CSOMA: Senate Bill 233 Preliminary Legal Analysis

May 17, 2005

another interesting piece of propaganda below. the crux of the

argument is an alleged " legal analysis by a Department of Consumer

Affairs attorney " . however this attorney and his original report are

not cited in any way, just " summarized " . There is a pattern of

anonymity, distortion and vagary in this campaign that disturbs me.

If the analysis below is correct, it appears a simple correction of

language would solve the problem as it is posed. Merely adding the

words, " except as previously authorized in section 4927 of the

Acupuncture Act " to section 4937(b) should satisfy all parties. If

there is no intent to deauthorize acupuncture diagnosis, the CMA will

not object to this language. And if the right to practice

acupuncture without referral and make diagnosis for that purpose is

the sole goal of CSOMA in this case, then they should be satisfied as

well. As should the senators who have been claiming all along that

this bill was meant to AUTHORIZE, not DEAUTHORIZE acupuncture diagnosis.

Sometimes I think we are acting like the little dog who doesn't know

he's a little dog. So the little dog lunges at the big dog every

time. finally the little dog gets off his chain and goes for it.

He's barking and biting at the heels of the big dog in the other

yard. The big dog knocks him away a few times, basically saying you

go back to your turf and I'll leave you alone. But the little dog

thinks he's got just as much right to the better turf next door and

in a perfect world he does. But this is not about what is right and

fair, but about what is. Finally, the big dog has had enough. The

next time the little dog bites his hind legs, he whips around, grabs

the little dog by the neck and snaps it. Game over. I wish it

weren't so, but it seems that this is just politics as usual.

Fundamental fairness seems to be a thing of the past, if it ever

existed at all. These days you need power in some form. And power

these days comes in the form of information in the form of

unassailable evidence. Except in Kansas, science is still supreme

and will always remain so on the west coast and the northeast of the

US, as well as europe and asia and india. So the sane parts of the

world are still heavily influenced by reason and evidence.

collecting data on how well our patients have fared compared to those

who have used only mainstream medicine over the past twenty years is

the most powerful ammunition we could ever have. It would easily

influence politicians and insurers and the mainstreamers would be

left scrambling to figure how do AS GOOD AS US. That is where most

our professional resources should be devoted right now, to collecting

and presenting this data once and for all.

On May 16, 2005, at 5:37 PM, CSOMA wrote:

> May 16, 2005

>

> SB 233: Preliminary Legal Analysis

>

> On May 3, 2005, Senator Liz Figueroa amended SB 233--the bill that

> would eliminate the Acupuncture Board--to include restrictions on

> the diagnostic authority of Licensed Acupuncturists.

>

> A preliminary legal analysis by a Department of Consumer Affairs

> attorney appears to confirm our worst case predictions. A summary

> of this analysis is included below:

>

> SB 233's expansion of the definition of " Acupuncture " to include

> " the diagnosis of a person for the purpose of providing acupuncture

> treatment " is inconsistent with the May 3 amendment language that

> states, " Nothing in this section shall be construed to authorize an

> acupuncturist to diagnose any physical or mental disorder pursuant

> to Sections 2038 and 2052. "

>

> All medically related practice acts are limited exceptions to

> Sections 2038 and 2052. Licensed physicians, including osteopathic

> doctors, may render any medical service defined by these two

> sections of law. All other practice acts (i.e., dental,

> chiropractic, podiatry, acupuncture, registered nursing, etc.)

> allow persons licensed under those acts to perform a limited

> medical scope of practice.

>

> By referencing these two sections, SB 233 puts into question

> whether or not an acupuncturist is authorized to diagnose.

>

> In short, SB 233 could eliminate all diagnostic authority for

> Licensed Acupuncturists in California. This would jeopardize the

> professions ability to communicate with patients, to bill insurance

> without a referring diagnosis, and to maintain status within the

> Work Comp system.

>

> The text of the amendment is included below. More information

> regarding SB 233, including practitioner and consumer action

> information, can be accessed at...

>

> http://www.aimsaction.org/advocacy/bills/sb_233.htm

>

> SB 233 Amended Language as of May 3, 2005

>

> Section 4927 of the Acupuncture Act would be amended to include:

>

> (d)... " Acupuncture " also includes the diagnosis of a person for the

> purpose of providing acupuncture treatment.

