BILL ANALYSIS
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|Hearing Date:April 5, 2010 |Bill No:SB |
| |1050 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 1050Author:Yee
As Amended:March 25, 2010 Fiscal:Yes
SUBJECT: Osteopathic Medical Board of California: Naturopathic
Medicine Committee.
SUMMARY: Revises the membership of the Osteopathic Medical Board of
California to remove two naturopathic doctor members, and instead
include two additional public members, appointed by the Senate Rules
Committee and the Speaker of the Assembly; revises the membership of
the Naturopathic Medicine Committee to require 5 members to be
naturopathic doctors, 2 members to be physicians and surgeons, and 2
public members; clarifies the duties and responsibilities of the
Naturopathic Medicine Committee.
Existing law:
1) Licenses and regulates osteopathic physicians and surgeons by the
Osteopathic Medical Board of California (OMBC) under the
Osteopathic Act. Provides that the 9-member OMBC is composed of
the following members appointed by the Governor:
a) 5 osteopathic physicians and surgeons
b) 2 naturopathic doctors
c) 2 public members.
1) Licenses and regulates naturopathic doctors by the Naturopathic
Medicine Committee (Committee) within the Board under the
Naturopathic Doctors Act. Provides that the 9-member Committee is
composed of the following members appointed by the Governor:
a) 3 naturopathic doctors
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b) 3 physicians and surgeons
c) 3 public members.
2) Authorizes the Committee, with the approval of the OMBC, to appoint
an executive officer, and authorizes the OMBC to employ other
officers and employees as necessary to carry out the duties of the
Committee.
This bill:
1) Changes the membership of the OMBC as follows:
a) Eliminates the 2 naturopathic doctor members of the OMBC
b) Adds 2 public members to the OMBC, appointed by the Senate
Rules Committee, and the Speaker of the Assembly.
2) Changes the membership of the Committee as follows:
a) 5 naturopathic doctors
b) 2 physicians and surgeons
c) 2 public members.
3) Authorizes the Committee to appoint an executive officer, and
authorizes the Committee to employ other officers and employees as
necessary.
4) Specifies that the Committee is solely responsible for
implementation of the Naturopathic Medicine Act.
5) Makes the Committee responsible for reviewing the quality of the
practice of naturopathic medicine carried out by licensed
naturopathic doctors.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
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1. Purpose. This bill is sponsored by Osteopathic Physicians and
Surgeons of California (Sponsor) to remove the newly added
naturopathic doctor positions from the membership of the
Osteopathic Medical Board of California, thereby returning the
membership of the OMBC to 5 osteopathic physicians and surgeons and
4 public members.
The Sponsor states that the Osteopathic Act provides for the licensure
and oversight of California's 5,000 osteopathic physicians and
surgeons through the OMBC. Since 1922, the OMBC's five physician
members (as well as staff and two public members added in 1991)
have been exemplary in protecting consumers and promoting the
highest professional standards in the practice of osteopathic
medicine.
2. Background: Osteopathic Medical Board. The Osteopathic Medical
Board of California was initially established as the Board of
Osteopathic Examiners by initiative statute in 1922. That
initiative established regulation by an entity separate from the
Medical Board of California (MBC) because of a perception of
discrimination against doctors of osteopathy (DOs) by the
predecessor to the MBC. At the time, some in the medical
profession viewed physicians trained in osteopathic medicine as
lesser professionals. In 1919, they succeeded in halting the Board
of Medical Examiners' longstanding practice of licensing
osteopathic trained physicians. The 1922 initiative assured the
continued existence of DOs as a licensed branch of the medical
profession.
Subsequent initiative statutes have modified the initial law, and it
is clear that the Legislature has considerable authority to amend
the osteopathic law. Unlike the Chiropractic Act (which was also
enacted by initiative but is not amendable), a 1962 initiative
explicitly allows the legislature great leeway to amend the
Osteopathic Act. In fact, the only restriction on the
Legislature's power is that it may not fully repeal the Act unless
the number of licensed DOs falls below 40 (Osteopathic Initiative
Act, Section 3600-3). Short of that, the Legislature may make any
amendment to the Act that it finds appropriate.
