BILL ANALYSIS Ó AB 758 Page 1 Date of Hearing: April 28, 2015 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Susan Bonilla, Chair AB 758 (Chau) - As Introduced February 25, 2015 SUBJECT: Acupuncture: education and training programs. SUMMARY: Allows acupuncture schools to receive approval from another accreditation agency recognized by the United States Department of Education (USDE) as an alternative to the Accreditation Commission for Acupuncture and Oriental Medicine (ACOAM), requires the California Acupuncture Board (CAB) to conduct site visits to acupuncture schools, and requires the CAB to impose a fee for the site visits. EXISTING LAW: 1)Provides for the licensure and regulation of the practice of acupuncture by the CAB within the Department of Consumer Affairs (DCA). (Business and Professions Code (BPC) § 4928 et seq.) 2)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.) AB 758 Page 2 3)Defines an "approved educational and training program," for purposes of licensure as an acupuncturist, as a school or college that meets the following: (BPC § 4927.5(a)) a) Offers curriculum that has been submitted to and approved by the CAB and includes specified hours of didactic and laboratory training and supervised clinical instruction; b) Is approved by the Bureau of Private and Postsecondary Education (BPPE) or the appropriate out-of-state governmental educational authority; and, c) Is accredited or granted candidacy status by the ACAOM, or has submitted a letter of intent to pursue accreditation to the ACAOM. 4)Requires the CAB, until January 1, 2017, to investigate and evaluate each school or college applying for approval under BPC § 4939 and may utilize and contract with consultants to evaluate those training programs. 5)Requires the CAB, commencing January 1, 2017, to review a school's curriculum, within 30 days of receiving curriculum from the school, determine whether the curriculum satisfies the CAB's requirements, and notify the school or college, the ACAOM, and the BPPE of whether the CAB has approved the curriculum. (BPC § 4927.5(b)) THIS BILL: 6)Defines "approved educational and training program" as a school or college offering education and training in the practice of an acupuncturist that, among other things, meets AB 758 Page 3 any of the following: a) Is accredited by the ACOAM or another accreditation agency recognized by the USDE; b) Has been granted candidacy status by the ACOAM or another accreditation agency recognized by the USDE; and, c) Has submitted a letter of intent to pursue accreditation to the ACOAM or another accreditation agency recognized by the USDE within 30 days of receiving full institutional approval, and is granted candidacy status within three years of the date the letter was submitted. 7)Requires the CAB, within 30 days after receiving the curriculum, to review the curriculum, determine whether the curriculum satisfies the requirements established by the CAB, and notify the school or college, the ACOAM, any other accreditation agency recognized by the USDE, and the BPPE of whether the CAB has approved the curriculum. 8)States that the section will become operative on January 1, 2017. 9)Requires the CAB to conduct site visits to each site of a school or college of acupuncture to inspect or reinspect the school or college for purposes of approval or continued approval of its training program. 10)Requires the CAB to impose a fee for the site visits in an amount to recover direct reasonable regulatory costs incurred by the CAB in conducting the inspection and evaluation of the school or college. FISCAL EFFECT: Unknown. This bill has been keyed fiscal by the AB 758 Page 4 Legislative Counsel. COMMENTS: 11)Purpose. This bill is sponsored by the Council of Acupuncture and Oriental Medicine Associations . According to the author, "AB 758 strengthens California Acupuncture standards by requiring schools for acupuncture and Chinese medicine to receive accreditation by ACAOM or any [USDE] approved accrediting agency. To ensure compliance with state education and training standards, it also requires the CAB to conduct site visits. Since the passage of [SB 1246] concerns have been raised among the acupuncture community about ACAOM and the removal of the authority for the CAB to perform site visits of schools? The CAB began conducting site visits of acupuncture schools in 2014 and found compliance issues with many of the 16 acupuncture schools they reviewed which are also accredited by ACAOM. Without CAB site visits acupuncture schools could go many years without being in compliance with state law without an ACAOM review to ensure compliance. Without changes to California law, we could weaken what are considered the highest acupuncture standards in the Nation." 