> (e) Nothing in this section shall be construed to authorize an

> acupuncturist to diagnose any physical or mental disorder pursuant

> to Sections 2038 and 2052.

>

> Section 4937(b) of the Acupuncture Act would be amended to include

> the following language:

>

> Nothing in this section shall be construed to authorize an

> acupuncturist to diagnose any physical or mental disorder pursuant

> to Sections 2038 and 2052.

>

> For your reference, Sections 2038 and 2052 of the Business and

> Professions Code are provided below:

>

> 2038. Whenever the words " diagnose " or " diagnosis " are used in this

> chapter, they include any undertaking by any method, device, or

> procedure whatsoever, and whether gratuitous or not, to ascertain

> or establish whether a person is suffering from any physical or

> mental disorder. Such terms shall also include the taking of a

> person's blood pressure and the use of mechanical devices or

> machines for the purpose of making a diagnosis and representing to

> such person any conclusion regarding his or her physical or mental

> condition. Machines or mechanical devices for measuring or

> ascertaining height or weight are excluded from this section.

>

> 2052. (a) Notwithstanding Section 146, any person who practices or

> attempts to practice, or who advertises or holds himself or herself

> 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 at the time of so doing a

> valid, unrevoked, or unsuspended certificate as provided in this

> chapter or without being authorized to perform the act pursuant to

> a certificate obtained in accordance with some other provision of

> law is guilty of a public offense, punishable by a fine not

> exceeding ten thousand dollars ($10,000), by imprisonment in the

> state prison, by imprisonment in a county jail not exceeding one

> year, or by both the fine and either imprisonment.

> (b) Any person who conspires with or aids or abets another

> to commit any act described in subdivision (a) is guilty of a

> public offense, subject to the punishment described in that

> subdivision.

> © The remedy provided in this section shall not preclude

> any other remedy provided by law.

>

> <general_bottom_600.gif>

>

> Sincerely,

>

> The CSOMA Board of Directors

>

> # # # # #

>

> Note: Should you no longer choose to receive CSOMA Updates and News

> Alerts, please notify us. Your name will be removed from our files,

> and we apologize for the inconvenience.

>

> CSOMA

> PO Box 160637

> Sacramento, CA 95816

> 916-498-9313

> 800-477-4564

> 916-443-4766 FAX

> ymarinsa | www.csomaonline.org

>

> # # #

>

May 17, 2005

In a message dated 5/17/05 10:56:58 AM, writes:

> And if the right to practice

> acupuncture without referral and make diagnosis for that purpose is

> the sole goal of CSOMA in this case, then they should be satisfied as

> well. As should the senators who have been claiming all along that

> this bill was meant to AUTHORIZE, not DEAUTHORIZE acupuncture diagnosis.

>

I think that we have to remember that in many states where we do not have the

scope to make a diagnosis other than an acupuncture one, it is required for

safety purposes to get a referral from an MD or DO.

By the way, do Chiro's or ND's need an intermediary like we will soon, in

California? A DC diagnosis or an Naturopathic diagnosis? Maybe we can work under

an ND or DC as well as a DO or MD. As a continuation of this thought process,

why is it we are always called MD wannabes when we ask about the necessity of

a modicum of Western training, when the basic ND Western medicine courses are

not necessarily that much longer if the herbal/nutritional/surgical stuff is

removed. Of course we would be talking requiring some prerequisites beyond

bachelor or associate of arts prior to entering school. I remember getting

reamed

a number of years back for even thinking that basic sciences were required

prior to entering OM school. What is actually required now a days? It was my

impression at that time that schools were considering survey courses (taught at

their school)of western sciences as clinical science, as long as there was a

bachelor of something. I suspect that this has not been tightened up yet, but

that a number of schools have done so voluntarily for ethical reasons.

David Molony

101 Bridge Street

Catasauqua, PA 18032

Phone (610)264-2755

Fax (610) 264-7292

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May 17, 2005

As a continuation

> of this thought process,

> why is it we are always called MD wannabes when we

> ask about the necessity of

> a modicum of Western training, when the basic ND

> Western medicine courses are

> not necessarily that much longer if the

> herbal/nutritional/surgical stuff is

> removed.

