BILL ANALYSIS �
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|Hearing Date: April 23, 2012 |Bill No:SB |
| |1488 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 1488 Author: Yee
As Introduced: February 24, 2012 Fiscal: No
SUBJECT: Healing arts: traditional Chinese Medicine traumatologist
certification.
SUMMARY: Establishes a "Traditional Chinese Medicine Traumatology
Council" as a nonprofit organization for the purpose of developing
standards for, and certifying the practice of, traditional Chinese
Medicine traumatology and includes requirements for the membership of
the Council, for certification of traumatologists, and protection of
the title of "Certified traditional Chinese Medicine traumatologist,"
and prohibits the practice of medicine or chiropractic practice.
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:
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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, 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.Provides for certification of massage practitioners and massage
therapists, as defined, by a Massage Therapy Organization (MTO)
and specifies that the MTO is a nonprofit organization meeting
specified requirements, and imposes certain duties on the MTO.
(Business and Profession Code (BPC �� 4600 (e), 4600.5 (a) and
(b)(2))
5.Provides that the MTO is to be governed by a board of directors
selected from various related groups, organizations and
entities, including law enforcement, involved with both the
business and practice of massage therapy. (BPC � 4600.5 (b)(1))
6.Requires the MTO to issue either a " massage practitioner "
certificate or a " massage therapist " certificate to an
applicant, who submits a written application and provides
satisfactory evidence that he or she meets all of the specified
education, experience or examination requirements, or has a
current valid license from a local jurisdiction and meets other
education and/or experience requirements. (BPC � 4601 (b))
7.Provides for various grounds for discipline against a
certificate holder or for denial of a certificate to an
applicant, including: unprofessional conduct; procurement of
certificate by fraud; misrepresentation or mistake; conviction
of a felony or misdemeanor substantially related to their
qualifications, functions or duties, or committing any
fraudulent, dishonest, or corrupt act that is substantially
related; and, committing any act punishable as a sexually
related crime. (BPC � 4603)
8.Provides that it is an unfair business practice for any person
to state or advertise or put out any sign or card or other
device, or to represent to the public through any print or
electronic media, that he or she is certified, registered, or
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licensed by a governmental agency as a massage therapist or
practitioner. (BPC � 4605)
9.Provides that it is an unfair business practice for any person
to use the title of "certified massage therapist" or certified
massage practitioner" or any other term, such as "licensed,"
"registered," or "CMT," that implies or suggest that the person
is certified as a massage therapist or practitioner without
meeting the requirements as specified. (BCP � 4606)
10.Establishes the State Board of Chiropractic Examiners which
licenses and regulates the chiropractic profession pursuant to the
Chiropractic Act. (Chiropractic Initiative Act, � 1, adopted by the
electors November 7, 1922)
11.Makes the unlawful practice of medicine a public offense with
both misdemeanor or felony penalty provisions which would apply.
(BPC � 2052)
This bill:
1)Defines a "Certified traditional Chinese Medicine traumatologist" as
a person who has been certified by the Traditional Chinese Medicine
Traumatology Council to perform traditional Chinese Medicine
traumatology.
2)Defines "Traditional Chinese Medicine traumatology" as including a
range of treatments to address both acute and chronic
musculoskeletal conditions, as well as many nonmusculoskeletal
conditions, and techniques including, but 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.
3)Establishes the "Traditional Chinese Medicine Traumatology Council
(Council) as a nonprofit organization for the purpose of developing
standards for, and certifying the practice of, traditional Chinese
Medicine traumatology.
4)Provides that the Council shall consist of seven members, composed
of three representatives from the clinical settings of traumatology,
two representatives from the California Orthopaedic Association, and
one representative each from the Medical Board of California and the
California Medical Association.
5)Provides that the representatives from the clinical settings of
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traumatology shall be selected by professional societies,
associations, or other entities, as specified, whose membership are
comprised solely of practitioners of traditional Chinese Medicine
traumatology.
6)Provides that the Council shall meet and confer to determine the
certification standards, including the level of experience and
training needed for an individual to qualify for traditional Chinese
Medicine traumatology certification.
7)Provides that the Council shall issue a certificate for certified
traditional Chinese Medicine traumatology to a person who meets the
following requirements, and as determined pursuant to the standards
developed by the Council:
a) Is at least 18 years of age.
b) Furnishes satisfactory evidence of training and clinical
experience that meets the standards established by the Council.
c) Is not subject to denial for specified reasons.
