BILL ANALYSIS
SB 577
Page 1
Date of Hearing: June 18, 2002
ASSEMBLY COMMITTEE ON HEALTH
Helen Thomson, Chair
SB 577 (Burton) - As Amended: April 19, 2001
POLICY QUESTIONS :
1)Should a person who discloses to a client that he or she is
not a licensed physician, and who does not perform specified
actions, such as puncturing the skin or prescribing drugs, be
exempt from a violation of the Medical Practice Act?
2)Should the Legislature make a finding that nonmedical
complementary and alternative services do not pose a risk to
the health and safety of California residents, and that
restricting access to those services due to technical
violations of the Medical Practice Act is not warranted?
SENATE VOTE : 33-0
SUBJECT : Health: complementary and alternative health care
practitioners.
SUMMARY : Specifies that a person who discloses to a client
that he or she is not a licensed physician, and does not perform
specified actions such as puncturing the skin or prescribing
drugs, is not in violation of specified provisions of the
Medical Practice Act. Specifically, this bill :
1)Specifies that notwithstanding any other provision of law, a
person who discloses to a client that he or she is not a
licensed physician is not in violation of specified provisions
of the Medical Practice Act which prohibit the practice of
medicine without a license, unless that person does any of the
following:
a) Conducts surgery or any other procedure on another
person that punctures the skin or harmfully invades the
body;
b) Administers or prescribes x-ray radiation to another
person;
c) Prescribes or administers legend (prescription) drugs or
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controlled substances to another person;
d) Recommends the discontinuance of legend drugs or
controlled substances prescribed by an appropriately
licensed practitioner;
e) Willfully diagnoses and treats a physical or mental
condition of any person under circumstances or conditions
that cause or create great bodily harm, serious physical or
mental illness, or death; or
f) Holds out, states, indicates, advertises, or implies to
a client or prospective client that he or she is a
physician.
2)Makes the following legislative findings and declarations:
a) Based upon a comprehensive report by the National
Institute of Medicine and other studies, including a study
published by the New England Journal of Medicine, it is
evident that millions of Californians, perhaps more than
five million, are presently receiving a substantial volume
of health care services from complementary and alternative
health care practitioners. Those studies further indicate
that individuals utilizing complementary and alternative
health care services cut across a wide variety of age,
ethnic, socioeconomic, and other demographic categories;
b) Notwithstanding the widespread utilization of
complementary and alternative medical services by
Californians, the provision of many of these services may
be in technical violation of the Medical Practice Act.
Complementary and alternative health care practitioners
could therefore be subject to fines, penalties, and the
restriction of their practice under the Medical Practice
Act, even though there was no demonstration that their
practices are harmful to the public; and
c) The Legislature intends, by enactment of this bill, to
facilitate access by Californian residents to complementary
and alternative health care practitioners who are not
providing services that require medical training and
credentials. The Legislature further finds that these
nonmedical complementary and alternative services do not
pose a risk to the health and safety of California
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residents, and that restricting access to those services
due to technical violations of the Medical Practice Act is
not warranted.
EXISTING LAW :
1)Licenses and regulates physicians under the Medical Board of
California, and other health care practitioners, including
acupuncturists and chiropractors, under various regulatory
boards within the Department of Consumer Affairs.
2)Specifies that the physician's license authorizes the holder
to use drugs or devices in or upon human beings and to sever
or penetrate the tissues of human beings and to use any and
all other methods in the treatment of diseases, injuries,
deformities, and other physical and mental conditions.
3)Makes it a misdemeanor for any person to practice or attempt
to practice, or to advertise or hold themselves out as
practicing, any system or mode of treating the sick or
afflicted in this state, or who diagnoses, treats, operates
for, or prescribes for any ailment, blemish, deformity,
disease, disfigurement, disorder, injury, or other physical or
mental condition of any person, without having a valid license
as a physician or without being authorized to perform such
services pursuant to a certificate authorized by another
provision of law.
4)Makes it a misdemeanor or a felony for any person who
willfully, under circumstances or conditions which cause or
create risk of great bodily harm, serious physical or mental
illness, or death, takes any of the actions specified in #3)
above.
