The Debate Over Diagnosis
Little Hover Commission 2004
Regulation of Acupuncture: A Complementary Therapy Framework
The ambiguity in the law emerges as a controversy in regard to the authority of acupuncturists to diagnose patients. Unlike the practice act for other health care professions, the acupuncture statute does not explicitly authorize the diagnosis of patients.
However, in a series of legal opinions and memoranda, the Department of Consumer Affairs has concluded that in removing the physician referral requirement the Legislature implicitly gave acupuncturists the authority to diagnose patients before treating them.49
In early opinions, the department's attorneys concluded that acupuncturists could diagnose patients, but were limited to a traditional Oriental diagnosis. And in fact, the distinction between Eastern and Western diagnosis buttressed the case of implicit diagnostic authority. For example, a 1986 letter from the department concluded: "We are informed that a diagnosis in Oriental medicine is undertaken in a manner different from Western medicine. It would be illogical to conclude that an acupuncturist may treat a patient and then hold that an acupuncturist may not make a diagnosis before he or she undertakes such treatment."50
In the most recent and comprehensive legal opinion issued in 1993, the department did not distinguish between Eastern and Western diagnosis. However the author of that opinion in public discussions has qualified the authority to diagnose "within the scope of practice." And the written opinion also states that practitioners are limited to only those modalities in the statute - "rather than the full range of procedures and treatments traditionally associated with Oriental medicine."51
Regulators periodically assess what practitioners are actually doing as a way of assessing the alignment between the regulatory scheme - including scope of practice - and reality in the marketplace. The Department of Consumer Affairs conducted an occupational analysis for acupuncture in 2001 that documented close alignment between the legal practice and the actual practice. The potential exception is diagnosis, which acupuncturists consider critical to their practice but which is not explicitly authorized in statute.52 According to the board, the occupational analysis also revealed that "Western science diagnosis" was one of the "content practice areas" that had increased since the previous analysis.53
Still, confusion, or at least uncertainty, persists. During the Sunset Review Process, the Acupuncture Board and a number of professional associations requested that diagnostic authority be explicitly added to the statute. But, according to the board, the Joint Legislative Sunset Review Committee believed that adding diagnosis authority to the statute would constitute an expansion in the scope of practice.