David,

Actually if you look at the accredited ND medical

schools(not the diploma mill Clayton college) the

level of western science training is significantly

more than we get in a TCM school. We are not even in

the same ball park. ND schools are equal in all

aspects of western science curriculum as an MD and DO,

minus the residency. The complete curriculum hours

for an ND school is approx. 4000 hours with the

majority of hours in western sciences. Our top Cali

schools(including my own) are pushing around 3200

hours, for the complete curriculum, and let me tell

you, the level of the science courses in a TCM school

is an absolute joke. It still leaves quite a bitter

taste in my mouth to know my TCM school charged a heck

of a lot of money for these classes including the

Western Clinical Survey classes you mentioned, when

the level of the classes were extremely poor. And I

would wager money that the majority of TCM schools

across the country are just as weak in the science

curriculum. In my opinion, TCM graduates(non MD, DO,

or ND)while trained to diagnose in TCM should not

attempt a western diagnosis. We are simply not

trained to do it. Until our schools can improve the

curriculum to the level of the science curriculum to

the MD,DO, ND levels then lets not fool ourselves, and

most especially our patients in believing we are

competent to provide a western diagnosis.

Just as others have said before, If you want to give a

western med diagnosis, go back to western med school,

or push for an improvement in our existing TCM

curriculum. Until then, when we try to act like MDs

we will rightfully be called MD wannabes...A wannabe-

a person who WANTS TO BE like someone else to increase

their stature, prestige, etc. but does not have the

skills...

It sucks, but its the truth.

Anton..

...Infinite gratitude to all things past..

....Infinite respect to all things present...

.....Infinite responsibility to all things future....

......Tao.....

May 20, 2005

Anton,

Good points but you neglected to mention that according to CA work comp law

we are responsible for a diagnosis. The acu statutes likewise allow for a

diagnosis. That can mean many things and for some in this group the word

diagnosis means all of WM. That is clearly not within our scope of practice

as it currently stands and so that arguement is not legit but we do have

diagnostic authority.

This bill's focus is on any diagnostic authority (ours or any other and

includes not only lab tests but also usage of stethoscope, etc) and has

inserted amended language that prohibits us from doing so in regards to

physical conditions etc. Additionally, this could be taken to mean that we

could not diagnose nor treat any ortho or pain related condition, period.

I find this not only ridiculous but also an attempt to prevent us from

participation in the healthcare system.

This leads to a situation of no reimbursement and a very limited scope of

practice. I would hope that you and others out there understand that many

within the profession have fought hard to get us to this level of

participation in the healthcare system and also regulation by a board of

peers.

These are important professional accomplishments which many other states

desparately hope for in the future. Our individual participation in work

comp and insurance is optional but serves the population and increases

reimbursement opportunities. We want and need this in order to economically

survive.

I doubt whether future students will see the profession as a viable career

if there are few practice options and high college tuitions.

While the science classes may seem lacking we are not talking about usage of

this information in order to medically diagnose cancer or diabetes or any

other western illness but retaining this limited ability encourages our

participation in a referral network and justifies this on behalf of the

patients. Some have sought to say we need less WM, which could lead to less

communication and the ability to appropriately refer. I hope you can see

why this is important for us, the patient and the healthcare system.

In the end, this is about options not limitations. We all can argue for

individual preferences and want to make our own choices and the only way to

accomplish this is by having options. I might not like work comp or

insurance but am willing to fight for others to have the right to practice

this way if they choose because it is important for the profession and the

patients. Sometimes you have to put away your own individual beliefs for

something bigger (the profession). End of sermon.

Mike W. Bowser, L Ac

>Anton Borja <its_antonborja

>

>Re: Re: CSOMA: Senate Bill 233 Preliminary Legal Analysis

>Tue, 17 May 2005 20:15:35 -0700 (PDT)

>

>As a continuation

> > of this thought process,

> > why is it we are always called MD wannabes when we

> > ask about the necessity of

> > a modicum of Western training, when the basic ND

> > Western medicine courses are

> > not necessarily that much longer if the

> > herbal/nutritional/surgical stuff is

> > removed.

