BILL ANALYSIS Ó SB 1246 Page 1 Date of Hearing: June 24, 2014 ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER PROTECTION Susan A. Bonilla, Chair SB 1246 (Lieu) - As Amended: June 15, 2014 SENATE VOTE : 33-0 SUBJECT : Acupuncture. SUMMARY : Extends the sunset date of the California Acupuncture Board (CAB) to January 1, 2017, revises acupuncture program approval requirements, and specifies that any executive officer (EO) appointed on or after January 1, 2015 shall not have served as an executive officer for the CAB prior to January 1, 2015. Specifically, this bill : 1)Extends the sunset date for the CAB and its duties until January 1, 2017. 2)Defines an "approved educational and training program" to mean a program approved by the CAB under current standards, until January 1, 2017. 3)Removes "tutorial programs" from those entities for which CAB is required to establish standards for approval until January 1, 2017. 4)Defines an "approved educational and training program" after January 1, 2017 to mean a school or college offering education and training in the practice of an acupuncturist that meets the following requirements: a) Offers a CAB-approved curriculum that includes at least 3,000 hours, of which at least 2,050 hours are didactic and laboratory training and at least 950 hours are supervised clinical instruction; b) Requires the CAB, within 30 days after receiving curriculum to review the curriculum to determine whether the curriculum satisfies the requirements established by CAB, and notify the school or college, the Accreditation Commission for Acupuncture and Oriental Medicine (ACAOM), and the Bureau of Private Postsecondary Education (BPPE), SB 1246 Page 2 of the CAB's approval. c) Has received full institutional approval, as specified, in the field of traditional Asian medicine or in the case of institutions located outside of California, approval by the appropriate governmental educational authority using standards equivalent to California's; and, d) Is accredited or has been granted candidacy status by ACAOM. 5)Specifies that any EO of the CAB appointed on or after January 1, 2015, cannot have served as the CAB's EO at any time prior to January 1, 2015. 6)Extends the CAB's authority to appoint an (EO) until January 1, 2017. 7)Specifies that an individual who graduates in the first or second graduating class of a school or college that has been granted candidacy status by ACAOM is deemed to have completed an approved educational and training program. 8)Requires the CAB to establish standards for the acceptance of educational training and clinical experience received outside of the United States and Canada beginning on January 1, 2017. 9)Repeals the CAB's authority to investigate and evaluate each school or college applying for approval or continued approval and CAB's authority to recover the associated costs on January 1, 2017. 10)Repeals the $3,000 application fee for the approval of a school or college on January 1, 2017. 11)Makes other technical and clarifying changes. EXISTING LAW: 1)Establishes the CAB to regulate of the practice of acupuncture within the Department of Consumer Affairs (DCA). (Business and Professions Code (BPC) Section 4928 et seq.) 2)Defines "acupuncturist" to mean an individual to whom a license has been issued to practice acupuncture which is in SB 1246 Page 3 effect and is not suspended or revoked. (BPC 4927(c)) 3)Defines "acupuncture" to mean "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 electro-acupuncture, cupping and moxibustion." (BPC 4927(d)) 4)Establishes the CAB until January 1, 2015 and renders the CAB subject to review by the appropriate policy committees of the Legislature. (BPC 4928) 5)Permits the CAB, with the approval of the Director of the DCA, to employ personnel and appoint an EO until January 1, 2015. (BPC 4934) 6)Grants the CAB authority to establish standards for the approval of schools and colleges offering education and training in the practice of acupuncture, including standards for the faculty in those schools and colleges and tutorial programs. (BPC 4939 et seq.) 7)Allows the CAB to charge a fee for the inspection or re-inspection of a school or college of acupuncture for purposes of approval and permits the CAB to recover the direct costs incurred by the CAB in conducting the inspection and evaluation of the school or college. (BPC 4973) FISCAL EFFECT : Unknown COMMENTS : 1)Purpose of this bill . This bill extends the sunset date of the CAB and its authority to appoint an EO until January 1, 2017 and makes other changes related to accreditation requirements and the leadership of the CAB in order to address issues identified during the CAB's 2014 sunset review. This bill is author sponsored. 2)Author's statement . According to the author, "[This bill] extends until January 1, 2017, the provisions establishing the [CAB], directs the board to hire a new [EO] as of January 1, 2015 who has not served as an [EO] before and requires all SB 1246 Page 4 acupuncture schools to be accredited by the [ACAOM]. Unless legislation is carried this year to extend the sunset dates for the [CAB], it will be repealed on January 1, 2015." 