Jun 07 2010
When Daniel David Palmer, the inventor of chiropractic, and his acolytes first took up the practice of chiropractic, around the turn of the last century, they were jailed for the unlicensed practice of medicine. If history had left them there, we might not be fighting a continuing battle with the pseudoscience that is “alternative” medicine today.
Unfortunately, the Kansas legislature intervened on the chiropractors’ behalf and passed the first chiropractic practice act in 1913. Over the years, state by state, the notions that subluxations interfere with nerve flow, causing ill health, and that only chiropractors could “correct” these subluxations, thereby restoring health, were incorporated into state law. As well, chiropractors were given a broad scope of practice and allowed to call themselves “doctor.” In 1974, Louisiana’s passage of a chiropractic practice act made chiropractic legal in all 50 states.
Acupuncturists and naturopaths copied this successful formula by convincing state legislatures to incorporate their pseudoscientific ideas directly into practice acts, thereby managing to become licensed health care providers. Legislative fiat triumphed over scientific facts time after time.
Laws allowing the practice of “alternative” medicine did not totally eliminate resistance to pseudoscientific practices from some quarters. Insurance companies, for example, refused to pay for treatments they considered experimental. Medicare did not cover chiropractic. Labs and x-ray facilities wouldn’t allow use of their services. But for each roadblock science tried to put in the way, state and federal legislators were there to remove it, paving the way toward “acceptance.”
Finally, even medical doctors were unable to resist the enticing smell of money wafting over from “alternative” clinics. Again legislators smoothed the transition from medicine to “alternative” medicine by effectively doing away with a science-based standard of care.
Still, this was not enough in the eyes of some. It deprived those seeking “health freedom” the “right” to choose whatever health care they wanted from whatever practitioner they wanted. So the legislatures of three states — Minnesota (2000),Rhode Island (2002) and New Mexico (2009 ) — came up with an equitable solution by essentially setting up a separate health care profession: the unlicensed practice of health care. In fact, the laws of both Rhode Island and New Mexico are titled the “Unlicensed Health Care Practice Act.” At least they’re up front about it.
(Arizona, California, Idaho, Louisiana and Oklahoma also provide some legal cover for unlicensed practitioners, mainly by protecting them from prosecution for the practice of medicine.)
Ironically, these laws are promoted as public safety measures, so that the state can exercise some control over health care practices not officially licensed. Perhaps some legislators really believe this is effective — as opposed to, say, requiring that all practices have a plausible basis in science and maybe even some evidence of effectiveness.
The acts passed by Rhode Island and Minnesota are almost identical. New Mexico’s is more liberal, but contains many of the same provisions. This suggests these laws are based on templates fed to drafters by promoters of “health freedom” and are passed with few changes.
The statutes contain various provisions common to licensed health care practice acts: a supervisory authority, a bill of rights for the consumer, reporting requirements, confidentiality requirements, prohibitions on sex with patients (who are called “clients” in Minnesota and Rhode Island), and penalties for violations.
On the other hand, no malpractice insurance is required nor is there a specific provision for informed consent of the patient/client. As is common with other licensed “alternative” practitioners, unlicensed practitioners can’t perform surgery, prescribe drugs, invade the human body, use medical devices, or practice dentistry. They also cannot manipulate or adjust the articulations of joints or the spine, obviously in deference to the chiropractic lobby.
Then things get really weird.
First, other than as stated above, there is virtually no limitation on what these unlicensed practitioners can do, as long as it falls into “the broad domain of complementary and alternative healing methods and treatments.” Given the facts that (1) these “healing methods” are made up, and (2) some are of fairly recent origin (e.g., cranial sacral therapy), it appears reasonable to conclude that one can simply create a “healing method,” call it “alternative,” and set up shop. The unemployed should take note.
Specifically mentioned in the statutes as permissible treatments are acupressure, Alexander technique, aroma therapy, ayurveda, craniosacral therapy, crystal therapy, detoxification practices and therapies, energetic healing (as opposed to the lethargic kind, I guess), Rolfing, Gerson therapy, colostrum therapy, therapeutic touch, herbology, herbalism, polarity therapy, homeopathy, nondiagnostic iridology, Qi Gong, culturally traditional healing practices, anthroposophy, folk practices, healing practices utilizing food, dietary supplements, nutrients, and the physical forces of heat, cold, water, touch, and light, healing touch, homeopathy, body work, massage, meditation, mind-body healing practices, naturopathy, noninvasive instrumentalities, holistic kinesiology and other muscle testing techniques. However, it’s made clear in the statutes that this list is not meant as a limitation on the therapies which can be legally offered to the public.
