Legislative Update: New Laws in California

January 2, 2006

from http://www.acupuncturetoday.com/archives2006/jan/01legupdate.html

In something of a surprise, Gov. Arnold Schwarzenegger vetoed

Assembly Bill 1113, which would have clarified the ability of a

licensed acupuncturist to diagnose patients. Specifically, the bill

would have authorized licensed acupuncturists " to diagnose within his

or her scope of practice. "

Despite widespread support from both the California Assembly (which

passed the bill 33-0 on Aug. 25) and the Senate (which passed the

bill 74-1 5 days later), Gov. Schwarzenegger dealt a blow to the

profession by summarily vetoing the bill in October. In his veto

message, Schwarzenegger criticized the bill, saying, " The term 'scope

of practice' is vague " - without mentioning the various techniques,

therapies and modalities acupuncturists are currently authorized to

perform under existing law.

Also vetoed by Schwarzenegger was Assembly Bill 1115, which created a

position known as the " acupuncture assistant. " AB 1115 defined an

acupuncture assistant as " a person who is not licensed to perform

acupuncture, who performs basic administrative, clerical, and

supportive services " for licensed acupuncturists or corporations.

Schwarzenegger called the bill " unnecessary, " citing existing law

that expressly prohibits all people (aside from licensed

acupuncturists or other specified health care providers) from

practicing acupuncture.

My commentary:

Some very interesting moves by the guvinator of the state I am so

glad to no longer be a citizen of. His reasoning for both vetoes is

quite specious and seemingly easily overturned in the first case

given the huge margins of the votes in favor. But in any case, this

first veto puts a further crimp in the viability of the acupuncture

profession by continuing to keep it illegal for an acupuncturist to

make a western diagnosis. That is the key, if you all recall. In

order to code an insurance form legally, you need to be able to make

a western diagnosis. While the guv's reasoning reflected his usual

lack of grasp of the facts, it also prevented the acupuncture lobby

from making an end run around the current law by using such vague

wording. Its vaguery was not that it did not clarify scope of

practice since that is already defined in the acupuncture licensing

act itself. The vaguery was in the use of the term diagnosis with no

qualifier, thus essentially providing a legal basis for L.Ac. to

claim the right to make a western diagnosis in the course of

practicing Acupuncture, something that was advised against by both

the Little Hoover commission and the joint legislative committee.

Outlawing the use of acupuncture assistants is the essence of the

second veto, meaning L.Ac. will have to do a lot of the work

themselves they once farmed out to minimum wage helpers. Now perhaps

the vetoes will be overturned, but probably not very soon. Its an

election year and the full force of the medical lobbies will be in

play. In that arena, the guv remained astute, if bought and sold.

As I have stated many times, I believe this battle to gain western

diagnostic rights will be lost in the end. The legislators who voted

for it can now have it both ways. They can claim they tried, thus

satisfying their asian lobby and they can ignore it for a long time

to come, thus mollifying the CMA.

The guv signed another bill which outlawed the practice of chinese

herbal medicine and TCM in any form by ND's. Ironically, these

practice (except for acupuncture) will still be legal for lay

herbalists under the Healthcare freedom Act as detailed in many posts

over the past year. It is also the harbinger of something very

onerous for the profession. Against my admonitions, the brainless

lobyyists who pushed this latter law, have now effectively created a

major turf war between NDs and L.Ac. NDs are allowed by training and

scope to make western dx in CA already. And when the bill to

reintroduce diagnostic language into the acupuncture law is

presented, the CANP is going to join forces with the CMA and make the

case that L.Ac. do not even remotely have close to the level of

training necessary to order and interpret lab tests, x-rays, etc.,

nor to make any clinical judgments that are based upon such tests.

ND's are trained in spinal manipulation and will fight now to

guarantee that they reap some benefits from the pain management

industyr while L.Ac.'s languish on the sidelines.

In all these cases, AIMS and CSOMA really overplayed their hands and

the repercussions will be felt for years. Requesting the right to

make a diagnosis and use assistants is a tacit admission that those

things were illegal to begin with. With the veto of the laws,

practitioners can expect the hammer to come down now. Especially

with the newly reconstituted acupuncture board, which is no longer

stacked with insiders. Those of you current students who have not

yet invested too much on your education might want to consider

jumping ship now before you end up with endless debt and very little

means to pay it back (unless you feel comfortable committing

insurance fraud).

Chinese Herbs

January 2, 2006

In all these cases, AIMS and CSOMA really overplayed their hands and

the repercussions will be felt for years.

>>>> i am curious what you mean by this. I know very little about the politics

of the state. I have to agree with you on you assessments but would have to add

that by the lack of support of these from the schools they probably sabotaged

their own future.

Oakland, CA 94609

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cha

Monday, January 02, 2006 1:40 PM