>

>David,

>

>Actually if you look at the accredited ND medical

>schools(not the diploma mill Clayton college) the

>level of western science training is significantly

>more than we get in a TCM school. We are not even in

>the same ball park. ND schools are equal in all

>aspects of western science curriculum as an MD and DO,

>minus the residency. The complete curriculum hours

>for an ND school is approx. 4000 hours with the

>majority of hours in western sciences. Our top Cali

>schools(including my own) are pushing around 3200

>hours, for the complete curriculum, and let me tell

>you, the level of the science courses in a TCM school

>is an absolute joke. It still leaves quite a bitter

>taste in my mouth to know my TCM school charged a heck

>of a lot of money for these classes including the

>Western Clinical Survey classes you mentioned, when

>the level of the classes were extremely poor. And I

>would wager money that the majority of TCM schools

>across the country are just as weak in the science

>curriculum. In my opinion, TCM graduates(non MD, DO,

>or ND)while trained to diagnose in TCM should not

>attempt a western diagnosis. We are simply not

>trained to do it. Until our schools can improve the

>curriculum to the level of the science curriculum to

>the MD,DO, ND levels then lets not fool ourselves, and

>most especially our patients in believing we are

>competent to provide a western diagnosis.

>

>Just as others have said before, If you want to give a

>western med diagnosis, go back to western med school,

>or push for an improvement in our existing TCM

>curriculum. Until then, when we try to act like MDs

>we will rightfully be called MD wannabes...A wannabe-

>a person who WANTS TO BE like someone else to increase

>their stature, prestige, etc. but does not have the

>skills...

>

>It sucks, but its the truth.

>

>Anton..

>

>..Infinite gratitude to all things past..

>...Infinite respect to all things present...

>....Infinite responsibility to all things future....

>.....Tao.....

>

May 20, 2005

Anton, I'm going to keep out of the legistlative aspects of diagnosis but on a

practical level

most of my diagnosises are basically complaints of the patient. All of the time,

I'm going

to check " headache " , " wrist pain " or " infertility " . Any internal diagnosis of

say... lupus or

cancer, are outside of our scope to practice anyway. I may treat " pain...

throat " for cancer

or the like. Of course, we are ill-prepared to diagnosis at the level you

suggest here. If

there is an internal complaint or a complex musculo-skeletal case we leave that

diagnosis to those qualified. As to the majority of treating the symptoms we are

better

qualified than most of the Western doctors out there.

doug

, Anton Borja <its_antonborja>

wrote:

> As a continuation

> > of this thought process,

> > why is it we are always called MD wannabes when we

> > ask about the necessity of

> > a modicum of Western training, when the basic ND

> > Western medicine courses are

> > not necessarily that much longer if the

> > herbal/nutritional/surgical stuff is

> > removed.

>

> David,

>

> Actually if you look at the accredited ND medical

> schools(not the diploma mill Clayton college) the

> level of western science training is significantly

> more than we get in a TCM school. We are not even in

> the same ball park. ND schools are equal in all

> aspects of western science curriculum as an MD and DO,

> minus the residency. The complete curriculum hours

> for an ND school is approx. 4000 hours with the

> majority of hours in western sciences. Our top Cali

> schools(including my own) are pushing around 3200

> hours, for the complete curriculum, and let me tell

> you, the level of the science courses in a TCM school

> is an absolute joke. It still leaves quite a bitter

> taste in my mouth to know my TCM school charged a heck

> of a lot of money for these classes including the

> Western Clinical Survey classes you mentioned, when

> the level of the classes were extremely poor. And I

> would wager money that the majority of TCM schools

> across the country are just as weak in the science

> curriculum. In my opinion, TCM graduates(non MD, DO,

> or ND)while trained to diagnose in TCM should not

> attempt a western diagnosis. We are simply not

> trained to do it. Until our schools can improve the

> curriculum to the level of the science curriculum to

> the MD,DO, ND levels then lets not fool ourselves, and

> most especially our patients in believing we are

> competent to provide a western diagnosis.