Prior to 2002, the Board was an independent, free-standing board. In
2002, the Board was brought within the auspices of the state's
other consumer-protecting boards and commissions, including the
MBC, into the Department of Consumer Affairs (DCA) by (SB 26,
Figueroa, Chapter 615, Statutes of 2002).
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The OMBC has the responsibility and sole authority to issue licenses
to practice osteopathic medicine in California. The OMBC is also
responsible for ensuring enforcement of legal and professional
standards to protect California consumers from incompetent,
negligent or unprofessional doctors of osteopathic medicine.
3. Background: Former Bureau of Naturopathic Medicine. The Bureau of
Naturopathic Medicine (Bureau) and the Naturopathic Doctors Act
became operative on July 1, 2004
(SB 907, Burton, Chapter 485, Statutes of 2003). As originally
established the Bureau was placed under the authority of the
Director of the DCA, and the chief of the Bureau was appointed by
the Director. The Director was also responsible for establishing
an advisory council to the Bureau consisting of three California
licensed naturopathic doctors, three California licensed physicians
and surgeons, and three public members.
The Bureau licensed, regulated, and investigated complaints against
California naturopathic doctors and provided consumers with
licensing and disciplinary information. The bureau was completely
funded by application and licensing fees and its staff was
responsible for answering public inquiries, analyzing licensure
documents, issuing licenses, responding to correspondence,
coordinating legislative, regulatory, and budgetary activities,
preparing reports, and administering disciplinary and enforcement
activities. The Bureau licensed more than 300 naturopathic
doctors, and had an annual budget of $133,000, and a staff of .9
authorized positions.
4. Hearing on Governor's Elimination, Consolidation and Reorganization
Proposals and Merger of Bureau of Naturopathic Medicine with
Osteopathic Medical Board. In the May Revision of the 2009-2010
State Budget (May Revise), the Administration's recommendation was
to eliminate the Bureau of Naturopathic Medicine, but there was no
indication whether licensure would continue or what entity if any
would be responsible for licensure and regulation of this
profession. Unlike boards under DCA, that are only subject to a
sunset date, the sunset of the Bureau in July 1, 2010, would have
sunset the entire Naturopathic Doctors Act and thus eliminated
licensure of naturopathic doctors in California. This did not
appear to be the intent of the Legislature just having recently
provided for licensure of naturopaths in California.
In the summer of 2009, the Business, Professions and Economic
Development Committee (BP&ED Committee) convened a hearing on the
Governor's Elimination, Consolidation and Reorganization Proposals
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made in the May Revise. The Budget Conference Committee had
requested that the Committee consider a number of the specific
elimination, consolidation and reorganization proposals made by the
Governor, as well as other consolidation proposals identified by
the BP&ED Committee. In the hearing, the BP&ED Committee received
testimony from the Administration, DCA, boards and bureaus that
would be affected by the proposed changes, and also from the
Legislative Analyst's Office (LAO), the Center for Public Interest
Law, professional associations, members of the regulated
professions, and members of the public. The BP&ED Committee made
its recommendations in a Report to the Conference Committee. Those
recommendations and the legislative changes necessary to implement
the recommendations were the bases for ABX4 20 (Strickland, Chapter
18, Statutes of 2009).
At that hearing, the BP&ED Committee considered 13 separate
consolidation or elimination proposals, including whether the
Bureau of Naturopathic Medicine should be eliminated. That
proposal essentially would have discarded the Naturopathic Doctors
Act, eliminating the licensing and regulation of naturopathic
medicine in California. The BP&ED Committee rejected the
Governor's proposal, and instead, approved on an 8-1 vote, a motion
to eliminate the Bureau of Naturopathic Medicine and move oversight
responsibilities to the OMBC; create a 9-member Naturopathic
Medicine Committee under the OMBC and add two naturopathic doctors
to the OMBC. Those changes were included in ABX4 20.
In placing naturopathic licensing and regulation under the OMBC, the
overriding concern was first, providing naturopathic doctors an
opportunity to have a voice in the licensing of their profession;
and second, protection of consumers by utilizing an effective
enforcement program of an existing board. By placing two
naturopathic doctors on the OMBC, it was anticipated that this
would provide some direction and governance for the profession.
