1922, the term
"chiropractic" did not include the treatment of diagnosis of
hypersensitivity to foods, medications, environmental allergens, or
venoms. Furthermore, those services constitute the practice of
medicine. Therefore, the Chiropractic Act does not authorize
licensees to provide those services.
2) Specifies that the practice of chiropractic does not include the
treatment or diagnosis of hypersensitivity to foods, medications,
environmental allergens, or venoms, including, but not limited to,
the use of laser therapy for those purposes.
3) Provides that it shall constitute a cause for discipline by the BCE
to violate the provision in Item # 2) above in accordance with the
initiative measure.
4) Prohibits a chiropractor from advertising that he or she provides
or is able to provide the services as specified in Item # 2) above,
unless that person holds another license that authorizes the person
to provide such services.
5) Defines what "advertise" includes and also includes business
solicitations communicated by radio or television broadcasting.
6) Provides that it shall constitute a cause for discipline by the BCE
to violate the provision in Item # 4) above in accordance with the
initiative measure.
7) Provides that provisions of this measure are severable.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1. Purpose. The Author is the sponsor of this measure. According to
the Author, there needs to be some direction on the issue of
diagnosis and/or treatment of life threatening allergies by
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chiropractors including the use of laser therapy. The Author
believes that as the technology has evolved that chiropractic
involvement in the treatment and diagnosis of allergies is outside
their scope. As stated by the Author, "anaphylactic reactions are
serious and require medical treatment - there is NO KNOWN CURE for
this serious condition. Any statements otherwise need to be
challenged." The Author argues that some language on this issue
will hope protect both the patient and the chiropractor.
The Author indicates that they are working with the BCE to draft
regulations on the matter but are concerned those regulations may
be bogged down in a bigger battle over the use of lasers in
general. The intent of the Author is to keep the measure moving
while the regulatory process proceeds and to offer an alternative
should regulations not be passed on in the coming months.
2. Background. Chiropractors provide non-drug, non-surgical
health care through treatment of the musculoskeletal and
nervous systems and manipulation of the spinal column and bony
tissues. The BCE oversees approximately 14,000 licensees and
has an annual budget of approximately $3 million, funded
exclusively by the profession through licensing fees and other
regulatory fees.
The BCE was created on December 21, 1922, as the result of an
initiative measure approved by California voters on November 7,
1922. The BCE is a seven-member policy-making body. Five
professional members and two public members appointed by the
Governor to serve four-year terms. Because the BCE was created
by an initiative that does not permit amendment by the
Legislature, the Legislature is without the power to sunset the
BCE, or repeal the state's regulation of the chiropractic
profession. The Legislature could, however, place proposed
reform statutes before the electorate by a two-thirds vote and
seek the electorate's approval.
The Board's mission is to protect consumers from fraudulent or
incompetent chiropractic practice, examine applicants for
licensure in order to evaluate entry level competence, and
enforce the Act, statutes, and regulations relating to the
practice of chiropractic. The BCE's regulatory program also
approves chiropractic schools and colleges whose graduates may
apply for licensure in California and approves continuing
education. As a law enforcement agency, the BCE enforces laws
and regulations pertaining to the practice of chiropractic in
California.
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3. The BCE is Pursuing Regulations to Address Issues Pertaining to
Allergy Treatments.
According to the BCE, it has already promulgated regulations that,
when enacted, will clarify chiropractic scope issues pertaining to
allergy treatments and believe the regulation process is the more
appropriate and cost-effective means of clarifying existing
statute. The BCE indicates that it has not received any consumer
complaints and is not aware of any consumer harm related to the
treatment of allergies by chiropractors. (However, it should be
noted that the Author did provide evidence of several instances in
which chiropractors were advertising their services to treat (and
possibly cure) allergies with various methods including the use of
lasers.)
On January 10, 2011, the Author informed the BCE of his concerns
regarding chiropractors involved in the diagnosing and treatment of
allergies (food allergies specifically). The Author indicated,
that "while it is imperative for patients to have a variety of
options when seeking treatment for medical conditions, it has been
brought to Ýhis] attention the seriousness of food allergies and
the limited nature of treatment options." The Author further
indicated that while there are several medical clinical trials
underway, the main treatment of food allergies to date is one of
avoidance. Recently, as pointed out by the Author, the National
Institute of Allergy and Infectious Diseases (NIAID) released a
comprehensive report laying out guidelines for the diagnosis and
management of food allergies in the United States. Included in
that report is a section on unproven procedures. The Author was
alarmed to learn there are some chiropractors advertising they can
help alleviate and cure these allergies. The Author states that
"food allergies are very serious, resulting in severe reactions
including anaphylactic shock and death. . .Ýand] I want to be sure
we tread carefully regarding claims that chiropractic treatment and
cures are available given the serious consequences at hand.
