The Move to Direct Access
Little Hover Commission 2004
Regulation of Acupuncture: A Complementary Therapy Framework
When acupuncturists were first licensed in California in 1975, they could only see patients who had been diagnosed and referred by physicians.
In 1979, lawmakers were concerned that physicians were not referring patients, and so eliminated the referral requirement, allowing patients to have direct access to acupuncturists. The following year, the Legislature created a committee separate from the Board of Medical Quality Assurance to license acupuncturists and it added to the list of modalities that could be used by acupuncturists, including the use of herbs. The Legislature also added the following "intent" language:
In its concern with the need to eliminate the fundamental causes of illness, not simply to remove symptoms, and with the need to treat the whole person, the Legislature intends to establish in this article, a framework for the practice of the art and science of oriental medicine through acupuncture.
The purpose of this article is to encourage the more effective utilization of the skills of acupuncturists by California citizens desiring a holistic approach to health and to remove the existing legal constraints, which are an unnecessary hindrance to the most effective provision of health care services. Also, as it affects the public health, safety and welfare, there is a necessity that individuals practicing acupuncture be subject to regulation and control as a primary health care profession.44
The profession and the Acupuncture Board rely heavily on this intent language to define the role of acupuncturists as responsible for a patient's overall health care and for coordinating specialty care within the modern scientific medical system.45 That view has significant repercussions on the other aspects of the State's regulatory scheme, especially educational requirements for new licensees.
The intent language was added by AB 3040 (Knox). A review of committee analyses and other legislative documents suggests that legislative deliberations focused on the bill's provisions to establish a separate examining committee and to expand the list of modalities. Scant attention in the analysis was given to the words "primary care" or the implications of the intent language in the bill. The Department of Consumer Affair's annual report for 1980 summarizes the changes made by the bill, but does not mention acupuncture becoming a "primary care profession."46
There are at least two concerns about relying on this language for fundamental policy decisions, one legal and the other practical.
The legal issue concerns the status of intent language. Legislative Counsel advises that "intent" language does not have the same weight as "substantive" language. Intent language is most often used by the courts to resolve disputes within the law itself. And given that the substantive portions of the practice act are clear, counsel concluded that the intent language does not broaden an acupuncturist's scope of practice.47 This legal opinion from the Legislative Counsel is included in Appendix G.
Secondly, the term "primary care" has many meanings. In more recent legislation - concerning naturopathic doctors, for example - the Legislature defined how the term was used in the context of that practice act. The term is predominantly used in a managed care model for physicians who are authorized to manage a patient's comprehensive health care, including referrals to specialists. A more limited use of the term is to describe practitioners that patients can directly access for a specialty or complementary treatment.
Former Governor Edmund G. Brown Jr. testified that the goal of the 1980 legislation was to ensure that consumers could choose to see practitioners of traditional Oriental therapies without a doctor's prescription.
However, attorneys for the Acupuncture Board have relied on the intent language to craft legal opinions enabling acupuncturists to diagnose patients using modern technologies and the board has used the intent language to support broader educational requirements including more Western medical training, particularly as it relates to diagnosis.48