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Legislative Alchemy III: Acupuncture

Acupuncture is typically depicted as sticking needles at various points on the body prescribed (inconsistently, it turns out) by charts indicating purported “meridians” through which “qi” flows in the human, or animal , body. However, from one of the many SBM posts on acupuncture , this one by Dr. Novella , we in fact know that:

the consensus of the best clinical studies on acupuncture show that there is no specific effect of sticking needles into acupuncture points. Choosing random points works just as well, as does poking the skin with toothpicks rather than penetrating the skin with a needle to elicit the alleged “de qi”. The most parsimonious interpretation of the evidence is that the needles (i.e. acupuncture itself) are superfluous — any perceived benefit comes from the therapeutic interaction. This has been directly studied, and the evidence suggests that the way to maximize the subjective effects from the ritual of acupuncture is to enhance the interaction with the practitioner, and has nothing to do with the acupuncture itself. Acupuncture is a clear example of selling a specific procedure based entirely on non-specific effects from the therapeutic interaction — a good bedside manner and some hopeful encouragement.”

Unfortunately, those who draft state legislation do not read SBM. They should. If they did, they wouldn’t be enacting acupuncture practice acts. But they do.

Through the magic of legislative alchemy, acupuncture or, in some cases, “oriental medicine,” is a licensed health care profession in 43 states. Like naturopaths, acupuncturists attempted to expand their geographic range in 2011 and, like chiropractors as well, tried to broaden their scope of practice to include methods and treatments far from their original tradition, wherever that may lie.

Kansas does not become the 44th state

Kansas does not license acupuncturists as a separate “healing art,”although, by statute, both naturopaths and veterinarians can employ acupuncture in their practices. In 2011, the “acupuncture and oriental medicine practice act” was introduced in the state Senate but never made it out of the Public Health and Welfare Committee.

Although it failed, it is worth reviewing for those unfamiliar with acupuncture practice acts as it demonstrates the startlingly broad scope of practice typically granted acupuncturists and “oriental medicine” practitioners by state law. It is as well a perfect example of legislative alchemy in its incorporation of sheer nonsense.

 

As with recent attempts by chiropractors to sound less chiropractic , acupuncturists are apparently trying to camouflage the more psuedoscientific- sounding concepts by re-casting them in what we might call faux biomedical language. Thus, nowhere in the Kansas legislation will you find any reference to “qi” or “meridians.” No, here acupuncture is

a form of health care that is based on a theory of energetic physiology that describes and explains the interrelationship of bodily organs or functions with an associated acupuncture point or combination of points that are stimulated in order to restore the normal function of the bodily organ or function.”

Thus, the “practice of acupuncture” is

the use of needles or of oriental medicine therapies for the purpose of normalizing energetic physiological functions including pain control and for the promotion, maintenance and restoration of health.”

“Qi” and “meridian” are out. “Energetic physiological functions” are in. And needles are not the only way to “normalize” these “energetic physiological functions.” Not by a long shot.

Acupuncturists would also have at their disposal “oriental medicine therapies.” And what exactly is “oriental medicine?” According to this proposed legislation, “oriental medicine”

means the distinct system of health care that uses health techniques of oriental medicine, both traditional and modern, to diagnose, evaluate, examine, manage and treat for the prevention, cure or correction of disease, illness, injury, pain or other physical or mental condition by controlling and regulating the flow and balance of energy, form and function to restore, promote and maintain health.”

So, “oriental medicine” is health care that uses “oriental medicine.” Got it? I suppose the fact that it must achieve its purpose by “controlling and regulating the flow and balance of energy, form and function” is somewhat of an explanation. I do not know, for there is no clue in the proposed statutory language, whether said “regulating the flow and balance of energy” etc. is the same thing as “normalizing energetic physiological functions.” Whatever that means.

In this vein of “daffy definitions,” we also learn that:

  • “biofeedback device” is “an instrument that is used to detect and amplify internal physiological processes and mental functioning.”
  • “herbal and animal-based substances” includes substances of “animal, vegetable or mineral origin.”(emphasis added) (I suppose the draftsman of this legislation missed that day in biology, or missed biology altogether.)
  • “Nutritional supplement means a nutritional substance, including a concentrate or extract of such a substance.” (That’s it — the entire definition.)