FISCAL EFFECT : None.
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COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill is
sponsored by the California Health Freedom Coalition (CHFC) to
amend the Medical Practice Act so that practitioners of
complementary and alternative medicine will not be in
violation of the Act's prohibition against practicing medicine
without a medical license, as long as the practitioner informs
his or her clients that he or she is not a licensed physician
and does not perform specified procedures (punctures the skin
or harmfully invades the body, administers or prescribes x-ray
radiation, or prescribes or administers prescription drugs).
CHFC states that because of the broad wording of the Medical
Practice Act, most, if not all of the activities of natural
medicine could be technically illegal, and that this bill
clarifies the Medical Practice Act so that episodes of natural
medicine that are not potentially harmful would no longer be
technically illegal. CHFC argues that this bill would remove
the stigma of technical illegality from the practices of
natural medicine, which are a basic element of health care for
millions of Californians.
2)NEW ENGLAND JOURNAL OF MEDICINE STUDY . The proponents of this
bill point to a study in the New England Journal of Medicine
in 1993 that reported that 34% of adults in the United States
had used at least one unconventional form of therapy in the
prior year, and that a third of those people visited providers
for these therapies. The same author of that study published
a follow-up paper in 1998, also in the New England Journal of
Medicine , which found that alternative medicine use and
expenditures increased substantially between 1990 and 1997,
attributable primarily to an increase in the proportion of the
population seeking alternative therapies, rather than
increased visits per patient. In the 1998 study, two-thirds
of respondents had used at least one complementary or
alternative treatment in their lifetime, and of the
respondents who had ever used a complementary or alternative
treatment, nearly half continued to use alternative or
complementary treatments many years later. The study defined
complementary or alternative medicine as "interventions
neither taught widely in medical schools nor generally
available in U.S. hospitals."
3)SUPPORT . This bill is supported by numerous organizations and
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individuals. The Coalition for Natural Health (CNH) states
that several million people in this state are already
receiving services from unlicensed natural health
practitioners, such as homeopaths, naturopaths, reiki healers,
or ayurvedics. CNH asserts that recent studies show that the
vast majority of people who suffer from either chronic or
acute illness are seeing both an allopathic medical doctor and
an alternative health care provider, with the alternative
practitioner serving in a complementary capacity, thus
ensuring the patient's safety is not compromised.
National Health Freedom Action states in support that this bill
reflects the reality of the presence of a broad domain of
healing arts and trades in the community that provide very
important help and support to citizens of all backgrounds.
The Council for Homeopathic Certification argues that it is in
the interest of consumers to have open access to many health
modalities that are currently being practiced, but that may
inappropriately be defined as the practice of medicine. Given
that the vast majority of physicians have no training in most
alternative modalities, the Council for Homeopathic
Certification argues that it seems sensible to allow those who
are trained to be able to freely practice their skills, as
long as they offer full disclosure and are not practicing
conventional medicine as currently defined. The North
American Society of Homeopaths states that the overly broad
wording in the Medical Practice Act has driven alternative and
complementary medicine practices underground, and that this
bill will give people greater choice to access the types of
health care they seek. The Pacific Academy of Homeopathy
states in support that instead of leading to less standards
and accountability, this bill would actually create a more
professional level of care by giving the professions
legitimacy.
Herbalife International also supports this bill, stating that
this bill would preserve and protect the environment of health
freedom that Californians now enjoy, and would also place
California at the forefront of a national trend towards
greater health care freedom.
4)OPPOSITION . The California Medical Association (CMA) is
opposed to this bill, stating that it is very concerned that
this proposal would allow for the unlicensed practice of
medicine by any individual without any educational
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requirements or medical training, and would subject vulnerable
populations to potential harm. Even more troublesome, CMA
states, is that this bill effectively removes any education
and training qualifications from the law for a modality of
practice that is only defined by what it is not. CMA asserts
that this bill stands legal licensure standards on its head.