8)Provides that an individual who is not qualified to receive a
certificate under the Act, or who fails to apply for certification,
shall not hold himself or herself our as a certified traditional
Chinese Medicine traumatologist.
9)Requires a certified traditional Chinese Medicine traumatologist,
when engaging in traditional Chinese Medicine traumatology
manipulation techniques to relign the musculoskeletal and
ligamentous relationships, shall be supervised by a physician and
surgeon who has completed an orthopaedic residency program, and
provides that the relationship between a traditional Chinese
Medicine traumatologist and orthopedic surgeon regarding those
manipulation techniques shall be determined by the Council after the
qualifications necessary for certification are defined and adopted
by the Council.
10)Prohibits a certified traditional Chinese Medicine traumatolgist
from practicing medicine, as defined.
11)Prohibits a certified traditional Chinese Medicine traumatologist
from practicing the scope of activities regulated by the State Board
of Chiropractic Examiners.
12)Provides that a person may file an application for traditional
Chinese Medicine traumatology certification commencing January 1,
2013 and until December 15, 2015, but that on or after December 16,
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2015, the Council shall not issue certification to an applicant, and
that on or after December 16, 2013, the Council may only issue a
renewal for certification and every two years thereafter.
13)Provides that an individual who is not qualified to receive a
certificate or who fails to apply for a certification by December
13, 2013 , shall not represent himself or herself as a certified
traditional Chinese Medicine traumatologist.
14)Specifies that the initial application fee for the certificate
shall be $200 and the renewal fee shall be $100 and that moneys
received shall be utilized by the Council to pay for the costs
associated with administering this Act.
15)Provides that it is unfair business practice for any person
represent himself or herself as a certified traditional Chinese
Medicine traumatologist or use the title "certified traditional
Chinese Medicine traumatologist" without meeting the requirements of
the Act.
16)Specifies that the Act shall sunset on January 1, 2017.
FISCAL EFFECT: None. Legislative Counsel has keyed this measure as
"nonfiscal."
COMMENTS:
1.Purpose. The Author is the sponsor of this measure. According to
the Author, creation of this certification program will provide a
pathway for skilled traditional Chinese Medicine traumatologists to
receive recognition as one of the participants in the health care of
the public. Traditional Chinese Medicine traumatology, like
acupuncture, takes a holistic approach to the body with a complete
theoretical system that has provided cure to people for centuries.
A group of such practitioners exist in the State of California and
have been providing care to the public for more than 50 years to
date. The intent of this bill is to allow some oversight of this
practice to ensure public safety and to give people confidence and
assurances, that for those traumatologists who are certified, they
have met certain standards and requirements to call themselves a
"Certified traditional Chinese Medicine traumatologist."
2.Background. According to the National Institutes of Health's (NIH)
National Center for Complementary and Alternative Medicine (Center),
Traditional Chinese Medicine (TCM) originated in ancient China and
has evolved over thousands of years. TCM practitioners use herbs
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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 only by qualified
practitioners. 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.
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 as an
acupuncturist." As indicated, the practice of TCM traumatology as
including a range of treatments to address both acute and chronic
musculoskeletal conditions, as well as many nonmusculoskeletal
conditions, and techniques including, but 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. Methods and treatment also used in the
practice of TCM traumatology may also include the use of wide 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.
It should be noted that the term "traumatology" is also defined as the
study of wounds and injuries caused by accidents or violence to a
person, and the surgical therapy and repair of the damage, and is
considered as a branch of medicine. It is often considered a subset
of surgery and in countries with the specialty of trauma surgery it
is most often a sub-specialty to orthopedic surgery. Traumatology
may also be known as accident surgery.
3.Related Legislation. SB 969 (Vargas, 2012) Establishes under the
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Veterinary Medicine Practice Act a certification program for pet
groomers, as defined, and creates the "California Pet Grooming
Council" as a tax-exempt nonprofit organization with membership as
specified, for the purpose of certifying pet groomers and pet bather
and brushers who meet specified education, examination, training and
experience requirements. Specifies that it is an unfair business
practice for anyone to call themselves a "certified pet groomer" or
a "certified pet bather and brusher" unless they have been certified
by the Council. This measure is set to be heard in this Committee
on April 23, 2012.