3)Oversight Hearings and Sunset Review of Licensing Boards of DCA . In March and April of 2014, the Assembly Business, Professions and Consumer Protection (BPCP) Committee and the Senate Business, Professions and Economic Development (BPED) Committee conducted a joint oversight hearing to review nine regulatory entities, including the CAB. The Committees began their review of these entities in March and conducted three days of public hearings. This bill, like other sunset bills, is intended to implement the legislative changes recommended in the background reports authored by the Senate BPED and Assembly BPCP Committees. The sunset review process itself provides a formal opportunity and mechanism for the DCA, the Legislature, the boards and bureaus, and interested parties and stakeholders to discuss the performance of the boards, bureaus, and committees, and make recommendations for improvements. This is performed on a standard four-year cycle as envisioned by SB 2036 (McCorquodale) (Chapter 908, Statutes of 1994). The major provisions of this bill are based on specific issues raised and addressed in the reports released by the BPED committee. 4)California Acupuncture Board . In 1976, California became the eighth state to license acupuncturists. Acupuncturists are allowed to engage in the practice of acupuncture, electroacupuncture, perform or prescribe the use of oriental massage, acupressure, moxibustion, cupping, breathing techniques, exercise, heat, cold, magnets, nutrition, diet, herbs, plant, animal, and mineral products, and dietary supplements to promote, maintain, and restore health as specified. In order to be licensed as an acupuncturist in California, an applicant must be at least 18 years of age and complete either an educational and training program that includes 3,000 hours of study in the practice of acupuncture, or a supervised tutorial program which is approved by the CAB. An applicant must also pass a California-specific written examination that tests an applicant's knowledge in the practice of acupuncture. The CAB does not currently grant reciprocity to those individuals who have taken and passed the national examination SB 1246 Page 5 for licensure. Currently, there are over 16,000 acupuncture licensees in California. The 2014 BPED background paper for the CAB identified multiple issues relating to the administration and oversight of the CAB, and its ability to properly regulate and license acupuncturists. These issues include a lack of communication to its licensees through CAB's Web site and listserve, application backlogs, failure to query a National Practitioner Databank to check the history of licensees, failure to complete an audit of a national licensing examination, and concerns with the CAB's school approval process. This bill extends the sunset of the CAB and its authority to appoint an EO for two-years until January 1, 2017, specifies that any EO appointed on or after January 1, 2015 may have not served as the EO prior to January 1, 2015, and revises the current approval process for schools. The CAB was last reviewed in 2012. a) Accreditation . The Senate BPED Committee's background paper expressed concerns about CAB's school approval process. Currently, the CAB establishes standards for the approval of schools and colleges offering education and training, including setting standards for faculty and tutorial programs. The approval process requires the CAB to review a school's application, its governance, curriculum, catalogs, and admission policy, among other items. The CAB also conducts onsite visits. According to the CAB, the time required to process and review a new school application can take anywhere from six to 12 months. In addition, those institutions "approved" by CAB must also receive approval from the BPPE. There are currently 38 schools approved by CAB, including 16 located outside of California. Only those students who attend CAB-approved schools are eligible to sit for the licensing examination. Graduates from non-approved schools are not eligible and must either enter an approved program or request special approval from the CAB. The ACAOM is a national accrediting body, approved by the United States Department of Education (USDE), which accredits acupuncture schools both in California and nationwide. According to the organization's Web site, the SB 1246 Page 6 ACAOM is a private, not-for-profit organization whose primary purposes are to establish comprehensive educational and institutional requirements for acupuncture and Oriental medicine programs, and to accredit programs and institutions that meet these requirements. While all other states defer to ACAOM accreditation as being a sufficient condition for applicants to take the licensing exam in their states, California does not accept accreditation by ACAOM, nor does it require graduation from an accredited school as a condition of being eligible to take the licensing exam. Because of ACAOM's nationwide ubiquity, many California schools choose to receive ACAOM's accreditation in addition to the approval of CAB. Currently only 5 of 22 schools approved by the CAB in California do not have ACAOM accreditation as well. All other schools in California have dual approval/accreditation. According to the Senate BPED background paper CAB's administration of its own school-approval process creates a problem for students who are educated in ACAOM-accredited schools that are not approved by CAB. For those students educated outside of California at an educational institution that has