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And Which Diagnosis?

Little Hover Commission 2004

Regulation of Acupuncture: A Complementary Therapy Framework

In order to affirm whether acupuncturists can diagnose patients, policy-makers are confronted with the next issue : Are acupuncturists limited to traditional Oriental medicine, or an evolving blend of traditional Oriental medicine and modern biomedicine? While some in the profession want to stay focused on traditional practices (those included in the statute), other advocates are pushing for both a modern interpretation of how acupuncture affects the body, as well as access to modern technologies that were developed as part of the biomedical model.

The intent language in statute refers to an "art and science" that is a more holistic approach to health, but the language does not comprehensively define Oriental medicine. And as a result, policy-makers have had trouble assessing incremental proposals to change the practice act. For example, when the profession and the Acupuncture Board asked that acupuncturists be given the title of "Doctor of Oriental Medicine," the Joint Legislative Sunset Review Committee pointed out that Oriental medicine is not defined in the law. (In addition, as referenced above, legal opinion 93-11 states that acupuncturists are not authorized to perform the full range of Oriental medicine.)

The board requires that students in acupuncture schools be trained in traditional Oriental medicine, including "the theory and practice of traditional diagnostic and therapeutic procedures." It also requires that within their clinical training, students be trained in "diagnosis and evaluation - the application of Eastern and Western diagnosis procedures in evaluating patients."54

In regulations proposed to implement the new 3,000 hours of minimum training, the board more specifically described the education and training in Oriental diagnosis that students must receive. But the proposed regulations also would add significant education in Western or biomedical subjects - and diagnostic techniques, in particular.

One justification for including Western concepts is to prepare practitioners - as primary care providers - to interact with specialists in Western medicine. But it is unclear where to draw the line and at least some professional organizations suggest there should be no line at all. For example, the Standards of Care, prepared by the Council of Acupuncture and Oriental Medicine Associations, which was adopted as a reference document by the board, states: "Oriental Medicine, by its nature and definition involves an individualized approach to patient management. It does include the assessment of syndromes within the theoretical constructs of Traditional Chinese Medicine as well as the diagnosis of biomedical syndromes common to modern biomedical systems."55

In addition, some of those advocating for greater Western training also are seeking the title of "doctor" and access to insurance reimbursements - making it difficult to sort out economic aspirations from medical issues.

This tension is subtle, but is perhaps the most significant issue facing the profession, policy-makers and the public. A former member of the Acupuncture Board, and chair of the board's Task Force on Competencies and Outcomes, said in recent debates that the department's legal counsel has concluded that "the primary care status refers only to the ability of an acupuncturist to treat a patient without having them first see a Western practitioner. They are not given, within their scope, the responsibility to diagnose and treat disease from a Western medical framework. This remains a contentious issue."56

The initial goal of policy-makers was to allow Californians, particularly immigrants, direct access to traditional healers, either because that is what they are accustomed to, or because they are dissatisfied with the results of modern Western medicine. Former Governor Brown testified that the essential policy decision was to provide the personal freedom to choose a healer.

But that liberty gives rise to a second concern: that in choosing one form of medicine over another, patients may not be fully aware of the potential or limitations of each. This lack of understanding could have significant consequences in the form of a missed diagnosis, ineffective treatment, or potential side effects. This is especially important given that the scope of practice does not define or limit the ailments that acupuncturists can treat. Traditional Oriental healers used these modalities to treat nearly all ailments, and the board's written material implies that treatment is efficacious for ailments when scientific studies have proven otherwise.

The original safeguard to the public was the requirement for a physician referral. Given the fundamental differences between the two healing practices, it is understandable why policy-makers believed that physicians as gatekeepers would be an "unnecessary hindrance" for those seeking traditional Oriental medicine. But under the new scheme of "direct access," policy-makers did not ensure that the public received the formal notification that would allow them to make informed choices and protect themselves.

Other countries such as Germany require written risk information to be provided to patients along with signed consent releases.57 This is a common way to balance consumer freedom and protection. In addition, the following spectrum of integration displays some models for providing patients with the full range of care from practitioners competently practicing within their scopes.58

Spectrum of Integration
Shoulder to ShoulderInteractiveConsultativePrescriptive
Joint clinical team practice with Western-trained practitionersShared clinical verbal and written reports/consultations between MDs and LAcs MDs continue case managementRequires MD physical in first month of treatment (or 8 visits) for clearanceRequires MD visit prior to any treatment
Frequent in AsiaWeil - U. Arizona Integrative MedicineIsraeli Task ForceKaptchuk - Harvard Medical Model

This spectrum also reveals alternatives to expanding the acupuncture scope of practice relative to Western diagnosis, testing and procedures.

As it relates to acupuncture, concerns about consumer understanding are escalated if acupuncturists are authorized to order modern laboratory tests. The concern is not the tests themselves, but the ability of acupuncturists to use the information to make a diagnosis - Eastern or Western - as well as the patient's perception that the diagnosis would be the same as if an MD had reviewed the same test results.

Traditional Oriental medicine exclusively relied on external physical cues such as the brightness of eyes, skin and tongue coloration, and ultra-refined pulse-taking to determine diagnoses such as blocked chi.

The statutory scope of practice does not explicitly authorize the use of modern tests. However, attorneys for the Department of Consumer Affairs have opined that some modern tests are permitted, including blood tests and X-rays, while other tests are not. (The analysis by the Center for Health Professions details the legal arguments.)

Professional associations rationalize this trend as an essential and natural development of the practice that mirrors the evolution of medical practice in China and other Asian nations. However, California, as with other states, already has a means for regulating Western medical practice - supported by separate educational, professional and licensure institutions. This blending of Eastern and Western medicine complicates regulatory efforts and has the potential to confuse the public about the preparation and training associated with state-licensed acupuncturists.

From a practice standpoint, acupuncture and Oriental medicine might be best realized as an alternative or complement Western medicine if the two systems coordinate care to patients. There are several models - some of them regulatory, others based on profession-developed best practices - to formalize this cooperation. But under those models, licensure regulation is still predicated on a clear scope of practice that is faithful - and limited to - the basis of the healing tradition or science.



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