SB 628 (Yee, 2011) changed the name of the California Acupuncture
Board to the "Traditional Chinese Medicine Board," retitled the
Acupuncture Licensure Act into the "Traditional Chinese Medicine
Licensure Act" and changed the designation of a licensed
acupuncturist into a licensed "Traditional Chinese Medicine
Practitioner." Provided for the certification of traumatologists
and included traumatology in the authorized activities of a licensed
acupuncturist. This measure passed out of this Committee by a vote
of 5 to 2 on May 5, 2011. It failed passage in Assembly Business,
Professions and Consumer Protection on July 5, 2011. It was granted
reconsideration but was not set for another hearing.
4.Arguments in Support. The American Association of Acupuncture and
Traditional Chinese Medicine (AAATCM) and the American Traditional
Chinese Medicine Traumatology Association (ATCMTA) are in support of
this bill and remark that this bill will provide a pathway for
skilled TCM Traumatologists to achieve certification. AAATCM and
ATCMTA both indicate that traumatology includes a range of
treatments to address both acute and chronic musculoskeletal
conditions, as well as many non-musculoskeletal conditions, and that
a group of such practitioners exist in California and have been
providing care to the public for more than 50 years to date. AAATCM
and ATCMTA both believe the intent of this bill is to allow
government oversight of this practice to ensure public safety, and
that this bill will regulate the title "Traumatologist" to those
that are certified, and that to use the title "Certified traditional
Chinese Medicine traumatologist" the individual must satisfy the
standards and level of experience set forth by the TCM Traumatology
Council, which will allow the public to distinguish between those
that are qualified from the ones that are not. "Therefore, it will
assist in protecting the health and safety of the consuming public by
demonstrating a level of expertise and skill."
The National Guild of Acupuncture and Oriental Medicine (NGAOM) writes
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in support and indicated that the language in the February 24, 2012
version of the measure has allayed any concerns they had with the
bill. NGAOM believe the proposed establishment of a Traditional
Chinese Medicine Traumatology Council is a good way to provide state
oversight to the profession and ensure public protection. "Limiting
the application period to one year and requiring that supervision by
an orthopedist for certain procedures, in our view, adds additional
safeguards. We believe this legislation will benefit Californians
and bring this profession closer to the medical mainstream."
Other groups and over 450 individuals , including traumatologists, have
written indicating their support for this measure and make similar
comments to those made by both AAATCM and ATCMTA.
5.Arguments in Opposition. The California Orthopaedic Association
(COA) has taken a position of "oppose unless amended," and although
they took a "neutral" position on the bill from last year, SB 628,
which placed responsibility for certification standards, training
and education under the Acupuncture Board, COA argues that the
Traditional Chinese Medicine Traumatology Council, a nonprofit
organization, could not provide the consumer protections that are
inherent when a profession is regulated by a state board. COA asks,
to whom would an aggrieved patient of a traumatologist lodge a
complaint if there is alleged incompetence or fraud? In addition,
COA argues that there would be no liability protection for Council
members making these decisions, as there would be no obligation of
the state to defend the members from a lawsuit.
The California Acupuncture Coalition (CAC) is opposed to this measure
for the following reasons:
This measure will create consumer confusion and endanger the
reputation of existing California licensed acupuncturists by
using the terms "Chinese medicine" and "traditional Chinese
medicine." Both of these terms are internationally recognized by
entities such as the World Health Organization (WHO) and the
National Institutes of Health (NIH) in conjunction with the
acupuncture and Asian medicine professions not with traumatology.
TCM traumatologists would be certified with absolutely no
required certification examination - written or practical. CAC
indicates that they are not aware of any other health field
licensed or certified by the State of California that is exempt
from an examination to objectively measure essential knowledge,
skills, and abilities required of entry-level practitioners and
that the absence of certification examination poses a significant
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threat to consumer safety. ( It should be noted that the
certification program for massage therapists, which this bill and
the certification for TCM traumatologists is modeled after, does
not require an examination for massage therapists seeking
certification .)
The bill appears to be focused upon satisfying the needs of a
special interest group that is unable or unwilling to obtain
licensing or certification through existing means.