12)Background. In 2014, the Senate Business and Professions Committee and the Assembly Business, Professions and Consumer Protection Committee (Committees) conducted joint oversight hearings to review nine regulatory entities, including the CAB. The Committees began their review of the licensing agencies in March 2014, and conducted two days of hearings. The resulting sunset bills were intended to implement Committee staff recommendations reflected in the Background Papers prepared for each agency reviewed. SB 1426 (Lieu), Chapter 397, Statutes of 2014, reflected the recommendations for CAB. AB 758 Page 5 CAB School Approval. The CAB approves training programs at acupuncture schools and colleges, in particular, their curriculum programs, to ensure they meet the standards adopted by the CAB. The school approval process requires review of the application, governance, program curriculum, catalogs, admission policies, student and faculty policies and procedures, and financial solvency. Due to several issues raised during the 2014 Sunset Review Oversight Hearings, including a failure to conduct site visits for 20 years, the CAB will only perform school site visits to review implementation of policies and procedures, facilities and clinical training until January 1, 2017. Additionally, it is important to note that it is no longer common practice for licensing entities, under the DCA, to approve schools versus utilize a private national accreditation organization to approve training programs. ACAOM Accreditation. The ACAOM is the only national, USDE-approved accrediting agency for the field of acupuncture and oriental (Asian) medicine. While many other states defer to ACAOM accreditation as being a sufficient condition for applicants to take the licensing exam in their states, California has traditionally conducted its own school approval process. As of January 1, 2017, this will no longer be the case. There are approximately 65 acupuncture schools throughout the U.S., 36 of which are approved by the CAB. Twenty one of the CAB-approved schools are located in California and 15 are located in other states. Sixty of the 65 schools are already accredited by the ACAOM. In 2004, the Little Hoover Commission (LHC) conducted a AB 758 Page 6 comprehensive comparative analysis of the school approval processes of the ACAOM and the CAB. The LHC's report found that the processes used by ACAOM appeared to be "superior" to the school approval process used by the CAB and could be used by the state to ensure the quality of education for potential licensees. According to the Committees' 2014 Sunset Review Background Paper, because CAB performs its own school approvals, there are a number of consequences and problems. These include: a) Students who are educated in accredited schools that are not approved by CAB receive only partial credit for their training. If they wish to gain licensure in California, they must complete a CAB approved training program. b) The CAB is slow to approve applications for schools located outside of California due to budget constraints. c) The CAB had just began conducting site visits in 2014, after a 20 year hiatus; and stated that because of staff vacancies, the process was moving slowly. In the 2012 Sunset Review Background Paper to the CAB, the Committee wrote: "?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 United States Department of Education. Especially since the accrediting process for these schools appears to be superior to that of the Board. At some time in the future, consideration could be given, based on the success of accreditation of these schools, to eliminating the Board's responsibility and need for approving acupuncture AB 758 Page 7 educational programs." As a result of the sunset review recommendations from 2012 and 2014, the Committees thoroughly investigated the available USDE-approved acupuncture accrediting organizations. After a comprehensive investigation and review of the available evidence, the Committees decided to recommend ACOAM as the required accreditation entity for California acupuncture schools, which was enacted by SB 1246 (Lieu), Chapter 397, Statutes of 2014. The Legislature clearly indicated that using a national, USDE-approved acupuncture school accreditation agency will help free up the CAB's time and resources to address the other salient issues identified during its prior sunset reviews. ACOAM and USDE/NACIQI Review. In a letter to the Committees dated March 9, 2015, the National Guild for Acupuncture and Oriental Medicine discussed ACAOM's 2011 USDE and National Advisory Committee on Institutional Quality and Integrity (NACIQI) review. The letter included editorial statements pointing out issues ACAOM was required to address in order to maintain USDE approval. In response, ACAOM