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Legislative Alchemy: Acupuncture and Homeopathy 2013

Acupuncture, or more broadly, Oriental or Traditional Chinese Medicine, is a

weird medley of philosophy, religion, superstition, magic, alchemy, astrology, feng shui, divination, sorcery, demonology and quackery.

And via the particular form of magic known as legislative alchemy, acupuncture is a licensed health care profession in 44 states and the District of Columbia.

A growing body of evidence demonstrates acupuncture is simply an elaborate placebo. Even the CAM-friendly National Center for Complementary and Alternative Medicine, says

Although millions of Americans use acupuncture each year, often for chronic pain, there has been considerable controversy surrounding its value as a therapy and whether it is anything more than placebo.

Someone should tell the state legislatures.

During the current state legislative sessions, some 30 bills affecting the practice of acupuncture have been filed. In Wyoming, where acupuncture and Oriental Medicine are not licensed, a bill to do so died in committee. So far, there are no other bills to expand licensed acupuncture practice to the few states where no licensing laws exist.  (Note that medical doctors, and in some states chiropractors and naturopaths, can practice acupuncture within the scope of their current practice acts, whether acupuncturists are separately licensed or not.)

In Mississippi, acupuncturists can practice only under the supervision of a physician, with some fairly stringent requirements. First, a physician must perform a diagnostic exam. If a referral to an acupuncturist is made, the physician must specify how the ailment or condition diagnosed is to be treated, the intervals at which the acupuncturist must provide progress reports to the physician, and any conditions or restrictions placed on the course of treatment. The physician must be available for consultation with the acupuncture practitioner at a location not more than 60 minutes away.

Needless to say, Mississippi acupuncturists are not happy with this and got a bill introduced in the current session getting them out from under physician supervision. That provision got dropped in an amendment to the bill, but at that point the acupuncturists were able to add an amendment which would have prevented physical therapists from using “trigger point dry needling or intramuscular manual therapy.” (I guess they wanted something, anything.) Unfortunately for them, that also got dropped by further amendment and all they really got was extension of their practice act until 2017 (or 2016 if a House Bill wins out over the Senate version).

“Wellness Promotion”

Odd companion bills have been filed with the Massachusetts House and Senate establishing a “Commission on Acupuncture and Wellness” within the Department of Public Health. The Commission is charged with making

an investigation and comprehensive study of the potential for better integrated use of acupuncture services to expand access, reduce health care costs, and provide improved quality of care to Massachusetts residents.

A report must be presented in six months and annually thereafter. The report will include suggestions for any necessary legislation to implement recommendations.

It appears to be a foregone conclusion that acupuncture can “reduce health care costs” and “improve quality of care,” because the bill forces insurers and other groups, such as health maintenance organizations, to cover acupuncture for pain management, post-traumatic stress disorder, substance abuse treatment and nausea.

The bill doesn’t force coverage for “wellness promotion” via the use of acupuncture, although the Commission on Acupuncture and Wellness is charged, as the name might imply, with “consider[ing] strategies to evaluate and implement effective integration of acupuncture” for that too. I don’t know what “wellness promotion” is or how acupuncture might promote said wellness. Maybe it’s something like chiropractic maintenance treatments, but instead of getting your spine adjusted to remove nerve flow interference you’d be stuck with needles to unblock your chi, whether you need it or not.

Despite all of this, the composition of the Commission on Acupuncture and Wellness does present some tantalizing possibilities. In addition to acupuncturists, the Committee must include members from the public health field, insurance industry and (listen up, Kimball Atwood, M.D.) medical profession. Suppose these dominate the Committee and its report concludes that acupuncture is nothing more than magical thinking which induces a placebo effect and is not effective for anything, including “wellness promotion.” What then?

In Pennsylvania, the acupuncture practice act allows an acupuncturist to

treat a person’s condition without the condition being diagnosed by a licensed physician, dentist or podiatrist for 60 calendar days.

One wonders how the person or the acupuncturist knows there is a “condition” to treat without any diagnosis. In any event, the condition may not be treated beyond 60 days without getting a diagnosis from one of the specified professionals. A bill proposes an amendment to the practice act adding that these limitations do not apply

if a person does not present any symptoms of a condition.