Minnesota and Rhode Island add an extra layer of practitioner protection: having already ok’d unlicensed alternative medicine “healing methods,” these states assure practitioners on the cutting edge of pseudo-medicine that use of a “less customary approach” will not per se subject them to discipline. So now we have conventional alternative medicine and alternative alternative medicine? If the “less customary approach” is used with conventional alternative medicine, should we call it complementary alternative alternative medicine? So much to figure out!
Unlicensed practitioners cannot provide a “medical diagnosis,” or, as New Mexico puts it, the practitioner cannot “make a specific conventional medical diagnosis,” which is “a medical term that is commonly used and understood in conventional western medicine.” In another dig at “conventional western medicine,” plain old prescription drugs become “dangerous drugs” under New Mexico law. A “dangerous drug” is defined as “a drug that is required by applicable federal or state law or rule to be dispensed pursuant to a prescription.” Thus unlicensed practitioners are prohibited from prescribing or dispensing “dangerous drugs.”
To make sure unlicensed practitioners don’t pull one over on the public, Minnesota and Rhode Island (but not New Mexico) list as “prohibited conduct:”
- “Advertising that is false, fraudulent, deceptive or misleading;” and
- “Conduct likely to deceive, defraud, or harm the public.”
Good luck with that!
As further public protection, these states require their own version of a written quack Miranda warning. For example:
THE STATE OF MINNESOTA HAS NOT ADOPTED ANY EDUCATIONAL AND TRAINING STANDARDS FOR UNLICENSED COMPLEMENTARY AND ALTERNATIVE HEALTH CARE PRACTITIONERS BUT WE ARE GOING TO LET THEM PRACTICE MEDICINE ANYWAY.
Actually, I made up that last part, after “PRACTITIONERS.” The rest is right out of the statutes.
As part of disclosure requirements, this must be followed by,
THIS STATEMENT OF CREDENTIALS IS FOR INFORMATION PURPOSES ONLY.
These “credentials” are “the degrees, training, experience, or other qualifications of the practitioner regarding the complementary and alternative health care being provided.” Considering this, the reader might look into investing in the diploma mill industry.
And note that credentials aren’t required — it’s just that if you have some you must let the client know what they are.
Perhaps to prevent their states from becoming havens for parents who want unrestricted access to “alternative” practices for their children, both Minnesota and Rhode Island (but, again, not New Mexico) make clear that “a parent who obtains complementary and alternative health care for the parent’s minor child is not relieved the duty to seek necessary medical care [for the child].” In fact, unlicensed practitioners are required to report to the authorities that a child is not receiving necessary medical care, although if the practitioner’s world view dictates that medical care is unnecessary, what happens then?
Minnesota prevents the unlicensed practitioner from using the title “doctor,” “Dr.” or “physician.” Rhode Island prevents “false or misleading” use of these terms. New Mexico simply prevents the practitioner from describing himself as a “licensed doctor or physician.”
That New Mexico! Here’s what else they do there. The other two states, as might be expected, prevent a person from providing unlicensed services if he has been convicted of a felony. Not New Mexico! The convicted felon is prevented from practicing only until he satisfies the terms of his sentence. After that, it’s back to aromatherapy, iridology, polarity therapy, or whatever else he was up to before his unfortunate encounter with the criminal justice system.
I must ask: Is it really good public policy to allow a convicted thief such easy access to a person’s wallet?
And here’s the best part, saved for last: Minnesota and Rhode Island require the practitioner to provide, in writing, “a brief summary, in plain language, of the theoretical approach used by the practitioner in providing services to clients.” What we wouldn’t give to see that! In fact, if you are ever in either of these states, be sure to have a complementary or alternative health care treatment from an unlicensed practitioner, and be sure to get your written, plain language summary of her “theoretical approach.” Send it to me here. [After, of course, signing a complete release absolving me of all liability for anything bad that happens to you at the hands of the unlicensed practitioner.] If my SBM editors agree to it, I’ll write a post about them. And bonus points for any summary containing the phrase “on a quantum level.”
Jann J. Bellamy is a Florida attorney. She left the active practice of law in 2006 to form a non-profit, the Campaign for Science-Based Healthcare, which educates the public about “alternative” healthcare claims and advocates for a state law requiring that all healthcare offered in Florida meet a basic scientific standard. She is also a columnist for Health News Florida.
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