Under the proposed statute, the “practice of acupuncture includes, but is not limited to:”

dietary and nutritional counseling “based on traditional [but not "modern", apparently] Chinese medical principles”

recommendation, administration or dispensing of food, vitamins, minerals, enzymes, homeopathic preparations, amino acids or nutritional supplements (see above for definition).

So, homeopathy, supplements, diet, amino acids, vitamins, minerals, enzymes and biofeedback devices were all to become part of acupuncture practice under the new law. Apparently what acupuncturists, like chiropractors, really want to be is naturopaths.

Expanding scope of practice

Acupuncturists in Connecticut, where they are already licensed, were successful in expanding their practice by convincing the legislature to abandon any control over what they do as long as their practices are “consistent with accepted standards within the acupuncture and Oriental medicine profession.”

This was accomplished in a single section of a 98-section public health bill governing such diverse topics as regulation of day care, treatment of STDs, recording of vital statistics, and needle exchange programs. The term “sneaking it in” comes to mind.

Connecticut had already modernized, if you will, acupuncture by eschewing the old-fashioned terms “qi” and “meridians” for “the theory of physiological interrelationship of body organs with an associated point or combination of points for diseases, disorders and dysfunctions of the body.” The new practice act, however, abandons that definition for “modulation and restoration of normal function in and between the body’s energetic and organ systems and biomechanical, metabolic and circulation functions using stimulation of selected points.” Whether this is a new “theory” or simply a restatement of the old “theory” is not disclosed.

In any event, Connecticut acupuncturists are no longer limited to “needles, heat, pressure or electrical stimulation” of said points. Now any “method” is ok as long as it complies with the aforementioned “standards” of the “acupuncture and Oriental medicine profession.”

Also added as means for achieving “promotion and maintenance [as opposed to “modulation and restoration”] of normal function in the body’s energetic and organ system and biochemical, metabolic and circulation functions” are “Oriental dietary principles,” including (of course!) “supplements” and “other practices . . . consistent with the recognized standards of the . . . profession and accepted by the National Certification Commission for Acupuncture and Oriental Medicine.”

Acupuncturists can now also perform “assessment of body function, development of a comprehensive treatment plan and evaluation of treatment outcomes according to acupuncture and Oriental medicine theory.”

Putting it all together, the Connecticut acupuncturist will now be able to assess the body’s energetic system, treat the energetic system with any method consistent with professional standards, and know when the energetic system is modulated/restored/promoted/maintained through assessment of treatment outcomes. An amazing achievement considering that no research has ever demonstrated that this “energetic system” exists or what its properties might be.

 The acupuncturist as naturopath

In addition to their try for licensing in Kansas, and success at expanding their scope of practice in Connecticut, acupuncturists attempted to become naturopaths in other states where they are already licensed. To date, success has eluded them.

In Ohio, a bill would have added a new type of practice — “Oriental Medicine” — separate from acupuncture, while at the same time increasing the scope of practice for acupuncturists. Acupuncturists would be allowed to use “supplemental techniques” including “the use of traditional and modern oriental therapeutics [the scope of which are not defined], counseling [including] the provision of information regarding lifestyle modifications and the therapeutic use of foods and supplements including homeopathics, gladulars, vitamins, and minerals.”

“Oriental medicine” practice, on the other hand, is defined as “a form of health care in which acupuncture is performed with or without the use of herbal therapy” which is not the same as “supplemental techniques” (see above). Once again demonstrating that one does not need to have taken biology to draft licensed health care provider legislation, “herbal therapy” is defined as “the use of herbs, vitamins, minerals, organ extracts, homeopathics or physiological materials for energetic or physiologic therapy.”

New York Senate and Assembly bills would expand “the profession of acupuncture” to allow “recommendation of traditional remedies and supplements including, but not limited to, the recommendation of diet, herbs and natural products, and their preparation in accordance with traditional and modern practices of modern East Asian or Oriental (Chinese, Korean or Japanese) medical theory.” What! No homeopathy?

