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Legislative Alchemy: 2012.5

Legislative alchemy, as faithful SBM readers know, is the process by which state legislatures and Congress take scientifically implausible and unproven treatments and diagnostic methods and turn them into licensed health care practices and legally sold products. Previous posts have explored this phenomenon in naturopathychiropractic and acupuncture.

Our last report on the legislative efforts of CAM providers appeared almost six months ago, the beginning of the legislative year for many states. Now, most legislatures have shuttered the statehouse doors and gone home. So let’s see how the CAM practitioners are doing this year.

Naturopathy

A goal of the American Association of Naturopathic Physicians (AANP) is “full scope of practice” in all 50 U.S. states. They’ve got a ways to go. Naturopaths are currently licensed to practice in only 17 states and the District of Columbia. Bills to expand licensure failed to make it out of committee again during the 2012 legislative sessions of two states, Iowa and Maryland. In Colorado and Virginia, where licensing bills failed to pass in previous years, no new legislation was introduced to license naturopaths in 2012. Bills to license naturopaths are still pending before legislative committees in Illinois, Massachusetts, Michigan, North Carolina, New York and Pennsylvania. However, in North Carolina and Pennsylvania these bills have been languishing in committee since 2011, making passage appear less likely This is especially true in North Carolina, where the legislative session ends soon.

Another strategy of the AANP is “progressive legislation.” This means that while some compromise in initial licensing legislation may be necessary to get a licensing bill passed, successive attempts can cure any initial disappointments through expansion of scope of practice and insurance coverage, for example. Nowhere was this strategy more successful in 2012 than in Vermont, where “naturopathic physicians” (as the Vermont Legislature calls them) were officially defined as “primary care providers” (PCPs) for the purpose of health insurance coverage. The new law means that naturopathic physician practices can qualify as patient “medical homes” under the state’s Blueprint for Health and that they may practice as such independently and without supervision.

As conceived by Vermont’s Blueprint for Health, all citizens are expected to have a PCP, who heads the patient’s “patient-centered medical home” (PCMH) and who coordinates all of his medical care, including mental health, social work, physical therapy and specialty care. Thus, the law designating naturopathic physicians as PCPs clarifies that a naturopath, if she otherwise meets the state’s PCMH’s requirements, will be in complete charge of the healthcare of any patient who chooses the naturopath’s practice as his PCMH.

One snag in the naturopaths’ Vermont plan was the state’s reliance on the National Committee for Quality Assurance (NCQA) to score PCP practices to see if they qualify as PCMHs. (The NCQA is a non-profit organization that accredits health plans, medical homes, and other components of the health care system nationwide.) However, the NCQA didn’t accept N.D.s as PCMH applicants. (I wonder why.) So the state of Vermont went to bat for naturopaths and now the NCQA has agreed to assess N.D.s for eligibility as PCMHs in Vermont.

Unfortunately, a much-needed counterweight to Vermont’s expansion of naturopathic practice did not make it out of committee. A bill would have required a state pharmacologist to approve the naturopathic formulary. Alarmingly, the current formulary includes colloidal silver preparations, to treat eye infections, and silver, which can be administered intravenously, both dangerous substances which no physician in his right mind would ever use as a treatment. Silver can cause argyria, permanently turning the skin blue or grey, as detailed in this report by Rosemary Jacobs, an argyria sufferer who supported the bill. In addition, the bill would have required N.D.s to clearly state that they are not M.D.s in all promotional materials.

New York’s naturopath licensing bill is wending its way through the Senate and Assembly committee system. However, if passed, naturopathic practice will be quite different than in Vermont.

Both the N.Y. Senate and Assembly versions of the bill begin with the usual false premises of CAM practitioner licensing – that regulation is necessary to protect the public health and welfare and that one way to accomplish this is to require naturopaths to be formally educated in naturopathic schools. Unlike Vermont, though, naturopaths won’t be primary care practitioners as they would be able to practice only under the supervision of a physician. The scope of practice is limited to

Application of non-pharmaceutical and non-surgical treatments, which complement medical treatment, . . . to encourage and facilitate the body’s self healing process.”

In other words, they can practice their vitalism but only if it “complements” a medical treatment. Treatments are limited to

the application of the following healing systems of physical, nutritional or natural agent regiments, dietary changes; vitamins, minerals and other dietary supplements and over-the-counter herbal medicine; counseling and education on lifestyle changes; homeopathy; hydrotherapy, manipulation and mobilization; exercise therapy and mind body therapies such as yoga and meditation.