>

> Just as others have said before, If you want to give a

> western med diagnosis, go back to western med school,

> or push for an improvement in our existing TCM

> curriculum. Until then, when we try to act like MDs

> we will rightfully be called MD wannabes...A wannabe-

> a person who WANTS TO BE like someone else to increase

> their stature, prestige, etc. but does not have the

> skills...

>

> It sucks, but its the truth.

>

> Anton..

..Infinite gratitude to all things past..

> ...Infinite respect to all things present...

> ....Infinite responsibility to all things future....

> .....Tao.....

>

May 21, 2005

Mike, Doug and others..

I am in no way pushing for a decrease in scope of

practice. In fact i personally feel the diagnostic

authority in CA work comp law is analagous to a child

who can ride a tricycle getting a big, beautiful

mountain bike(with no training wheels) for his

birthday. It is a beautiful gift and there is no way

im gonna give the gift back even though I cant ride it

yet. So I push it around a little at a time, I

diagnose using the simplest of diagnosis

....pain...headache..etc. Its a start, until I feel a

little bit more comfortable, and then maybe one day I

can get one of my feet of the ground and really ride.

So yes, our bit of diagnostic authority is important

to begin to build the bridges necessary and to fit our

profession into what I believe will be the future

Integrative medical model. But yes, I do want to see

our profession expand its role further in the US

healthcare system and not become limited to pain

management. I want to see us become a strong voice in

all aspects of medicine that OM treats including

internal med, gynecology, oncology, etc.etc...It could

happen, but as I mentioned before, not with the

current curriculum in place. It seems many others in

our profession have a similar vision in the integrated

direction of our profession which is evident by the

number of LAcs willing to spend more money to take

Fred Lerners yearlong Ortho class, or this new

Internal med yearlong program taught by an MD which

just had a session two weekends ago at Yosan. If the

schools would only learn.

Let me pose this question: What do people think

about a doctorate level medical program in which the

science curriculum(and of course prereqs) are the same

as MD,DO,ND school but instead of learning western med

modalities the students learn OM, Acup, Internal med.,

drug/herb interaction, etc.?? The students coming out

of these programs will be prepared to do the research

for our medicine, and be a truly integrative

practitioner. Maybe even establish residencies in

which graduates can specialize in different

specialties, even Chinese medical classics for those

who want to delve a bit deeper into the classic

med.Yes, it will cost money, but the current model

already cost alot of money(and not all of my money

spent was worth it), and yes it will be more

time--approx 4000 hours, but other professions have to

go through the same, so whats the big deal. It might

not be an option for us who haver already graduated

but for the next generation. Could it ever be a

possibility???

Anton

...Infinite gratitude to all things past..

....Infinite respect to all things present...

.....Infinite responsibility to all things future....

......Tao.....

Mail

Stay connected, organized, and protected. Take the tour:

http://tour.mail./mailtour.html

May 24, 2005

pain...headache..etc. Its a start, until I feel a

little bit more comfortable, and then maybe one day I

can get one of my feet of the ground and really ride.

>>>>

That is what the whole argument is about. Are we a profession that is just going

to stay still or are we a growing and developing profession, as all other

professions are. The argument should not be about past education and

qualifications but the future.

Oakland, CA 94609

May 24, 2005

Anton,

There are many ways to skin a cat and so there should be some individuality

of doctoral programs as well. I do not see the issue with the curriculum

but how it is admistered. Topics could be easily increased to give the

needed coverage but they are not. Yet it surprises me that on this group we

frequently see WM illness names used. Some of us seem to know what these

are and that is good.

In the end, the real issue might be how much more we can cover in an

educational program so that we are in a better position to defend our

profession. We have not benefitted from the way many graduate programs are

taught. These include large amounts of self-study.

I would like to hear more about this internal medicine seminar given at

Yosan. Do you have more info and a possible website? Thanks

Mike W. Bowser, L Ac

>Anton Borja <its_antonborja

>

>Re: Re: CSOMA: Senate Bill 233 Preliminary Legal Analysis

>Sat, 21 May 2005 19:12:35 -0700 (PDT)

>

>Mike, Doug and others..

