Finding and Recommendation 1
Little Hover Commission 2004
Regulation of Acupuncture: A Complementary Therapy Framework
Finding 1:
While the legal scope of practice clearly defines the modalities that acupuncturists can use, the statute is silent on issues that are important in defining their role as health care providers.
To establish a sound regulatory scheme, policy-makers must clearly define the practice that the State intends to regulate. This legal "scope of practice" is the foundation on which health care regulation is built. The scope determines the minimal educational requirements that will be necessary for a practitioner to enter the field. The scope of practice defines the breadth of the licensure examination. And the scope of practice provides boundaries that are then enforced by regulators.
The statute clearly defines the treatments that acupuncturists may use. The Business and Professions Code is fundamentally a list of modalities and services provided to patients by traditional practitioners in China, Korea, Japan, and now around the world. The statute, however, is silent on many other facets - such as the authority to diagnose patients or limitations on the conditions practitioners may treat - that are detailed in the practice acts for other health care professions.
In 1979, the Legislature eliminated the statutory requirement that medical doctors refer patients to acupuncturists. And the following year, the Legislature in "intent language" referred to acupuncture as a "primary health care profession."
Subsequently, acupuncture - as defined in legal opinions by attorneys for the Acupuncture Board and as practiced in California communities - has incorporated the diagnosis of patients. And while traditional Oriental diagnosis exclusively relied on external physical cues, acupuncturists have been allowed by legal opinions to order blood tests, X-rays, MRIs and other advanced tests that have been developed to diagnose ailments as they are defined and understood in the Western medical paradigm.
As a result, there is some confusion between the statute and the legal opinions about the role of acupuncturists in the health care system, as well as how that role may be defined in the future.
Professional acupuncture associations say this modernization trend is an essential and natural development of the profession that mirrors the evolution of medical practice in China and other Asian nations.1 But California, as with other states, already has a means for regulating Western medical practice - supported by separate educational, professional and licensure institutions. And, in fact, many California practitioners have obtained dual licensure.
This murky legal framework - coupled with the trend toward blending Eastern and Western Medicine - complicates efforts to regulate acupuncture, has the potential to confuse the public about the capacity of acupuncturists, and could potentially compromise public health.
Recommendation 1:
The Governor and the Legislature should clarify in statute the role of acupuncturists in the health care system. Specifically the statute should:
- Keep licensure focused on traditional Oriental medicine. Consistent with existing "intent language" and legal opinions, the statute should clarify that licensure is for the practice of traditional Oriental medicine as an alternative and a complement to Western medicine. Practitioners interested in mastering both Eastern and Western methods should continue to seek licensure under both systems.
- Define primary care practitioner. The statute should make it clear that acupuncturists are primary care practitioners within the context of traditional Oriental medicine, and are responsible for referring patients to primary care practitioners in the Western medical system when appropriate. The law should make it clear that the definition does not impose requirements on health care providers regulated by the Knox-Keene Act.
- Authorize and define traditional Oriental diagnosis. The scope of practice should include an explicit authorization to conduct traditional Oriental diagnosis. Practitioners who are already licensed and choose to perform biomedical tests in making any diagnosis should be required to complete specific continuing education requirements and take a supplemental examination.
- Require disclosure of critical information. Patients should receive information on the benefits of coordinating care with MDs and accurate information on the efficacy of traditional therapies. They should receive safety precautions, for example, about single-use disposable needles, alcohol preparation of skin, herb-drug interactions and the potential for herbal contamination. Practitioners should be required to report malpractice settlements.
- Allow for acupuncture-only licensure. To ensure public access to acupuncture services - for instance, to promising addiction therapy - a separate category of licensure should be created for professionals who provide only acupuncture, and not the array of traditional Oriental therapies. A reduced educational curriculum and examination would have to be developed and implemented.