Which brings me to the question: then why is the person being treated? Perhaps this is a veiled attempt to allow the sort of “wellness promotion” the Massachusetts legislation contemplates.

Before we move on to the ever-popular subject of health insurance, one more bill bears mentioning. An Oregon bill addressing several acupuncture topics eliminates “traditional and modern techniques of diagnosis and evaluation” from the acupuncture practice act but does not replace it with any other provision authorizing diagnosis. If this weren’t Oregon, I’d think of this as a step in the right direction but it is probably just a mistake. Or maybe just another sneaky attempt to allow “wellness promotion” by eliminating the need for a diagnosis.

As promised: Insurance

Staying with Oregon for a moment, as I mentioned before regarding naturopaths and chiropractors, a bill would require coordinated care organizations to include acupuncturists as health care providers. They would be paid at the same rate as other specialty care providers. As I said previously, this upends the entire purpose of these organizations, which is to provide better care for Medicaid beneficiaries at a lower cost by mandating that all providers practice evidence-based medicine.

In Vermont, a bill would mandate coverage of acupuncture by Green Mountain Care, the state’s single payer insurance program covering all state residents. In New York, several bills mandate inclusion of acupuncture under worker’s compensation insurance. The New York legislature might want to review Florida’s experience with including acupuncture under the state’s no-fault personal injury protection auto insurance law. When a report showed acupuncture charges per patient were greater than for medical care the legislature wisely removed acupuncture coverage.

“Certified homeopaths”

Homeopathy, as David Gorski rightly says, is the perfect quackery.

Anyone who is any sort of a scientist or has an understanding of science, when confronted with these simple, well-established physical laws, might—just might—start to rethink his belief in something that is so utterly implausible from a scientific standpoint. Indeed, homeopathy is about as close to impossible as anything I can imagine, because for it to “work” multiple well-established laws of physics and chemistry would have to be not just wrong, but spectacularly wrong.

Although Connecticut licenses “homeopathic physicians,” who must be medical doctors, there are only 10 of them in the entire state. One can well imagine why, as the cognitive dissonance must be excruciating. Other licensed health care providers practice homeopathy as well, primarily naturopaths, who spend a good deal of time studying it in naturopathy school, where conflict with basic scientific principles apparently is less troubling.

This year a bill has been introduced in the Connecticut legislature to remedy a perceived lack of access to homeopathy practitioners via state certification of “classical homeopaths,” that is, those who have passed the certification requirements established by the Council for Homeopathic Certification but who are not medical doctors.

Hmmm . . . I wonder why all of a sudden classical homeopaths want the imprimatur of state certification? Could it be Section 2607 of the Affordable Care Act?

SEC. 2706. NON-DISCRIMINATION IN HEALTH CARE.

(a) PROVIDERS.—A group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law. . . .

I don’t know but you can bet we’ll find out soon enough if this bill passes. If Section 2607 is the motivation classical homeopaths will waste no time in making their demands for coverage, including any plan covering Connecticut state employees falling within the definition of “group health plan” or “health insurance issuer.” Perhaps this knowledge might temper the legislature’s desire for certified classical homeopaths in Connecticut.

The rationale for certification is set forth in a 2011 memorandum addressed to the Connecticut Department of Public Health from “Homeopathy for Connecticut” (HFC),  an organization pushing the idea. According to the memo:

The risk of harm to the public is negligible since homeopathy is not a medical practice, homeopaths do not diagnose or treat disease or perform invasive procedures, and homeopathic remedies are available over the counter. Homeopaths indicate homeopathic remedies to assist in a person’s natural ability to restore health. A homeopathic remedy works on an energetic level by stimulating the body to heal itself. Consequently, in the U.S. there are very low rates of consumer complaints, malpractice claims or investigations regarding any type of homeopathic provider. In Connecticut, there have been no malpractice decisions made against homeopaths.

I have to concede the point that few people are actually physically harmed by homeopathy unless they use it as a substitute for real medical care. After all, water and sugar pills are pretty safe. But the HFC apparently is unaware of the several class actions against manufacturers of homeopathic products pending around the country alleging another type of injury — consumer fraud.