>

>I am in no way pushing for a decrease in scope of

>practice. In fact i personally feel the diagnostic

>authority in CA work comp law is analagous to a child

>who can ride a tricycle getting a big, beautiful

>mountain bike(with no training wheels) for his

>birthday. It is a beautiful gift and there is no way

>im gonna give the gift back even though I cant ride it

>yet. So I push it around a little at a time, I

>diagnose using the simplest of diagnosis

>...pain...headache..etc. Its a start, until I feel a

>little bit more comfortable, and then maybe one day I

>can get one of my feet of the ground and really ride.

>

>So yes, our bit of diagnostic authority is important

>to begin to build the bridges necessary and to fit our

>profession into what I believe will be the future

>Integrative medical model. But yes, I do want to see

>our profession expand its role further in the US

>healthcare system and not become limited to pain

>management. I want to see us become a strong voice in

>all aspects of medicine that OM treats including

>internal med, gynecology, oncology, etc.etc...It could

>happen, but as I mentioned before, not with the

>current curriculum in place. It seems many others in

>our profession have a similar vision in the integrated

>direction of our profession which is evident by the

>number of LAcs willing to spend more money to take

>Fred Lerners yearlong Ortho class, or this new

>Internal med yearlong program taught by an MD which

>just had a session two weekends ago at Yosan. If the

>schools would only learn.

>

> Let me pose this question: What do people think

>about a doctorate level medical program in which the

>science curriculum(and of course prereqs) are the same

>as MD,DO,ND school but instead of learning western med

>modalities the students learn OM, Acup, Internal med.,

>drug/herb interaction, etc.?? The students coming out

>of these programs will be prepared to do the research

>for our medicine, and be a truly integrative

>practitioner. Maybe even establish residencies in

>which graduates can specialize in different

>specialties, even Chinese medical classics for those

>who want to delve a bit deeper into the classic

>med.Yes, it will cost money, but the current model

>already cost alot of money(and not all of my money

>spent was worth it), and yes it will be more

>time--approx 4000 hours, but other professions have to

>go through the same, so whats the big deal. It might

>not be an option for us who haver already graduated

>but for the next generation. Could it ever be a

>possibility???

>

>Anton

>

>..Infinite gratitude to all things past..

>...Infinite respect to all things present...

>....Infinite responsibility to all things future....

>.....Tao.....

>

> Mail

>Stay connected, organized, and protected. Take the tour:

>http://tour.mail./mailtour.html

>

May 24, 2005

Definitely agree with you on this one.

Mike W. Bowser, L Ac

> " " <alonmarcus

>

>Re: Re: CSOMA: Senate Bill 233 Preliminary Legal Analysis

>Tue, 24 May 2005 10:49:40 -0700

>

>pain...headache..etc. Its a start, until I feel a

>little bit more comfortable, and then maybe one day I

>can get one of my feet of the ground and really ride.

> >>>>

>That is what the whole argument is about. Are we a profession that is just

>going to stay still or are we a growing and developing profession, as all

>other professions are. The argument should not be about past education and

>qualifications but the future.

>

>Oakland, CA 94609

>

May 24, 2005

I couldnt agree with you more. The future of the

profession depnds on the choices we, the practitioners

today, make... may the Tao have mercy on our souls....

--- <alonmarcus wrote:

> pain...headache..etc. Its a start, until I feel a

> little bit more comfortable, and then maybe one day

> I

> can get one of my feet of the ground and really

> ride.

> >>>>

> That is what the whole argument is about. Are we a

> profession that is just going to stay still or are

> we a growing and developing profession, as all other

> professions are. The argument should not be about

> past education and qualifications but the future.

>

> Oakland, CA 94609

>

> [Non-text portions of this message have been

> removed]

>

...Infinite gratitude to all things past..

....Infinite respect to all things present...

.....Infinite responsibility to all things future....

......Tao.....

May 25, 2005

In a message dated 5/24/05 1:23:22 PM, its_antonborja writes:

> In fact i personally feel the diagnostic

> authority in CA work comp law is analagous to a child

> who can ride a tricycle getting a big, beautiful

> mountain bike(with no training wheels) for his

> birthday. It is a beautiful gift and there is no way

> im gonna give the gift back even though I cant ride it

> yet.

>

It was my impression that special courses needed to be taken to participate.

NBAO certification or equivalent. Was I wrong, or was it just ethical to do

so?

DAVE Molony