The bill prescribes no scope of practice for TCM
traumatologists and abdicates legislative authority for
establishing scope of practice to an independent, nonprofit
certifying organization. ( It should be noted that for the
certification program for massage therapists there is no scope
of practice nor definition of the practice of massage therapy,
however, this measure does provide a definition of the practice
of "Traditional Chinese Medicine traumatology .")
There is no continuing education (CE) requirement of TCM
traumatologists as part of their certification renewal process
and CAC is unaware of any other health care field regulated by
the State of California that is exempt from CE requirements. ( It
should be noted that there is no CE requirement for certified
massage therapists, however, all other licensed health
professions are required to have CE .)
This measure is inconsistent in the type of practice allowed
by TCM traumatologists, since it says that a certified TCM
traumatologist "shall not practice medicine," but then allows a
certified TCM traumatologist to perform certain "manipulation
techniques" under the "supervision of a physician and surgeon who
has completed an orthopaedic residency program." CAC argues that
it is difficult, if not impossible, to reconcile these two
provisions. If traumatologists are not practicing medicine, this
level of supervision should not be necessary.
This measure is unnecessary since practitioners of tunia (TCM
massage techniques) are currently eligible for certification by
the California Massage Therapy Council.
1.Suggested Author's Amendments.
a) For purposes of clarifying the establishment of the
"Traditional Chinese Medicine Traumatology Council," make the
following changes:
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On page 2, delete lines 20 through 23, and after line 19 insert:
(c) "Council" means the Traditional Chinese Medicine Traumatology
Council.
On page 3, line 1, insert after "(a)" the following:
The California Traditional Chinese Medicine Council shall be
established as a nonprofit organization exempt from taxation
under Section 501(c)(3) of Title 36 of the United States Code,
for the purpose of developing standards for, and certifying the
practice of, traditional Chinese Medicine traumatology. The
council may commence activities as authorized by this section
after submitting a request to the Internal Revenue Service
seeking the exemption.
(b)
b) On page 4, line 26, there is a mistaken date; strike 2013
and change to 2015 .
c) This measure should include what conduct or violations of
this Act would constitute a reason for the Council to deny an
application for certification or to either suspend or revoke
the certification of the TCM traumatologist. On page 5, line
13, insert after Section 4979.11 the following language which
is similar to language and reasons used to deny or revoke the
certificate of a certified massage therapist:
It is a violation of this chapter for a certificate holder to
commit, and the council may deny an application for a
certificate or suspend or revoke a certificate, for any of the
following:
(a) Unprofessional conduct, including, but not limited to,
denial of licensure or certification, revocation, suspension,
restriction, or any other disciplinary action against a
certificate holder by another state or territory of the United
States, by any other government agency, or by another entity.
A certified copy of the decision, order, or judgment shall be
conclusive evidence of these actions.
(b) Procuring a certificate by fraud, misrepresentation, or
mistake.
(c) Violating or attempting to violate, directly or
indirectly, or assisting in or abetting the violation of, or
conspiring to violate, any provision or term of this chapter or
any rule or bylaw adopted by the council.
(d) Conviction of any felony, or conviction of a misdemeanor
that is substantially related to the qualifications or duties
of a certificate holder, in which event the record of the
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conviction shall be conclusive evidence of the crime.
(e) Impersonating an applicant or acting as a proxy for an
applicant in any part of the application process or any part of
the standards set by the council referred to under this chapter
for the issuance of a certificate.
(f) Impersonating a certified traditional Chinese Medicine
traumatologist, or permitting or allowing an uncertified person
to use a certificate.
(g) Committing any fraudulent, dishonest, or corrupt act that
is substantially related to the qualifications or duties of a
certificate holder.
(h) Committing any act punishable as a sexually related crime.
SUPPORT AND OPPOSITION:
Support:
American Association of Acupuncture and Traditional Chinese Medicine
American Chinese Cultural Exchange & Trading Association
American Traditional Chinese Medical Traumatology Association
California Acupuncture Medical Association
National Guild of Acupuncture and Oriental Medicine
Numerous Groups and Individuals, including Traumatologists (Over 450
Letters Received)
Opposition:
California Acupuncture Coalition (which includes):
Association of Korean Asian Medicine and Acupuncture
California Alliance of Acupuncture Medicine
California Certified Acupuncture Association
California State Oriental Medical Association
Japanese Acupuncture Association of California
United California Practitioners of Chinese Medicine
California Orthopaedic Association
Consultant:Bill Gage