Acupuncture for drug addiction

In Massachusetts, a bill would expand the scope of acupuncture practice to treat drug addiction via “Acupuncture Injection Therapy” defined as “the injection of herbs, homeopathic, and other nutritional supplements in the form of sterile substances into acupuncture points by means of hypodermic needles but not intravenous therapy.” The purpose of this is to “help prevent addiction to prescription drugs and prevent and reduce drug abuse; to promote, maintain, and restore health; for pain management and palliative care; and for acupuncture anesthesia.” This is so obviously dangerous that snark escapes me. The bill has not passed, although the Massachusetts legislature has not adjourned for the year.

“Acupuncture Injection Therapy” is not the only way acupuncture is used to treat substance abuse. In Colorado, licensed acupuncturists already use “five point NADA auricular acupuncture” which, as a bill summary explains, “is acupuncture done on the ear that is often used to treat substance abuse, mental health and behavioral health disorders.” “NADA” is the “National Acupuncture Detoxification Association.”

Apparently, other health care providers want to get in on the act, so proposed legislation would allow chiropractors, physicians, physician assistants, nurses, mental health professionals, and psychiatric technicians to perform this “five point NADA auricular acupuncture” but only if, as further explained in the summary, “they have successfully completed the proper training.” This bill actually made it to the Colorado House floor, where it failed to pass.

 New Mexico

Faithful SBM readers will be wondering by now, “what about New Mexico, the state where anyone can practice medicine?” And they won’t be disappointed. There was, of course, a bill introduced in New Mexico to expand the acupuncturists’ scope of practice.

In New Mexico, as you might guess, acupuncturists already have limited prescriptive authority. Too limited, in their opinion.

First, they attempted to eliminate the requirement that prescription of “devices” be limited to those “necessary in the practice of oriental medicine.” As for drugs and their mode of administration, acupuncturists already had a formulary in the current practice act, but apparently didn’t like it. So, as did the New Mexico chiropractors, they tried to change it. It would have specifically included the following, although whether the acupuncturists could already prescribe and administer some of these under the current statute is unclear: subcutaneous and intramuscular epinephrine, injectable vitamin B-12, intradermal and subcutaneous injection of homeopathics, dextrose, minerals, sarapin and vitamins, and IV administration of water-soluble vitamins and minerals.

While, under the current statute, acupuncturists can prescribe “bioidentical hormones” they would be able to prescribe under the proposed expansion “topical estradiol, estriol, progesterone, testosterone and desiccated thyroid,” but only if the acupuncturist had “a signed collaborative practice agreement” with an M.D. or D.O. Thus, as with chiropractors and naturopaths who want to prescribe real drugs, adult supervision would be required. The bill died in committee.  Even New Mexico has its standards.

Sticking needles in healthy people

As noted in the Introduction, research discloses that it doesn’t matter where you stick the needle in acupuncture. A bill introduced in the Oregon legislature was refreshingly honest about that fact. The bill, which died in committee, would have changed the statutory definition of acupuncture, currently “an Oriental health care practice used to promote health and to treat neurological, organic or functional disorders by the stimulation of specific points on the surface of the body by the insertion of needles.” “Oriental” would have been removed, as would have “specific points,” which simply became “points in and on the body.” In other words: stick it anywhere, it’s all the same.

As also noted, acupuncture doesn’t work. This makes it perfect for treating someone who isn’t sick, as a Pennsylvania bill — most certainly unintentionally — acknowledged. Under Pennsylvania law, acupuncturists can treat “a person’s condition” without the condition being diagnosed by a physician, dentist or podiatrist for 60 days. After that time, the treatment may continue only if the person “obtained a diagnosis of the treated condition” by a physician, dentist or podiatrist. A proposed amendment to this law would make these limitations inapplicable “if a person does not present any symptoms of a condition.”

It’s really the ideal “CAM” legislation — ineffective treatments for people who are not ill — and it may become state law. Both the House and Senate versions of this bill have made it to the floor of the Pennsylvania legislature, which meets year-round.