I do quarrel with the proposition that homeopaths “do not diagnose or treat disease.” They do, they just don’t call it that. This is clear from a fascinating document on the website of the Council for Homeopathic Certification, the organization whose certification will permit homeopaths to become state certified if this bill passes. According to the HFC, the Council

provides rigorous standards and a national exam that assesses competency in the skills required for professional practice of homeopathy.

The exam includes several case presentations. The Council’s guidelines on presentations provides clear evidence that, whatever they call it, homeopaths do diagnose and treat disease, or at least their version of disease. After all, if a homeopath is going to recommend a homeopathic product it obviously has to be based on some assessment of the patient’s problem and some idea of why a particular product might be beneficial for this problem. (The guidelines also use Anna Karenina as template for successful presentation but I’m not even going to go there. Let’s just say it’s quite a stretch from Tolstoy to homeopathic case presentation and leave it at that.)

But that is not what makes the guidelines fascinating. No, it is getting inside the head of a homeopath during his thought process of determining what is wrong with a patient and how to address it with homeopathic remedies. Or, as we would say, diagnosing and treating the patient. I can’t begin to describe it. You really must read it for yourself. (From the Home page, click on “Case Submission Guidelines” under the “Popular Downloads” heading. See “Acceptable Case (1),” starting on page 6, although the preceding pages are quite interesting too.)

Fighting Back

This post, as well as earlier legislative alchemy posts, demonstrates that CAM providers will introduce legislation friendly to their interests, if not in the public interest, each year. And they will keep trying until they get their way. Too often, the only groups opposing this legislation are other health care providers, such as medical societies. This leaves valid concerns subject to dismissal on the charge that there is simply a turf war going on. (Unfortunately, instead of fighting implausible and unproven therapies, some medical doctors and medical institutions give unwarranted credibility to CAM treatments like acupuncture by promoting it as a valid therapy for a number of conditions.)

Unless citizens become more proactive in fighting these initiatives, CAM providers will enjoy an ever-increasing scope of practice and insurance coverage. Several comments have requested more concrete information on how to fight back. We’ll address this important topic in a post soon.

Posted in: Acupuncture, Homeopathy, Legal, Politics and Regulation, Traditional Chinese Medicine

Leave a Comment (11) ↓

11 thoughts on “Legislative Alchemy: Acupuncture and Homeopathy 2013

  1. Eugenie Mielczarek says:

    Jann, Thank you for your excellent update on state legislative actions.
    A question – if my memory is correct , wasn’t there a major law suit regarding a homeopathic product which contained zinc . It was heavily marketed for for colds . Some users of the product lost their sense of taste. I believe the suit was settled in favor of the complainants. Zinc like copper is a trace metal which depending on your genetic heritage can have surprising physiological consequences.
    Eugenie Mielczarek

  2. NYUDDS says:

    Eugenie, one such product was Zicam nasal spray, which was implicated in many cases of anosmia and which the FDA ordered the manufacturer to withdraw from sales. The homeopathic concoction of Zicam is still available to true believers however, in the form of a liquid @ 100x. Zicam is heavily marketed and regulated. Why anyone would spend the $$ for a product that treats a self-limiting cold (best estimates is that the cold is shortened by 1/2 day) is beyond me. Take a look at just how heavily marketed Zicam is:
    http://www.fda.gov/Drugs/DrugSafety/PostmarketDrugSafetyInformationforPatientsandProviders/ucm166927.htm
    Another reason to stop usage was the presence of B. cepacia in one large sample. This contamination also elicited FDA action:
    http://www.clinicaladvisor.com/bacterial-contamination-prompts-zicam-nasal-decongestant-recall/article/273279/

    The next big homeopathic push is for “Tag Away,” a skin tag removal liquid. You’ve probably seen it on daytime TV. Plain water at a Perrier price:
    https://www.gettag-away.com/?tag=im|sm|go|gn|01&a_aid=011

  3. NYUDDS says:

    Hit too many numbers! The dilution factor of the Zicam prep referenced is 1x. Incidentally, here is a homeopathic view of Zicam that says it is NOT “true homeopathy:”
    http://nationalcenterforhomeopathy.org/content/zicam-is-not-homeopathy

  4. cervantes says:

    More specifically the people lost their sense of smell, but that is a major part of the experience of food flavor. I have a friend who suffered that fate, it’s a total bummer.

