Board Needled Over Patient Safety
SACRAMENTO — In an unusual alliance, the Schwarzenegger administration and some Democratic legislators are moving to abolish the state board that regulates acupuncturists, saying the board has been more concerned with promoting the profession than with protecting patient safety.
In its six-year existence, the California Acupuncture Board has pressed to expand educational requirements for new practitioners to include physiology and physics as well as Eastern and Western diagnostic techniques.
The physicians’ lobby has taken umbrage because the board also has championed its disputed opinion that acupuncturists are primary healthcare professionals who can diagnose ailments and refer patients to specialists.
But an independent state commission concluded last year that in its zeal to advocate for the profession, the board “missed significant opportunities to protect the public, particularly in the areas of consumer information and herb-related safety.â€
Under current law, the board automatically expires a year from July. Key legislators are taking the uncommon approach of declining to renew it.
“This board just doesn’t know how to obey the law,†said state Sen. Liz Figueroa (D-Fremont), who, as chairwoman of the Senate panel that oversees regulation of the state’s professionals, is the chief proponent of eliminating the board. “The Legislature establishes the scope of practice, but this board keeps trying to expand it.â€
Many acupuncturists are aggressively fighting for the survival of the board, which oversees 9,200 active acupuncturists and 16 schools in California. If the board were eliminated, its functions would shift to the state Department of Consumer Affairs.
If that occurs, lawmakers and the board agree, nothing substantive would change immediately in how acupuncturists apply their trade. But many acupuncturists worry that without the 10-member board -- half of whom are acupuncturists -- the profession would lose whatever clout it has in Sacramento, where the boundaries of healers’ practices are always being adjusted.
“Acupuncturists are small in terms of our influence, in terms of power-brokering,†said Neal Miller, a Sherman Oaks acupuncturist who is president of the Acupuncture and Integrative Medicine Assn.
The board’s executive director, Marilyn Nielsen, said the effort to abolish the board is “a smoke screen to get to the profession, the status to diagnose and refer†patients.
“You have groups like [the California Medical Assn.] that over the years have been the only group for primary healthcare,†she said. “You’ve got some turf protection.â€
California’s uniquely independent regulatory boards are terminated infrequently. Like most others, the acupuncture board relies on licensing fees and is no drain on the state treasury.
Over the last decade, many boards that were historically seen as advocates for their professions rather than regulators -- including the boards that govern doctors and accountants -- have been tweaked to primarily stress consumer protection.
“This board has failed to act in a manner that prioritizes consumer protection,†said Charlene Zettel, director of the Department of Consumer Affairs. “There have been any number of admonitions.â€
The dispute is noteworthy because the Capitol has been debating all year the broader subject of independent boards that regulate California’s professionals.
Gov. Arnold Schwarzenegger made it a priority to subsume many of those boards, which do not report to the governor, into the consumer affairs department. But after a public outcry and the opposition of Democratic lawmakers, he was forced in February to withdraw his original proposal to terminate 88 boards, including the acupuncturists’.
The board’s defenders are using the same arguments to justify keeping it from becoming part of the administration.
“You will have bureaucrats overseeing professional issues of acupuncturists,†said Assemblywoman Judy Chu (D-Monterey Park). “They will not necessarily know very much about acupuncture.â€
None of the board’s many critics have cited incidents in which the board failed to protect the public from a specific wayward acupuncturist.
But a report released last fall by the Little Hoover Commission, an independent state panel that evaluates government for lawmakers, concluded that the board spends too much time “promoting the profession†and mulling “various means of restricting entry into the profession†rather than regulating it.
The commission faulted the board for not adopting the 1997 recommendation of the National Institutes of Health that acupuncturists use needles only once, instead of sterilizing them between patients.
The board maintained that it never ignored the issue but recognized that the Food and Drug Administration regulates needles and said that acupuncturists are well-educated on the topic. Nonetheless, the board this year banned acupuncturists from reusing needles.
The commission also said the board’s public educational materials fail to emphasize the medical limitations of acupuncture and instead go “beyond the accepted research findings†in listing ailments for which acupuncture is appropriate.
The commission said the board should take a lead role in pressing for accurate labeling of medicinal herbs and that its effort to create a new title, “doctor of Oriental medicine,†could confuse patients.
The board said it had not tried to regulate herbs because it believed that it had no authority to do so.
Since 1975, the board has increased the amount of education that an aspiring acupuncturist must fulfill from 1,350 hours to 3,000 hours, more than any other state requires.
The board has supported increasing that to 4,000 hours, but the Little Hoover Commission said it was unnecessary.
Even as the board faces extinction, the fight over acupuncturists’ authority to diagnose patients continues. Earlier this month, the Assembly approved legislation that said acupuncturists were allowed to diagnose patients within their area of expertise.
The board said that is what it has always advocated. But the medical association opposes the legislation, saying that the word “diagnose†should not be included, preferring the phrase “provide a therapeutic assessment.â€
Acupuncturists “believe their scope of practice is very broad, to diagnose everything from hepatitis to diabetes to hypertension,†said Bryce Docherty, the lobbyist for the doctors. “If we go down that road, the Legislature is going to be putting consumers in the state at huge risk.â€
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