Conclusion

As I’ve said before, no person should be subjected to scientifically implausible diagnostic methods and treatments. States should be working to eliminate such practices, not giving out licenses to perpetuate them.

Which brings me to “The Cure,” anti-sCAM legislation I’ll be proposing in a future post. Stay tuned.

 

 

Posted in: Acupuncture, Herbs & Supplements, Legal, Politics and Regulation

Leave a Comment (13) ↓

13 thoughts on “Legislative Alchemy III: Acupuncture

  1. windriven says:

    “Faithful SBM readers will be wondering by now, “what about New Mexico, the state where anyone can practice medicine?””

    Just for grins I looked up the statistical abstract comparing life expectancy by state*. The US average is 73.88 years. Hawaii does best at 77.02. Washington DC does worst at 69.2. New Mexico is right about average at 74.01 years.

    There are, of course, a zillion confounding factors. But, at least in NM the loving embrace of woo has not manifested in shortened life expectancy. It would be interesting to look at the impact of various forms of quackery on life expectancy, morbidity and health care costs.

    *http://www.census.gov/compendia/statab/2012/tables/12s0108.pdf

  2. Dile E. Tante says:

    Are there any advocacy groups that actively oppose these efforts to get states to legitimize quackery? If so, I would like to know who they are and I would be happy to support them.

  3. windriven says:

    @Dile E. Tante

    I don’t know of a single unified group. Political advocacy is time consuming, expensive and difficult, especially when so many of the rules are made at the state level. Getting to know your state senator and state representative is a good start. It is inexpensive to support their candidacies (presuming they deserve support) and supporters do get their telephone calls returned and their concerns heard.

    But those of us who would fight legalized quackery are politically disorganized whereas the quacks themselves are better organized and have definable financial interests to bind them together. Legislators are not in the science business, they are in the people business. When a constituency advocates for given legislation and there is no organized opposition it is pretty easy for them to go along.

    What we need is QuackPAC.

  4. qetzal says:

    Do any of those bills address the issue of malpractice by acupuncturists or TCM practitioners? Or are they all quid (making acupuncture & TCM easier) with no quo (protecting patients and providing legal recourse where appropriate)?

  5. Jann Bellamy says:

    @ qetzal:
    I haven’t surveyed all of the state acupuncture/TCM practice acts, but some do require practitioners to carry malpractice insurance. Even if not mentioned in the practice act, I don’t see why an injured person couldn’t sue a acupuncturist for malpractice although the plaintiff would have to prove the acupuncturist fell below the standard of care for acupuncture, whatever that might be.

    @ Dile E. Tante & windriven:
    There is one group in Colorado run by Linda Rosa RN and Larry Sarner, who were instumental in defeating naturopath licensure in that state. See, Legislative Alchemy I: Naturopathy, http://www.sciencebasedmedicine.org/index.php/legislative-alchemy-i-naturopath/. I created the Campaign for Science-Based Healthcare in Florida, http://www.sciencebasedhealthcare.org, which has addressed attempts in the legislature to adopt an “alternative” vaccination schedule and to include chiropractors among the health care providers who can clear a student athelete for return to play. The latter was mentioned in “Legislative Alchemy II: Chiropractic” http://www.sciencebasedmedicine.org/index.php/legislative-alchemy-ii-chiropractic/
    But, these efforts are scattered and way underfunded compared to what the proponenets have to spend. Sometimes the state medical society will step in and oppose quackery, but I understand from Linda Rosa that in Colorado they did not oppose naturopath licensing.

    @windriven:
    “What we need is QuackPAC.”
    I’m working on it!

  6. windriven says:

    @Jann Bellamy

    “I’m working on it!”

    Let me know when you’re up and running. I’ve got a crisp clean C-note for my opening contribution. If you have any problems with IRS issues I’ll gladly have my wife (CPA, MS Tax) help with the forms.

  7. daijiyobu says:

    Looking forward to “The Cure.”

    -r.c.

