BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:May 2, 2011 |Bill No:SB | | |628 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: SB 628Author:Yee As Amended:April 25, 2011 Fiscal:Yes SUBJECT: Acupuncture: regulation. SUMMARY: Changes the name of the California Acupuncture Board to the "Traditional Chinese Medicine Board," retitles the Acupuncture Licensure Act into the "Traditional Chinese Medicine Licensure Act" and changes the designation of a licensed acupuncturist into a licensed "Traditional Chinese Medicine Practitioner." Provides for the certification of traumatologists and includes traumatology in the authorized activities of a licensed acupuncturist. Existing law: 1) Establishes the California Acupuncture Board (Board) within the Department of Consumer Affairs (DCA), which licenses and regulates the acupuncture profession pursuant to the Acupuncture Licensure Act. (Business and Profession Code (BPC) § 4925) 2) Defines an acupuncturist as an individual who has been licensed to practice acupuncture pursuant to the Acupuncture Licensure Act. Defines acupuncture as the stimulation of a certain point or points on or near the surface of the body by the insertion of needles to prevent or modify the perception of pain or to normalize physiological functions, including pain control, for the treatment of certain diseases or dysfunctions of the body and includes the techniques of electroacupuncture, cupping, and moxibustion. (BPC § 4927) 3) States that a licensed acupuncturist is authorized to do the following: SB 628 Page 2 a) To engage in the practice of acupuncture. b) To perform or prescribe the use of Asian massage, acupressure, breathing techniques, exercise, heat, cold, magnets, nutrition, diet, herbs, plant, animal, and mineral products, and dietary supplements to promote, maintain, and restore health. Nothing in this section prohibits any person who does not possess an acupuncturist's license or another license as a healing arts practitioner from performing, or prescribing the use of any of these modalities, as specified. (BPC § 4937) 4) States that the Board shall issue a license to practice acupuncture to any person who applies and meets the following requirements: (BPC § 4938) a) Is at least 18 years of age. b) Furnishes satisfactory evidence of completion of one of the following: 1) an education and training program, as specified; 2) satisfactory completion of a tutorial program in the practice of an acupuncturist which is approved by the Board; or 3) In the case of an applicant who has completed education and training outside the United States and Canada, documented education training and clinical experience, as specified. c) Passage of a written examination administered by the Board, as specified. d) Completion of a clinical internship training program approved by the Board. This bill: 1)Renames the Acupuncture Licensure Act as the Traditional Chinese Medicine Licensure Act, renames the Board as the Traditional Chinese Medicine Board, and changes the name of the Acupuncture Fund into the Traditional Chinese Medicine Fund. 2)Defines Traditional Chinese Medicine (TCM) to be similar to the current definition of acupuncture and changes the designation of an acupuncturist into TCM Practitioner. 3)Includes in the authorized activities of a licensed acupuncture the performance of traumatology, which includes a range of treatments to address both acute and chronic musculoskeletal conditions, as well as many nonmusculoskeletal conditions. Techniques include, but are SB 628 Page 3 not limited to, brushing, kneading, rolling, pressing, and rubbing the areas between each of the joints to open the body's defensive chi and stimulate the energy movement in both meridians and the muscles so that the licensee is able to use range of motion, traction, and massage with the stimulation of acupuncture points. 4)Requires the Board, on or before March 1, 2012, to establish a Traumatology Advisory Committee (Committee) within the Board to consist of six members composed of representatives from the clinical settings of traumatology. 5)Requires the Committee to determine certification standards, including the level of experience and training needed for an individual to qualify for traumatology certification. Requires the Committee to advise the Board in developing the application form and the written examination for the certification. 6)Requires the Board, commencing May 1, 2012 until December 15, 2012, to issue a certificate for traumatology to any person who makes an application and meets all of the following requirements: a) Is at least 18 years of age; b) Furnishes satisfactory evidence of training and clinical experience which meets the standards established by the Committee and confirmed by the Board. c) Passes a written examination administered by the Board that tests the applicant's ability, competency, and knowledge of traumatology. Requires the written examination to be developed by the Office of Professional Examination Services of the DCA. d) Is not subject to denial, as specified. 7)Requires an applicant for traumatology certification, commencing January 1, 2012, to apply for a certificate for traumatology until December 15, 2012. Prohibits the Board, on and after December 15, 2012, from issuing an initial license to any applicant. Specifies that on and after December 15, 2012, the Board may issue only a renewal of a certificate. State that an individual who is not qualified to receive a certificate or who fails to apply for certification by December 15, 2012, shall not hold himself or herself out as a certified traumatologist. 8)Defines traumatology as treating both acute and chronic musculoskeletal conditions through stimulation of acupressure points SB 628 Page 4 using a range of hands-on body treatment, including traction and massage. States that traumatology addresses pain associated with the muscles joints and skeletal system. Provides that traumatology involves manipulation techniques to realign the musculoskeletal and ligamentous relationships, a technique called bone-setting. 