Naturopaths would be prohibited from using invasive procedures, including surgery, lasers, injections, ionizing radiation, therapeutic ultrasound, and electromyography, among others. As well, they could not use anesthesia, provide obstetrical or psychology services, or interpret x-rays, MRIs, or diagnostic tests. Interestingly, beginning in 2015, naturopaths would be required to complete a one-year “residency” under the supervision of another naturopath.

If this legislation passes, I’ll make two predictions. One, this is simply part of a progressive legislation strategy on the part of naturopaths and they’ll be back before the N.Y. legislature again and again trying to expand their scope of practice and get out from under physician supervision. Two, many naturopaths will be employed by or in partnership with “integrative” physicians, who will use them as a marketing tool and, in an employment relationship, profit center. Just imagine the cachet having a naturopath in the office would add to the integrative brand.

Chiropractic

Chiropractic is already licensed in all 50 states so proposed legislation tends to fall into the progressive legislation category. Over the last few years there have been attempts to expand the scope of chiropractic practice by “updating” a state’s chiropractic practice act, supposedly to reflect chiropractors’ current education and training. This is apparently part of a larger goal of rebranding the chiropractor as a primary care physician with a scope of practice roughly equivalent to a family practice M.D. or D.O., a subject both Harriet Hall and I have addressed in previous posts.

Fortunately, one such attempt failed to get out of committee in the 2011-2012 Minnesota legislative session, but expect more efforts along these lines in the future. Minnesota currently defines “chiropractic” as

the science of adjusting any abnormal articulations of the human body, especially those of the spinal column, for the purpose of giving freedom of action to impinged nerves that may cause pain or deranged function.

Regular SBM readers will be able to translate this as “the detection and correction of the chiropractic subluxation,” which, as regular SBM readers also know, does not exist.

The new, improved definition would have defined “chiropractic” as

the health care discipline that emphasizes the inherent recuperative power of the body to heal itself without the use of drugs or surgery. Chiropractic focuses on the relationship between structure, primarily the spine, and function, as coordinated by the nervous system, and how that relationship affects the preservation and restoration of health.

This meaningless nonsense is taken from the Association of Chiropractic College’s 1996 “consensus” definition of chiropractic, which simply restated basic subluxation “theory.”

The gibberish continued along these lines by giving chiropractors the authority to manipulate “abnormal articulations,” defined to include subluxations and “other pathology that results in . . . disturbances within the nervous system.” This, of course, is simply reworded traditional chiropractic philosophy, which holds that disturbances in “nerve flow” between the brain and bodily organs can cause disease.

The bill also threw in the right to use acupuncture as

a modality of treating abnormal physical conditions by stimulating various points of the body or interruption of the cutaneous integrity by needle insertion to secure a reflex relief of the symptoms by nerve stimulation as used as an adjunct to chiropractic adjustment.

In other words, more gibberish.

But the most alarming language in the bill concerned the broad diagnostic authority given to chiropractors:

‘Diagnostic services’ means clinical, physical, laboratory, and other diagnostic measures, including all types of diagnostic imaging that may be necessary to determine the presence or absence of a condition, deficiency, deformity, abnormality, or disease as a basis for evaluation of a health concern, diagnosis, differential diagnosis, treatment, further examination, or referral.

And look at this definition of “therapeutic services” within the scope of practice:

Rehabilitative therapy, acupuncture, and all of the therapeutic, rehabilitative, and preventive sciences and procedures for which the licensee was subject to examination under section 148.06, including, but not limited to, physical examinations, healthy screenings, and counseling regarding health lifestyles and behavior modification.

The reference to “examination under section 148.06” essentially means that any subject the National Board of Chiropractic Examiners chooses to include in its exams would be automatically included within the scope of chiropractic practice in Minnesota.

A new legislative priority of chiropractors appears to be a law which permits chiropractors not licensed in a particular state to come in and treat patients during “state emergencies declared by the Governor.” I suppose there is nothing like a state emergency to bring out the “subluxations” in a body. A bill with this provision passed in Oklahoma only to be vetoed by the Governor. In South Carolina the same language was included in a bill which died in committee.

In a rare piece of proposed legislation that restricts, rather than expands, the scope of chiropractic practice, the California Senate passed a bill prohibiting chiropractic treatment for hypersensitivity to foods, medications, environmental allergens, or venoms. Unfortunately, this indicates there are enough of these treatments being done by California chiropractors to warrant preventive legislation.