not been approved by CAB, if they wish to gain licensure in California, they must complete a CAB-approved training program or receive special approval from the CAB to have their education counted. According to the Senate BPED background paper, the CAB has been slow to approve applications for schools located outside of California due to budget constraints and staff vacancies, although the CAB has recently begun conducting ongoing site reviews of the schools seeking CAB approval. The Senate BPED background paper noted that this issue has been a concern raised during past sunset reviews of the CAB. During the 2012 sunset review process, the Senate BPED Committee then recommended that "it should also be required that these acupuncture schools either have currently, or obtain within a reasonable time, accreditation from an accrediting agency recognized by the [USDE]." This bill addresses the accreditation issue raised by the Senate BPED Committee by revising the current accreditation SB 1246 Page 7 process to include ACAOM and CAB approval for schools and training programs beginning in January 2017. In order for a school or training program to be approved, it would need CAB approval of its curriculum and ACAOM accreditation. This bill provides a two-year implementation delay in order to provide schools, CAB and ACAOM time to review standards and implement the joint process. This bill does not alter the current BPPE approval process, so schools seeking to provide education in the practice of acupuncture would need approval of their curriculum standards from CAB, and receive accreditation from ACAOM and approval from BPPE. b) Continued regulation by the CAB . Although the report noted several areas where the CAB has failed to address important administrative issues, the Senate BPED background paper determined that it is necessary to extend the sunset of the CAB in order to maintain an appropriate regulatory authority for licensees and maintain consumer protection. While the sunset review process typically results in a four year extension for satisfactorily performing entities, this bill only grants the CAB a two-year sunset extension. The CAB will be required to address the Assembly BPCP and Senate BPED Committees on its progress in addressing all the issues identified in the report in 2017. CAB has received two-year extensions in four of its last five sunset reviews. c) Personnel . Currently, the CAB is authorized to employ personnel, including the authority to appoint an EO. As with the other provisions relating to Acupuncture, the CAB's authority to appoint an EO has been extended by two-years until January 1, 2017. However, this bill specifically states that the EO appointed on or after January 1, 2015, cannot have served as the EO of the CAB any time prior to January 1, 2015. 5)Arguments in support . The California State Oriental Medicine Association writes in support, "CSOMA strongly supports a requirement that applicants for licensure under the CAB graduate from a program that has achieved candidacy or accreditation by an accrediting agency recognized by the [USDE] as an authority for the quality of education and training in acupuncture and Oriental medicine. Accreditation-in conjunction with the CAB's continued authority to create, modify, review, and approve SB 1246 Page 8 California-specific curricula requirements-will create a robust regulatory framework for the education of licensed acupuncturist." 6)Arguments in opposition . The National Guild of Acupuncture and Oriental Medicine, writes in opposition, "[this] bill removes the authority of the [CAB] to approve schools. This creates several problems including the elimination of curriculum standards that are written in the regulations. These standards are the highest in the nation." 7)Comments for the Committee . The sunset review process provides the Legislature with the opportunity to address serious concerns raised about boards, bureaus, commissions and other entities which are charged with the protection of consumers and licensee oversight. While many issues can be addressed through the sunset review process and its subsequent legislation, there are often issues that remain unresolved and which need additional time to find resolution. While this bill addresses a number of important issues that were raised during the sunset hearing, the issue of the California Licensure Examination (CALE), its perceived shortcomings, and whether or not it should be phased out in favor of the national exam is notably absent from this bill. This Committee may wish to discuss what further work remains to be done in conjunction with the Senate BPED committee, the Administration, and other relevant stakeholders to finally resolve the licensure examination troubles that have plagued the CAB for the past nine years. Finally, while the authority for many of the boards to appoint EOs and employ personnel is provided in statute, this bill specifies that the EO appointed on or after January 1, 2015, may not have served prior to January 1, 2015. The Committee may wish to inquire of the author as to what necessitates the change in personnel required by this bill. 8)Related legislation . SB 1242 (Lieu) of 2014 amends the Automotive Repair Act and updates the sunset provisions for the Bureau of Automotive Repair. This bill is pending in the Assembly