  8. Ben Kavoussi says:

    @Jann Bellamy

    “Unfortunately, those who draft state legislation do not read SBM. They should. If they did, they wouldn’t be enacting acupuncture practice acts. But they do.”

    Astonishingly, even when they are presented with evidence, state legislation tends to ignore it.

    Here’s an example which I posted last year:

    The California (CA) Department of Consumer Affairs (DCA) has an informational booklet on Acupuncture and Asian Medicine that makes the claim that based on a 1997 consensus panel, the NIH formally “endorses” the use of acupuncture for a set of specific conditions, and that there is “clear evidence” that it is effective for some of them. This booklet is available at:

    http://www.acupuncture.ca.gov/pubs_forms/consumer_guide.pdf

    Wondering about this “clear evidence,” I wrote a letter to the National Center for Complementary and Alternative Medicine (NCCAM) and asked for a clarification.

    Their response explicitly stated that the CA booklet “misstates the purpose of the 1997 consensus panel on acupuncture.” The NCCAM also added that as a “Federal research agency, the NIH does not endorse any product, service or treatment, nor are NIH consensus documents statements of policy.”

    I therefore wrote to the CA Acupuncture Board to inform them of their misstatements. The response letter I received from the indeed stated that:

    “The Board and its legal counsel, LaVonne Powell, concur that the consumer’s guide does not contain erroneous statements on the efficacy of acupuncture.”

    In other words, while the NCCAM (one of the institutes that make up the NIH) maintains that the NIH does not endorse any product, service or treatment, and that it is a misstatement to say that the 1997 NIH consensus panel of scientists has found clear evidence of efficacy, CA state officials insist it is otherwise!

    In my experience, what we have to deal with is more than willful ignorance: it’s the political influence of acupuncture organizations and schools that prevents them from acting according to science and evidence.

  9. Astonishingly, even when they are presented with evidence, state legislation tends to ignore it.

    Ain’t it the truth. If you go here and scroll down to “A final look at DORA: how Bureaucrats Think,” you’ll get an idea of, well, how bureaucrats think. I ran into the same wall in Massachusetts a few years ago, as described here.

    This makes it perfect for treating someone who isn’t sick, as a Pennsylvania bill — most certainly unintentionally — acknowledged.

    That reminds me of a passage in the Illinois medical practice act that threatens to strip the license from any practitioner who performs an abortion on an unpregnant woman. (Look here under “Language Specific to State Medical Boards: Often Incoherent or Self-Defeating”).

  10. Anthro says:

    @Ben and KA

    The point you both make are at the root of my frustration with trying to counter sCAM.

    I had an EMG (?) test (where first they taser you, and then they stick needles in your muscles and twist them!) to verify carpal tunnel syndrome. When the inevitable comparison to acupuncture came up, the doctor (a specialist, mind you) gave a hearty laugh and said, “of course acupuncture works–it surely works for “eastern” people, and for some westerners”. There was no sarcasm or snark. He was serious. I very nearly walked right out of that large teaching hospital. None of the fellows, residents, or interns made any comment. At least I told him (between bits of torture) that it was total crap. He insisted it “works” for “eastern” people.

    I despair.

  11. Quill says:

    “That reminds me of a passage in the Illinois medical practice act that threatens to strip the license from any practitioner who performs an abortion on an unpregnant woman. (Look here under ‘Language Specific to State Medical Boards: Often Incoherent or Self-Defeating’).”

    Thank you very much for the laugh and link to your earlier post. I have a personal and professional interest in and fascination with language. It never fails to amaze, amuse and often infuriate when such obvious howlers are put forth as laws.

    With this law on the books, though, corollaries do come to mind. For example, if it’s illegal to perform an abortion on someone who isn’t pregnant, would it also be illegal for a CAM practitioner to “rebalance” someone’s “energy” who isn’t in a state of “out of balance”? Or perhaps a chiropractor could be arrested for “fixing” a “subluxation” that isn’t present? Maybe an acupuncturist would be put in the cuffs for inserting needles into non-existent meridians? I mean if Illinois is going to crack down on attempted non-pregnancy abortions, they really should consider going after all the other non-occurring events, too. Fair is fair.

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