sent a letter to the Committees, dated March 26, 2015, to clarify and explain the issues. First, it explained, "The primary context of the letter refers to a perceived negative review ACAOM received in 2011 from the [USDE] and the [NACIQI]. ACAOM, like other accrediting agencies, is on a five-year recognition cycle with USDE? The last review was conducted in 2011, followed by a compliance report review in 2013 and the next comprehensive review for continuing recognition will occur in 2016." Among other things, ACAOM noted that the issues identified in the 2011 review have since been resolved. The NACIQI deemed AB 758 Page 8 ACAOM "fully compliant" in its June 2013 compliance review and ACAOM remains USDE approved. ACAOM's next review will occur in 2016. 13)Prior Related Legislation. SB 1246 (Lieu), Chapter 397, Statutes of 2014, among other things, removed CAB's authority to approve schools and requires acupuncture schools to be accredited by the ACOAM and repealed the CAB's authority to investigate and evaluate each school or college applying for approval or continued approval. SB 1236 (Price), Chapter 332, Statutes of 2012, extended the sunset date for the CAB and other boards under the DCA and the term of the Board's Executive Officer by two years, until January 1, 2015, and made technical and clarifying changes to statutes governing CAB-approved acupuncture training programs. ARGUMENTS IN SUPPORT: The Council of Acupuncture and Oriental Medicine Associations supports the bill and writes, "AB 758 will amend language in the Practice Act that was removed last year under SB 1246. Unfortunately, that 2014 bill will open California to a flood of graduates who wish to take the California Acupuncture Licensing Exam. A "free for all" situation will reduce public safety and cause harm to our profession. Authority to regulate schools and graduates of those schools and graduates of those schools should remain within California instead of in the hands of an outside agency." The Asian Pacific Islander American Public Affairs Association writes in support, "California has the most acupuncture licensees and the most acupuncture schools in the nation. AB 758 will prevent California from becoming an "open" state for a AB 758 Page 9 graduate from any ACAOM approved school to become licensed in our state. California regulation of acupuncture must conducted by a California regulatory agency." ARGUMENTS IN OPPOSITION: The Council of Colleges of Acupuncture and Oriental Medicine writes in opposition to the bill, "The [Committee] was instrumental in 2014 in passing SB 1246 unanimously as did the full Assembly and Senate and every other legislative committee. AB 758 represents a direct effort to undermine the unanimous decision of the California legislature?As the committee is aware, apart from ACAOM, there is currently no other agency recognized by the USDOE for professional accreditation of [acupuncture] schools and programs in the United States. Regional accrediting agencies assess institutional capacity." The California State Oriental Medical Association opposes the bill unless amended to require programmatic accreditation by a specialized agency recognized by the USDE, specifically it writes, "Effective in 2017, last year's Sunset Review bill limited the CAB's role in educational oversight to establishing curricular requirements for acupuncture training programs. Accordingly, SB 1246 also eliminated the CAB's authority to investigate and evaluate schools...Given that curricular reviews can be effectively performed via administrative desk checks, there is no discernible purpose for conducting site visits as part of this process. Finally, recent CAB site visit reports indicate that it may already be stretching its regulatory authority by enforcing broadly defined rules in an exceptionally specific and arbitrary fashion. This enforcement activity raises concerns regarding potential underground regulation. By extending site visit activities beyond the CAB's 2017 reduction in regulatory scope, AB 758 heightens these concerns." AB 758 Page 10 POLICY ISSUES FOR CONSIDERATION: Sunset Review Recommendations. The intent of SB 1246 was to implement the recommendations made by the Committee staff after the thorough sunset review process had been conducted. This bill would undo several of the solutions designed to rectify the identified problems with the CAB, including requiring the CAB to use a national accreditation organization and remove the CAB's authority to conduct school site visits. In addition, the changes have not gone into effect-they will become operative on January 1, 2017-when the CAB is next reviewed by the joint oversight Committees. Ongoing discussions regarding the CAB and ACAOM school approval are taking place in