9)Requires a certified traumatologist to maintain a relationship with an orthopedic surgeon when involved in manipulation techniques to realign the musculoskeletal and ligamentous relationships, a technique called bone setting. States that the extent of the relationship between a traumatologist and orthopedic surgeon in the case of bone-setting shall be determined by the Board in consultation with the Medical Board of California. 10)Requires an applicant for certification as a traumatologist to pay an application fee of $75 when submitting his or her application to the Board. 11) Requires that the certificate must be renewed every five years, and that an expired certificate may be renewed at any time within the three years after its expiration. 12)Specifies fees for the following: renewal ($75), delinquency ($25), duplicate or replacement wall certificates ($15), and duplicate or replacement renewal receipt ($10). 13)States that moneys received pursuant to certification shall be deposited in the TCM Fund. 14)Provides that it is an unfair business practice for any person to hold himself or herself out as a certified traumatologist or use the title "certified traumatologist" without meeting the requirements of this bill. 15)Applies existing law provisions that currently relates to licensed acupuncturists to certified traumatologists. 16)Provides that a person who holds a certificate to practice traumatology is subject to existing disciplinary provisions contained in the Acupuncture Licensure Act. 17)Applies relevant provisions of the Acupuncture Licensure Act to certified traumatologists. Makes other technical, clarifying and conforming changes. 18)States findings and declarations relating to TCM and traumatology. SB 628 Page 5 FISCAL EFFECT: Unknown. Legislative Counsel has keyed this bill as "fiscal." COMMENTS: . 1. Purpose. This bill is sponsored by the Author . According to the Author, "the current Acupuncture Licensure Act incorrectly refers to practitioners as Acupuncturist when in fact an Acupuncturist practices all modalities of TCM of which Acupuncture is only one modality. The Author states that this bill "seeks to change the name of the Board and the title practitioners assume to more accurately reflect their scope of practice. Additionally, this bill provides a way for traumatologists to become certified. Traumatology is one of the modalities that constitute TCM. Before China systemized their health care system, individuals acquired their mastery of traumatology through a master-apprentice relationship. These practitioners learned from a master through hands-on training. Although highly skilled, it is extremely difficult for these practitioners to obtain proof of their training to qualify for the existing requirement for licensure." 2. Background. According to the National Institutes of Health's (NIH) National Center for Complementary and Alternative Medicine (Center)," TCM originated in ancient China and has evolved over thousands of years. TCM practitioners use herbs, and other methods to treat a wide range of conditions. In the United States, TCM is considered part of complementary and alternative medicine. Herbal remedies and acupuncture are the treatments most commonly used by TCM practitioners. Other TCM practices include cupping, mind-body therapy and dietary therapy. Although TCM is used by the American public, scientific evidence of its effectiveness is, for the most part, limited. Acupuncture has the largest body of evidence and is considered safe if practiced correctly." In 1996, the United States Food and Drug Administration approved acupuncture needles for use by licensed practitioners. The FDA requirements stipulate that the needles must be sterile, nontoxic, and labeled for single use by qualified practitioners only. In the past two decades, acupuncture's popularity has grown in the United States. According to the 2002 National Health Interview Survey, the largest and most comprehensive survey of complementary and alternative medicine, an estimated 8.2 million adults have used acupuncture. According to the Board, there are currently 10, 271 licensed acupuncturists and 19 approved acupuncture schools in California. SB 628 Page 6 The Acupuncture Licensure Act (Act) defines acupuncture as the stimulation of a certain point or points on or near the surface of the body by the insertion of needles to prevent or modify the perception of pain or to normalize physiological functions, including pain control, for the treatment of certain diseases or dysfunctions of the body and includes the techniques of electroacupuncture, cupping, and moxibustion. The Act provides that an acupuncturist's license authorizes the holder to engage in the practice of acupuncture and to perform or prescribe the use of Asian massage, acupressure, breathing techniques, exercise, heat, cold, magnets, nutrition, diet, herbs, plant, animal, and mineral products, and dietary supplements to promote, maintain, and restore health. The Act further provides an applicant for acupuncture licensure to furnish evidence of completion of an educational and training program approved by the Board or a tutorial program in the practice of acupuncture that is approved by the Board. Students entering programs on or after January 1, 2005 are required to fulfill a minimum of 3,000 hours of study pertaining to the practice of acupuncture. Additionally, an applicant must pass a written examination administered by the Board, and complete a clinical internship training program, as specified. 3. Related Legislation. AB 72 (Eng), pending in Assembly Health Committee would require every health care service plan, as specified, to provide acupuncture coverage, as specified. AB 1117 (Yee), Chapter 649, Statutes of 2006, among other provisions, changed the term "oriental medicine" to "Asian medicine" and the term "oriental massage" to "Asian massage." 