Currently, every health professional, including physicians and
the allied health professions such as nursing, optometry,
podiatry, and acupuncture, has a specific scope of practice
that delineates what procedures or activities can be
performed. CMA states that licensing standards have been the
cornerstone to improving health care in California, and that
this bill lacks any licensing standards or oversight by the
state of California, unlike every other health care provider.
CMA states that if this bill simply included what activities
could be performed legally by a complementary or alternative
health care practitioner, the CMA would not be as inclined to
oppose the bill. As it is, CMA argues that this bill could
potentially harm vulnerable populations, particularly the
elderly and those without adequate access to health care.
The Association of Northern California Oncologists (ANCO) states
that it recognizes that complementary and alternative
treatment modalities are of interest, and may be of benefit,
to some people with cancer. However, ANCO states that it is
the responsibility of licensed and credentialed physicians to
ensure that patients considering complementary or alternative
treatments have sufficient information to make informed
decisions about their treatment options. ANCO states that it
is opposed to this bill's lack of standards, licensing
requirements, and oversight for complementary and alternative
health care practitioners.
The California Dietetic Association (CDA) is also opposed to
this bill stating that it believes that consumers must be
protected by legislation that sets standards of education and
practice for all California health care practitioners. CDA
states that the simple disclosure by practitioners that they
are not physicians is no consumer protection, and that most
consumers are not able to adequately evaluate practitioner
credentials. CDA argues that the use of unproven treatments
could have deleterious effects on patients, and that delays in
visiting a qualified health practitioner could result in the
worsening of a medical condition and the acceleration of
health care costs.
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5)QUESTIONS AND COMMENTS .
a) Generally speaking, health care providers seeking
recognition to practice in California have sought
legislation to establish a licensing framework, with
education and training standards and a defined scope of
practice. The approach this bill takes, in effect, is the
reverse: as long as an individual informs a patient that
he or she is not a physician, and does not perform certain
procedures, such as puncturing the skin or prescribing
drugs, then the individual is not violating the practice of
medicine. One of the questions posed by this bill is the
threshold at which California should require some form of
regulation. Should California only regulate practitioners
when there is potential for direct harm, such as the
puncturing of the skin or the prescribing of drugs, or
should California provide some kind of regulation of anyone
representing themselves as capable of healing illnesses or
injuries?
b) This bill proposes to protect unlicensed persons from
prosecution for the unlicensed practice of medicine. While
the Medical Board of California has jurisdiction over the
Medical Practice Act, when they are notified that someone
is practicing medicine without a license, because there is
no license to revoke or otherwise take action against, the
Medical Board of California must turn to the local district
attorney for prosecution as a misdemeanor (or in certain
cases where there is great bodily harm, as a felony).
Misdemeanor or felony prosecutions for the unlicensed
practice of medicine are very rare; it is more common for
the Medical Board of California to take action against a
licensed physician for practicing outside the standard of
care (alternative medicine). While the stated intent of
this bill is to change the Medical Practice Act so that
complementary and alternative medicine is no longer
"technically illegal," there does not appear to be a
crackdown on the unlicensed practice of medicine.
c) One of the effects of this bill, by exempting
complementary and alternative medicine from regulatory
oversight, will be to place a greater "buyer beware"
responsibility on the health care consumer. Given this,
should this bill contain greater consumer disclosure
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requirements, including that the disclosure be in writing?
In addition to informing patients that he or she is not a
physician, should the practitioner disclose that he or she
is not licensed in any capacity by the state of California,
that the treatment is considered alternative or
complementary to traditional or allopathic treatment
methods, and should the patient be required to sign a
consent form indicating he or she was provided with this
information?
REGISTERED SUPPORT / OPPOSITION :
Support
California Health Freedom Coalition (sponsor)
Coalition for Natural Health
American Health Science University
Pacific Academy of Homeopathy
National Health Freedom Action
The Council for Homeopathic Certification
The North American Society of Homeopaths
The California State Homeopathic Medical Society
Herbalife International
Numerous individuals
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Opposition
Association of Northern California Oncologists
California Dietetic Association
California Medical Association
Analysis Prepared by : Vincent D. Marchand / HEALTH /
(916)319-2097