The majority of chiropractic legislation concerned efforts to mandate insurance coverage of chiropractic and indicates just how busy chiropractic lobbyists are. For example, a bill in Oklahoma would have prohibited a greater copayment for chiropractic services than that imposed for a primary care physician for the same or similar diagnosed condition even if “different nomenclature” is used to describe a condition. Presumably, this would mean that if two patients were diagnosed with acute low back pain, and one was treated by a chiropractor, who decided that the cause was “vertebral subluxation complex” and “adjusted” the subluxations, and the other by a family physician M.D., who prescribed a conventional medical treatment, the patient’s copayment for the chiropractor’s service could not be greater than that for the M.D. Fortunately, this bill was voted “do not pass” by a Senate insurance committee and Oklahoma legislature has adjourned.

A few more examples of insurance or coverage related bills and their status:

  • Connecticut: mandates coverage of chiropractic services under state employee health care plans; died in committee.
  • Connecticut: mandates coverage of chiropractic treatment in Medicaid services; died in committee.
  • Indiana: rolls back reduction in Medicaid reimbursement for chiropractic services; died in committee.
  • Iowa: requires that co-payment for chiropractic services be no greater than co-payment for medical services for the same or similar diagnosed condition; died in committee.
  • Kentucky: makes it an unfair trade practice to impose requirements in a provider contract with a chiropractor that restrict, reduce or negate benefits that are otherwise provided to the insured under a health benefit plan, although insurer is not prevented from conducting a utilization review; passed and signed into law by governor.
  • Missouri: requires chiropractors to be reimbursed by Missouri HealthNet Program if services are otherwise covered by program and are within scope of chiropractic practice; voted “do pass” by House health insurance committee but did not pass before the legislature adjourned.
  • New Jersey: requires chiropractors to be reimbursed at the same rate as other health care providers; in committee.
  • New York: includes chiropractic services within the definition of “comprehensive health services” for purposes of health maintenance organizations; in committee.

Acupuncture

An attempt to increase the number of states licensing acupuncturists failed when the Alabama legislature adjourned without taking up an acupuncture practice act.

California, where acupuncturists are licensed, has a number of acupuncture-related bills pending. One, now in committee, requires the state agency overseeing worker’s compensation to determine whether acupuncturists are qualified to conduct disability determinations and, if not, what additional training might bring them up to par. The bill does not specify whether the disability would be based on a conventional Western medical diagnosis or upon traditional acupuncture diagnoses, such as running piglet disorder.

Another California bill establishes a new health care practice, “Traditional Chinese Medicine Traumatology,” which

includes a range of treatments to address both acute and chronic musculoskeletal conditions, as well as many nonmusculoskeletal conditions. Techniques include, but are not limited to, brushing, kneading, rolling, pressing, and rubbing the areas between each of the joints to open the body’s defensive chi and stimulate the energy movement in both meridians.

The Traumatologists will be governed by a non-profit organization, the Traditional Chinese Medicine Traumatology Council,  may work only under the supervision of an orthopedic surgeon and must be at least 18 years of age. The bill has passed the California Senate and is now before the Asssembly. Integrative orthopedic surgery, anyone?

To protect consumers from being misled by the use of the title “doctor,” a bill passed by the Senate and now before an Assembly committee would prevent the use of that title by an acupuncturist unless he or she holds an actual doctorate in acupuncture, oriental medicine, or biological science, or something “otherwise related” to the practice of acupuncture. So, apparently, if you have a doctoral degree in, say, zoology, and are an acupuncturist, you can call yourself “Dr.” ?

In Mississippi, acupuncturists were unsuccessful in deleting the statutory requirement that acupuncture patients must have a written referral from a physician and that acupuncture procedures be performed under the general supervision of the referring physician. A bill requiring insurance coverage for acupuncture when it was deemed medically necessary by a physician also died in committee.

Ohio already licenses acupuncturists. A bill passed in the Ohio House and now in the Senate would add “oriental medicine” as a licensed health care practice, defined as “a form of health care in which acupuncture is performed with or without the use of herbal therapy.” Herbal therapy is “the use of foods, herbs, vitamins, minerals, organ extracts, and homeopathy.” Acupuncture practice would be expanded to include

the use of general nonmedical nutritional information, traditional and modern oriental therapeutics, heat therapy, moxibustion, acupressure and other forms of Chinese massage and educational information regarding lifestyle modifications.

A bill mandating insurance coverage for acupuncture diagnosis (including “the use of observation, listening, smelling, inquiring, palpation, pulses, tongue, physiognomy, 5 element correspondences, ryodoraku, German electro-acupuncture, and thermography”) and treatment has been set aside for study in a Massachusetts legislative committee. Similarly, New York is considering including acupuncture treatments in the worker’s compensation insurance program. Both states would benefit from a look at Florida’s expensive experience with acupuncture in no-fault automobile accident insurance coverage.