4. Policy Questions. a) Will changing the name of acupuncture into Traditional Chinese Medicine and the Acupuncture Board into the Traditional Chinese Medicine Board and in the best interests of consumers? According to the Board's Website, the term acupuncture has been used in California since 1972 when the Board of Medical Examiners (now Medical Board of California) allowed the practice of acupuncture under the supervision of licensed physicians as part of acupuncture research in medical schools. Since the creation of the Acupuncture Advisory Committee in 1975, a precursor to the Acupuncture Examining Committee, which was later renamed into the Acupuncture Board, members of the public have identified practitioners of acupuncture to be licensed and regulated by the Acupuncture Board. Changing the name now could create confusion on members of the public who have known and are familiar with the SB 628 Page 7 practice of acupuncture and the Acupuncture Board. Additionally, it is unclear if designating acupuncture to be similar to TCM would make the public perceive that TCM is as scientific and evidence-based as the practice of acupuncture. As the NIH had indicated, "Although TCM is used by the American public, scientific evidence of its effectiveness is, for the most part, limited. Acupuncture has the largest body of evidence and is considered safe if practiced correctly." b) Is the education, curriculum, and training requirements for acupuncturists sufficient to authorize them to practice traumatology? This bill includes the performance of traumatology in the list of authorized activities that acupuncturists could perform. The bill defines traumatology as treating both acute and chronic musculoskeletal conditions through stimulation of acupressure points using a range of hands-on body treatment, including traction and massage, and, involves manipulation techniques to realign the musculoskeletal and ligamentous relationships; a technique called bone setting. Although the bill requires a certified traumatologist to maintain a relationship with an orthopedic surgeon when involved in bone setting, it remains unclear if current and future practitioners of acupuncture have sufficient education, training, and clinical experience to perform traumatology safely on consumers, especially since bone setting is outside the current scope of practice of acupuncturists. 5. Arguments in Support. Numerous individuals who support this bill indicate, "Acupuncture is one of the many modalities within TCM. This nomenclature is misleading and problematic, as the scope of practice of a licensed acupuncturist includes other modalities of TCM, and not just acupuncture. Additionally, Traumatology is one of the modalities that constitute TCM. It is a very important part of TCM science, with a complete theoretical system. Before China systematized its health care system, individuals acquired their competence of traumatology through clinical practicum and internships. Although highly skilled, these practitioners' trainings are not yet recognized in California." 6. Arguments: Oppose Unless Amended. The California Orthopaedic Association (Association) has taken an oppose unless amended position and states that the scope of practice of a traumatologist as specified in this bill is broad, including aspects of orthopedics. The Association indicates that in the United States, an orthopedic surgeon must complete four years of undergraduate training, four years of medical school and five years of SB 628 Page 8 orthopaedic residency. This training must be complete in nationally accredited programs and institutions. However, in this bill, the standards for the traumatologist certificate would be set by a subcommittee of the Acupuncture Board, composed of representatives of unnamed clinical and academic settings of traumatology. It states that there are too many unanswered questions about what traumatologists will be allowed to do, and what their training and education must be for this practice to be authorized. 7. Arguments in Opposition. The National Guild of Acupuncture and Oriental Medicine (NGAOM) is opposed to this bill and states the following: "The Acupuncture Licensure Act specifically distinguishes between acupuncture and "Oriental medicine." The Legislators specifically intended to only license needling therapy i.e. acupuncture, and not the broader practice of "Oriental" medicine. Traditional Chinese Medicine remains a non-scientific approach to diagnosing and treating disease that is inconsistent not only with mainstream medicine as it is practiced in the USA but also as it is practiced across different Asian cultures." NGAOM also states that "traumatology is orthopedics. Licensing acupuncturists as traumatologists comprises an encroachment on the orthopedist scope of practice. Additionally, the Association of Korean and Asian Medicine and Acupuncture of California (AKAMAC) states that this bill is a step backward for the practice of acupuncture and poses a grave danger to public safety. AKAMAC, in pointing out the history of TCM, states that the California Legislature did not intend to license TCM practitioners when they licensed acupuncturists or they would have done so, and suggesting that acupuncture and TCM are interchangeable is ambiguous and clouds reality. Though the scope of practice of a licensed acupuncturist in California includes specific related modalities, there is no evidence within this bill that one could conclude that these modalities are the whole of TCM. AKAMAC states that TCM remains a non-scientific, by Western medicine standards, approach to diagnosing and treating disease and is inconsistent with mainstream or Western medicine. Additionally, AKAMAC states that defining acupuncture by a specific restrictive definition of a country does a disservice to other Asian cultures that share in the practice of this health care modality. Furthermore, like NGAOM, AKAMAC believes that traumatology is orthopedics and allowing acupuncturists to practice traumatology is an encroachment on the orthopedist scope of practice and is clearly outside an acupuncturist's scope of practice and current training, education, and expertise. SB 628 Page 9 8. Technical Amendment. The Author would like to strike the word "license" on page 21, line 15, and replace it with "certificate" to more accurately reflect his intent. SUPPORT AND OPPOSITION: Support: Numerous individuals Oppose Unless Amended: California Orthopaedic Association Opposition: Association of Korean Asian Medicine and Acupuncture of California National Guild of Acupuncture and Oriental Medicine Numerous Individuals Consultant:Rosielyn Pulmano