The OMBC also has had a solid record in protecting California
consumers and a sound enforcement program.
5. Concerns About Placing Naturopathic Doctors on the OMBC and the
Function and Governance of the OMBC. The Sponsor states that with
the combining of the Bureau of Naturopathic Medicine into the OMBC
in the July 2009 Budget package, for the first time in the OMBC's
86-year history, and in the only state in the country, two
non - physician providers with a competing philosophy would sit in
judgment of California's osteopathic physicians.
The Sponsor believes that the integration of the two professions on
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the same oversight board confuses and misleads the public by
implying that the training, education and credentialing of
naturopathic doctors is equivalent to that of osteopathic
physicians and surgeons. Patients may believe they're seeing a
physician when in fact they're visiting a naturopathic
practitioner, whose course of treatment is much different and more
limited, according to the Sponsor.
The Sponsor argues that osteopathic physicians and surgeons undertake
rigorous, evidence based educational requirements and 3-10 years of
training in excess of that required of naturopathic doctors.
Osteopathic physicians are engaged and qualified in the unlimited
practice of medicine, whereas naturopathic doctors are unable to
independently prescribe medication or perform surgery.
According to the Sponsor, by combining the two regulatory programs,
OMBC staff will be forced to shift valuable time away from
performing its critical duty of public protection.
The Sponsor affirms that the integration of the OMBC and the bureau
has created several problems, including: practitioners of
divergent modes of practice and competing philosophies are now
judging the others' clinical skills, and discouraging osteopathic
medical students from entering California residency programs.
6. Recent Amendments Deal with the Concerns of Osteopathic Physicians
and Surgeons and Naturopathic Doctors. As amended by the Author,
this bill would remove the appointment of two naturopathic doctors
to the OMBC and add instead two public members to the OMBC, with
one to be appointed by the Senate and the other by the Assembly.
This provides consistency with other healing arts boards under the
DCA. Amendments also allow the Naturopathic Medicine Committee to
appoint its own executive officer and clarify that the Committee
will be solely responsible for enforcing and implementing its
duties to protect the public and by giving it control over its own
destiny. As stated by the Sponsor, this bill effectively ensures
DCA's ability to hold each board accountable for patient protection
while honoring the intent of AB X4 20, to keep government
efficient.
7. Arguments in Support. California Naturopathic Doctors Association
(CNDA) states that the recent amendments to SB 1050 will provide
further autonomy for the Naturopathic Medicine Committee and the
OMBC, ensuring there is no unreimbursed utilization of OMBC
resources. In listing its reasons to support the bill, CNDA states
the amendments will allow the Committee to hire their own executive
officer, clarify that all disciplinary matters of naturopathic
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doctors are handled by the Committee, and specify that the OMBC
will have no oversight and will not be responsible for any
decisions made by the Committee. Additionally, to preserve the
autonomy of the OMBC, the Naturopathic Doctors will be removed as
members of the OMBC and the Committee structure will be
reconstituted to provide a majority of Naturopathic Doctors.
8.Suggested Author's Amendment. Contained within the administrative
provisions of each of the licensing acts in the Business and
Professions Code is an affirmative mandate that protection of the
public shall be the highest priority of that board or bureau, and
that whenever protection of the public is inconsistent with other
priorities, the protection of the public shall be paramount. The
Naturopathic Doctors Act does not contain this mandate.
BP&ED Committee staff recommends the following amendment:
On page 2, between lines 5 and 6, insert:
Section 3620.1 is added to the Business and Professions Code to
read:
3620.1 Protection of the public shall be the highest priority for
the committee in exercising its licensing, regulatory, and
disciplinary functions. Whenever the protection of the public is
inconsistent with other interests sought to be promoted, the
protection of the public shall be paramount.
SUPPORT AND OPPOSITION:
Support:
Osteopathic Physicians and Surgeons of California (Sponsor)
California Academy of Family Physicians
California Medical Association
California Naturopathic Doctors Association
Opposition:
None received as of March 31, 2010.
Consultant:G. V. Ayers
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