preparation for the law to go into effect, and the Committees are working to resolve the CAB's concerns with the loss of its school-approval authority. Therefore, this measure is premature. Agency Transparency and Quality. The CAB and the sponsors of this bill argue that because ACAOM is not a "non-governmental agency," there are transparency issues regarding ACAOM's process. Further, the CAB argues that ACAOM's school approval standards do not meet CAB's own standards which are detailed in Title 16 California Code of Regulations § 1399.434-1399.436. While ACAOM, and most other national accrediting organizations, are not required to meet the same open meeting and public document standards that the CAB must meet, almost all of ACAOM's processes, procedures, and standards are publicly available. ACAOM has also been very forthcoming with producing documents and answering questions presented by the legislative policy Committees. AB 758 Page 11 Further, ACAOM's standards are available for the Committees to examine, are developed through a public comment period, and are approved by the USDE. While CAB's general standards are listed in its regulations, it has yet to produce the specific criteria it uses when approving schools. For instance, the CAB has criticized ACAOM's clinical chart review process. However, when asked to produce the criteria for chart review that the CAB has been using on recent school site visits, it was unable to. The "Flood" of Out of State Acupuncturists. A popular concern raised by supporters of this measure is the possibility that the law, which will go into effect in 2017, will allow a flood of individuals from outside of California to take the California licensing examination. This is reflected in the form letters sent in from various organizations and individuals as well as statements made by the CAB staff during public CAB meetings last year. As was thoroughly discussed during last year's Sunset Review hearings, this is quite unlikely. The law states that the CAB must set the curriculum standards that acupuncture schools must adhere to. The California curriculum standards are the most stringent in the nation. As such, out of state applicants would be unable to apply for licensure in this state because the curriculum standards in their academic programs are not equivalent to those required by the CAB. In essence, the out of state institutions would need to completely change their curriculum standards in order to conform to California's curriculum standards so that their graduates would be eligible to take the California licensing examination. Accreditation by a USDE Approved Entity. On its face, the request for the law to be expanded to include school approval by any entity approved by the USDE may not seem problematic. However, if this happens, the current standards for school approval would be lessened-which is contradictory to what the AB 758 Page 12 CAB indicates it desires. For example, this bill would allow a number of regional accreditors, who focus broadly on approving an institution e.g. faculty and premises, not the specifics of an acupuncture program, to be the entity that approves acupuncture schools and programs. This is contradictory to what the CAB claims it desires e.g. a regional accreditor would not be involved in the specifics of a program such as the clinical chart review etc. Based on the aforementioned reasons, in combination with the recent review of the CAB, the Legislature's recent decision to remove the CAB's school approval authority and require accreditation of all acupuncture schools by the ACAOM, as well as the fact that the law has not even been implemented, it is not clear that the need for this bill has been established. REGISTERED SUPPORT: Council of Acupuncture and Oriental Medicine Associations (sponsor) Alhambra Medical University American Association of Chinese Medicine and Acupuncture Asian Pacific Islander American Public Affairs Association California Acupuncture Medical Association California Acupuncture Oriental Medicine Association AB 758 Page 13 California Labor Federation Chinese Herb Trade Association of America Heilongjiang University of Chinese Medicine Korean Acupuncture & Asian Medicine Association National Guild of Acupuncture and Oriental Medicine Office and Professional Employees International Union United Acupuncture Association Over 35 individuals REGISTERED OPPOSITION: Acupuncture & Integrative Medicine College American College of Traditional Chinese Medicine California State Oriental Medical Association Council of Colleges of Acupuncture and Oriental Medicine AB 758 Page 14 Emperor's College Southern California University of Health Sciences Analysis Prepared by:Le Ondra Clark Harvey, Ph.D. and Vincent Chee / B. & P. / (916) 319-3301