The Author presented a number of questions for the BCE to address
regarding chiropractors involvement in the treatment of allergies
and use of laser machines and also asked whether there were any
standards or regulations regarding food allergy treatment.
The BCE initiated its regulatory review process so as to address the
use of lasers by chiropractors and in particular the laser
treatment of allergies. As yet, the BCE has not voted on the final
proposed language dealing with use of lasers and treatment of
allergies. It is unknown when these regulations may be adopted, or
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if at all, since they require approval by the Office of
Administrative Law. It should be noted that the proposed
regulatory language does not go as far as this measure in providing
for an outright prohibition against the use of laser treatment, or
other forms of treatment or diagnosis of hypersensitivity to foods,
medications, environmental allergens, or venoms by chiropractors,
or the advertising of chiropractors that they can provide such
treatment or services.
4. Prior Legislation. AB 1996 (Hill, Chapter 539, Statutes of
2010) amended the Initiative Act by increasing the license
renewal fees of chiropractors from $150 to $250.
SB 801 (Ridley-Thomas, 2007) was an urgency measure that would
have placed an initiative statute on the next statewide ballot
to amend the Chiropractic Initiative Act to allow the
Legislature to amend, modify, or repeal the Act and
reconstitute the BCE if necessary, proposed to amend and codify
the Act into the Business and Professions Code, added two
public members to the BCE, and stated that protection of the
public shall be the BCE's highest priority, if the initiative
statute was approved by the voters.
This measure was vetoed by the Governor.
5. Arguments in Support. The Capital Allergy & Respiratory Disease
Center (CARDC), a Medical Corporation in Sacramento, is in support
of this measure, and brought this issue to the attention of the
Author. The CARDC indicates that a significant number of their
patients with food allergies have come to them stating that they
have been approached by chiropractors who espouse "laser therapy"
for the diagnosis and treatment of food allergies. The CARDC has
raised the same concerns of the Author, in that 4 million patients
in the United States suffer from food allergies and that these
reactions are from mild to life threatening and that "there is no
known cure for food allergies at this time other than avoidance."
The CARDC points out that the allergy scientific community and
Federal government are actively working on a consensus document
regarding the diagnosis and treatment of food allergies. "It is
expected that statement will specifically warn patients of the
dangers relating to alternative therapies including electrodermal
and laser treatments."
The CARDC understands that the Author has been working with the BCE on
regulations and although they appreciate any regulatory reform on
the issue, they strongly support the measure as they feel that it
will help define an area of medicine that should remain under the
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care of physicians.
6. Arguments in Opposition. The California Chiropractic Association
(CCA) is opposed to this measure and argues that it seeks to limit
a doctor of chiropractic's scope of practice relating to the
treatment and diagnosis, as well as the use of light in treating
patients. "In addition to the measure being unnecessary, it
represents a threat to public safety."
According to CCA, doctors of chiropractic are licensed to diagnose and
differentially diagnose all conditions affecting the entire human
body. Restricting a doctor of chiropractic's professional duty to
diagnose could jeopardize public safety by limiting a doctor's
ability to diagnose potentially life-threatening conditions that,
as warranted by the situation, should be referred to other licensed
health care providers. Also, CCA argues the proposed limitation
would prevent many other appropriate diagnoses, for example,
lactose intolerance, in which a doctor of chiropractic could offer
patient dietary changes to resolve symptoms associated with the
condition.
The CCA further states that they believe the bill is unnecessary since
the BCE has undertaken the development of regulations to govern the
use of lasers by chiropractors and reports they have not received
any complaints related to a chiropractors use of laser for
treatment purposes or the treatment of allergies, and that laws
already exist to govern advertising by chiropractors.
SUPPORT AND OPPOSITION:
Support:
California Medical Association
Capital Allergy & Respiratory Disease Center, a Medical Corporation,
Sacramento
Opposition:
Board of Chiropractic Examiners
California Chiropractic Association
Consultant:Bill Gage
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