Business, Professions and Consumer Protection Committee. SB 1246 Page 9 SB 1243 (Lieu) of 2014 extends until January 1, 2017 the provisions establishing the Veterinary Medical Board and the term of the executive officer, and extends the Certified Common Interest Development Manager program and the Tax Preparer program to January 1, 2019. This bill is pending in the Assembly Business, Professions and Consumer Protection Committee. SB 1244 (Lieu) of 2014 extends until January 1, 2019 the term of the Structural Pest Control Board, which provides for the licensing and regulation of individuals and business involved in the structural pest control industry in California. The bill also extends the term of the board's executive officer and subjects the board to review by the appropriate policy committees of the Legislature. This bill is pending in the Assembly Appropriations Committee. SB 1245 (Lieu) of 2014 extends until January 1, 2019 the term of the Dental Hygiene Committee of California, which provides for the licensing and regulation of dental hygienists. The bill also extends the term of the committee's executive officer and subjects the committee to be reviewed by the appropriate policy committees of the Legislature. This bill is pending in the Assembly Business, Professions and Consumer Protection Committee. SB 1247 (Lieu) of 2014 extends until January 1, 2019 the term of the California Private Postsecondary Education Act of 2009, which provides for the regulation of private postsecondary educational institutions by the BPPE within the Department of Consumer Affairs. The bill also extends the term of the Student Tuition Recovery Fund under the administration of the bureau, and subjects the bureau to review by the appropriate policy committees of the Legislature. This bill is pending in the Assembly Business, Professions and Consumer Protection Committee. AB 1147 (Bonilla, Gomez & Holden) of 2013 revises and recasts the massage therapy act and extends the operation of the California Massage Therapy Council until December 1, 2017. This bill is pending in the Senate Business, Professions and Economic Development Committee. AB 2741 (Bonilla) of 2014 extends the sunset date on the Professional Fiduciaries Bureau (PFB) from January 1, 2015 to SB 1246 Page 10 January 1, 2019. This bill is pending in the Senate Business, Professions and Economic Development Committee. AB 2740 (Bonilla) of 2014 requires the Bureau of Electronic and Appliance Repair, Home Furnishings and Thermal Insulation (BEARHFTI) to be subject to review by the Legislature before January 1, 2019, and requests that BEARHFTI report on specified concerns to the Legislature by March 1, 2015. This bill is pending in the Senate Business, Professions and Economic Development Committee. 9)Previous legislation . SB 1236 (Price) Chapter 332, Statutes of 2012, extends the sunset dates of numerous boards, committees and programs under the Department of Consumer Affairs (DCA) and makes related conforming and technical changes. AB 1391 (Eng) of 2010, would have extended the sunset date of the CAB and its authority to appoint an EO from January 1, 2011 to January 1, 2017. This bill was held in the Senate Business, Professions and Economic Development Committee. SB 963 (Ridley-Thomas), Chapter 385, Statutes of 2008, extended the sunset date on seven boards and their respective EOs until January 1, 2011. SB 233 (Figueroa) of 2005 provides for the sunset of the Board and modifies the definition of acupuncture. This bill was held in the Senate Appropriations Committee. REGISTERED SUPPORT / OPPOSITION : Support American College of Traditional Chinese Medicine AOMA Graduate School of Integrative Medicine Atlantic Institute of Oriental Medicine California State Oriental Medical Association Council of Colleges of Acupuncture and Oriental Medicine Japanese Acupuncture Association of California Oregon College of Oriental Medicine Pacific College of Oriental Medicine Southwest Acupuncture College Multiple individuals Association of Korean Asian Medicine and Acupuncture of SB 1246 Page 11 California (04/23/14 version) Council of Colleges of Acupuncture and Oriental Medicine (04/23/14 version) Southern California University of Health Sciences (04/23/14 version) Opposition American Traditional Chinese Medicine Traumatology Association American Association of Acupuncture & Traditional Chinese Medicine Council of Acupuncture and Oriental Medicine Associations National Guild of Acupuncture and Oriental Medicine California Acupuncture Medical Association (04/23/14 version) California Acupuncture Medicine Association (04/23/14 version) California Acupuncture Oriental Medicine Association (04/23/14 version) California Certified Acupuncturists Association (04/23/14 version) Chiu's Acupuncture Clinic (04/23/14 version) CNA Medical Group, Inc. (04/23/14 version) Korean Acupuncture & Asian Medicine Association in the U.S.A. (04/23/14 version) Li Sage Acupuncture Clinic (04/23/14 version) North American Oriental & Western Medicine Academy (04/23/14 version) Pine Springs Acupuncture Clinic (04/23/14 version) Sacramento Chinese Culture Foundation (04/23/14 version) United Acupuncture Association (04/23/14 version) United California Practitioners of Chinese Medicine (04/23/14 version) Multiple individuals Analysis Prepared by : Elissa Silva / B.,P. & C.P. / (916) 319-3301