Utah added homeopathy to the list of permissible acupuncturists’ treatments in a bill signed into law by the governor. Added as well is a strange provision permitting acupuncture, moxibustion and other methods of diagnosis and treatment based on traditional oriental medicine “and modern research,” a term which is undefined in the new statute. I suppose if you held acupuncturists to the literal terms of the statute they couldn’t practice, as none of their diagnostic methods and treatments are based on “modern research,” but I feel confident that an acupuncturist’s definition of “modern research” is far too liberal for that result.

Updates

Legislation discussed in previous posts has reached a resolution, fortunately with good results.

I am happy to report that an extremely ill-conceived Wisconsin bill, which would have resulted in pretty much anyone being able to practice medicine, failed to pass. As I detailed in a previous post, the bill would have removed the prohibition against the unlawful practice of medicine and surgery, nursing, dentistry, physical therapy, psychology, pharmacy and over 20 other health care professions and occupations for which some form of licensing is required by law, as long as the so-called “complementary and alternative healthcare service” provider stayed away from, for example, surgery, x-rays, prescribing drugs, and “conventional western medicine” diagnosis. Of all the ill-advised and dangerous CAM legislation ever proposed, this, in my view, takes top prize.

I am also relieved to report two positive results in my own state, Florida. First, a bill requiring that youth athletes who have suffered a concussion be cleared by a physician before returning to play did not include chiropractors among those authorized to make this evaluation. Chiropractic lobbyists pushed to include chiropractors, representing to the legislature that chiropractors were qualified to manage youth athletes with concussions. This included a boast that there were over 100 “chiropractic neurologists” in Florida. Fortunately, the bill simply requires that a physician trained in the diagnosis and management of concussions do the job, and punts the decision as to who might qualify to a Sports Medicine committee consisting of, among others, eight M.D. or D.O. physicians and one chiropractor, making the chances of chiropractors being included pretty much nil.

The Florida legislature also curtailed some of the abuses of personal injury protection (PIP) no-fault auto insurance medical claims, discussed in a previous post, by limiting the full $10,000 benefit to emergency medical conditions. (Otherwise, there is a $2,500 cap.) The new law also eliminates massage therapy and acupuncture, which accounted for thousands of dollars per claim, from eligibility for PIP benefits.

Conclusion

Congratulations to you if you made it through this morass of legislation and are still awake. I trust that you are suitably alarmed by the continued efforts of CAM practitioners to ply their trades and to be paid for it with your money. And suitably alarmed enough to do something about it. Here’s a website linking to all state legislative websites so you can let your legislators how you feel when CAM legislation threatens in your state.

Posted in: Acupuncture, Chiropractic, Legal, Naturopathy, Politics and Regulation

Leave a Comment (7) ↓

7 thoughts on “Legislative Alchemy: 2012.5

  1. daedalus2u says:

    It seems to me, that any legislation authorizing naturopaths to be PCPs has to compel them to follow the Standard of Care for PCPs.

    A requirement that PCPs carry malpractice insurance to protect patients from care that does not meet the Standard of Care would help.

    Since naturopaths specifically reject the Standard of Care, they are uninsurable.

  2. Janet Camp says:

    There is a huge need to get legislators literate in very basic science–or even basic skepticism. It seems to me that this would be an easier way to stop this nonsense before it gets started–oops, too late. Now we not only have to try to stop it spreading, but a lot needs to be UNdone as well.

    I keep saying this, but MD’s need to do more to stop CAM in their own ranks. Docs who dabble (and worse) in woo are the best connection to respectability that the woo-community has and too many are shruggies.

  3. daijiyobu says:

    According to NYANP sources today the NYS ND bill is dead.

    -r.c.

  4. I’m just utterly shocked that any quacks, such as chiropractors, naturopaths, and acupuncturists, are licensed in any way, shape, or form. Aren’t we all happy that our tax dollars are being spent to pay the salaries of people who have to manage and handle the licensing of these lunatics?

    It’s phenomenal that quack chiropractors can lobby their way into being paid by insurance companies, and yet there’s not a shred of evidence that they can do anything that actually benefits a patient. If they had any self-respect they’d collectively jump into the Grand Canyon.

  5. Adam Rufa says:

    The New York Physical Therapy Association has been challenging the proposed scope of practice of ND.

    http://nypta.blogspot.com/2012/06/naturopaths.html

  6. Linda Rosa says:

    Thank you, Jann, for this informative essay. The amount of bills promoting CAM practices nation-wide is staggering.

    We had an exceptionally easy time in Colorado in the 2012 legislative session, with only a bill that would have allowed other health professionals to do ear acupuncture to treat addiction.

    I have to say that I used to be for term limits for state legislators, but I am no longer. With term limits, the task of educating legislators about CAM is much more difficult because there are so many more new ones.

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