    True, the stuff wasn’t really homeopathic, but apparently putting that label on it helped with marketing. Homeopathic remedies at least truly are harmless, except for the deception.

  5. Janet says:

    I anxiously await the “fight back” post!

  6. daijiyobu says:

    I call upon the presence of DANA ULLMAN.

    -r.c.

  7. FulfilledDeer says:

    Seriously, I was already writing “BUT HOW?” in my head before I got to the last two sentences.

    But then you anticipated that, so I have nothing useful to say…

  8. cervantes says:

    There is actually a public health case to be made for licensing of acupuncturists, similar to the case for barbers and tatoo artists. Assuming that acupuncture is going to happen anyway, there should be enforceable standards for sterility and otherwise safe practice; and people should get their licenses pulled for telling customers that they can be effectively treated by acupuncture for conditions urgently requiring medical intervention.

    However, as far as I know that is not the intent or effect of most licensing regimes. Something to think about though — if licensure had the effect of restricting practice to be relatively safe, rather than appearing to constitute an endorsement, it could be justified.

  9. A small group of Oregon acupuncturists asked for clarification of the scope of practice last year, which led to the conclusion that the vague wording of the law was out of date. This was done largely out of concern for consumer protection issues (i.e. the lack of standards of care leaves it up to individual acupuncturists to be informed enough to avoid recommending heavy metals, endangered species, and toxic herbs, and to know what the limits of diagnostic methods should be). You’re welcome.

    In California, Acupuncturists are specifically barred from diagnosing diseases or advertising that they can treat/cure them (essentially, they are limited to pain management). This isn’t strongly enforced.

    As Cervantes mentions, part of the reasoning for licensing acupuncturists was to avoid an underground world of dirty needles. However, by the State giving such a blessing to the practice through licensing which promotes the diagnosis and treatment of diseases using acupuncture and herbs, they increased interest in the profession (I can speak personally to that–if the State didn’t have such an attractive license for acupuncture with a broad scope of practice, I wouldn’t have felt it valid or appealing). When the licensing laws were made, the state of media coverage and research made it look like acupuncture was much more effective than it now appears to be.

    Most acupuncturists aren’t aware (or accepting) of the current ‘best evidence’ which has led SBM, Edzard Ernst, Bausell, etc. to conclude that acupuncture is a highly effective placebo (as far as placebos go). Given the plethora of implausible offshoots (tuning forks, astrology, homeopathy) which are marketed to acupuncturists all the time, there is a long way to go for concepts such as patient autonomy, informed consent, and conflict of interest to be integrated into the TCM/Naturopathic/Chiropractic worlds. In fact, it is highly unlikely that it will happen at all without major battles of legislation. Culture, religion, science, and law are clashing in new ways here.

  10. daijiyobu says:

    Speaking of homeopathy, there’s Martin Sheen the actor:

    (see http://www.prweb.com/releases/2013/3/prweb10503549.htm ):

    “the producers of Breakthroughs with Martin Sheen are announcing a May debut for a new report investigating the growth in the homeopathic remedy industry [...] in this new report, Breakthroughs will explore the reasons behind the growth and find out what is attracting people to these alternative remedies. The producers will also talk to critics who warn against relying too heavily on these substances that do not undergo the rigorous testing and trials of modern medications [...] check local listings for air times on public television and PBS affiliates in individual markets.”

    The fair and balanced treatment of unicorn tears? I wait to see.

    -r.c.

  11. pharmavixen says:

    As Cervantes mentions, part of the reasoning for licensing acupuncturists was to avoid an underground world of dirty needles.

    As someone who works in drug addiction treatment, I see a direct analogy to harm reduction, where clean syringes are handed out for free to intravenous drug abusers to reduce the spread of blood-borne illnesses. Perhaps that’s part of the problem faced by legislators, who are caught between those of us who protest that health care must be evidence/science based, and the woo meisters, who say that if they are not regulated, they will be driven underground, or to the back alleys, whatever metaphor you have for where the sketchy things happen.

    So from a legislator’s POV, regulation is harm reduction.

    [digression]
    (Back when I was a Shoppers Drug Mart pharmacist, I was selling a box of syringes to one of our regulars, who quipped, “Because I’m a diabetic, I have to pay for my syringes. If I were a heroin addict, I’d get them for free.)
    [/digression]

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