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Legislative Alchemy: The New Year

A new year brings new opportunities for practicing the magic of legislative alchemy, the process by which state legislatures transform implausible and unproven diagnostic methods and treatments into perfectly legal health care practices, such as naturopathy, chiropractic and acupuncture. Different states have different legislative calendars, but many begin a new session soon after the first of the year. This gives “complementary and alternative medicine” providers a fresh opportunity to increase their scope of practice, insurance coverage and influence.

The state house doors have barely opened but CAM-friendly bills are already being docketed and sent on to health care and other committees for analysis. Unfortunately, legislators seem less than adept at critical thinking when it comes to perusing CAM legislation. To this point, I’ll start with an example from 2011: “Vertebral Subluxation Awareness Month” in Pennsylvania.

Pennsylvania honors the subluxation

Just a few months ago, the Pennsylvania Senate adopted Resolution 195, which I deliver to you unedited (with apologies for the length of the quotation) because there is no better way to convey the sheer foolishness of their action:

WHEREAS, Optimum performance and health of the human body depends on the unfettered, free transmission of mental impulses, or nerve impulses between the brain and all cells, tissues and organs; and

WHEREAS, The flow of mental impulses between the brain and the body passes through the vertebrae of the spinal column; and

WHEREAS, Blockages of mental impulses, called vertebral subluxations, occur when a vertebra misaligns, occludes an opening, impinges on a nerve or otherwise interferes with neurotransmission; and

WHEREAS, A vertebral subluxation can occur regardless of the presence or absence of symptoms; and

WHEREAS, Doctors of chiropractic are the licensed professionals uniquely trained to locate, analyze and correct vertebral subluxations that compromise a person’s health and well-being; therefore be it

RESOLVED, That the Senate commend the Chiropractic Fellowship of Pennsylvania for its efforts in educating the public about the importance of having spinal checks for vertebral subluxations; and be it further

RESOLVED, That the Senate recognize the month of September 2011 as “Vertebral Subluxation Awareness Month” in Pennsylvania.

Whereas, I suppose we can be thankful that the Pennsylvania Senate limited “Vertebral Subluxation Awareness Month” to a single month in a single year and hope this does not become an annual event.

While Resolution 195 gave chiropractors something to frame and hang in their waiting rooms, it does not give chiropractors any authority they don’t already possess to foist implausible and unproven health care practices onto the unsuspecting public. Unfortunately, the same cannot be said of other CAM matters currently (or soon to be) pending before state legislatures.

Wisconsin woo

During its 2011–2012 regular session, the Wisconsin Legislature has the opportunity to follow in the footsteps of New Mexico, Minnesota and Rhode Island, and become another state where anyone can practice medicine. Senate Bill 280 would allow anyone to provide a complementary and alternative health service (“CAHS”), which is broadly defined as

any health care practice or method or healing therapy or modality that is not prohibited under [a certain section of the proposed bill, described below] and that is provided by an individual who is not a health care provider or who is a health care provider but is not acting under his or her certificate, permit, or license as a health care provider.

The bill removes the prohibition against the unlawful practice of medicine and surgery, nursing, dentistry, respiratory care, physical therapy, podiatry, psychology, pharmacy, and 18 other professions and occupations for which a license, certificate or permit is required by law, as long as the CAHS provider does not do any of the following:

  • Puncture the skin, except by pricking a finger for purposes of blood screening.
  • Prescribe or administer X-ray services.
  • Prescribe, directly apply, deliver, or dispense prescription drugs or devices that can be used legally only by a health care provider.
  • Perform chiropractic adjustment or manipulation.
  • Recommend to the person receiving the CAHS (at least they don’t call him or her a “patient”) that he or she discontinue treatment prescribed by a health care provider.
  • “Make a specific diagnosis using a medical term that is commonly used and understood in conventional western medicine.”

That last one makes me wonder why CAHS providers are allowed to prick the finger for blood screening. What’s the purpose of blood screening if not a conventional western medicine diagnosis? But making sense is not this bill’s strong suit.

If a person suffers an injury as the result of a CAHS provider’s doing any of the prohibited acts enumerated above, he can sue to recover treble damages along with costs and attorneys fees. Which is cold comfort considering there is no malpractice or other insurance required (and no insurance company would likely write such policies even if it were required). Unless the CAHS provider just happens to be independently wealthy, no attorney is going to take the case anyway. Even multi-million-dollar judgment is worthless if you can’t collect on it.

Note that the right to sue is provided only if one is injured by the CAHS provider performing one of the acts prohibited by statute, but not if the poor person is injured by the hocus-pocus treatment itself. Thus, if the CAHS provider fries you with an X-ray, luckily you can sue for treble damages. But say he invents a non-conventional-western-medicine diagnosis and treats you with hocus-pocus. If it turns out you actually have a conventional-western-medicine-diagnosed cancer and your conventional-western-medicine treatment is delayed due to the course of hocus-pocus treatment, too bad! And what would you sue the CAHS provider for anyway? It’s not malpractice because there is no “practice,” no standard of care.

The drafters of this bill make it clear that CAHS providers are not prohibited from “use of medical terminology or common words to describe a health condition.” Let’s just pray they use the correct medical terminology and don’t get all confused by their lack of education and training in said terminology and what it means.

As well, CAHS providers can give “advice that the individual should consult a health care provider in order to rule out a diagnosable condition,” even though no education and training in recognizing any “diagnosable condition” is required, so how would the CAHS provider know that it needed to be ruled out? One just has to hope that perhaps the CAHS provider, or maybe a friend or relative, had the same “diagnosable condition” that you do and he remembers a few symptoms and connects them to the right “diagnosable condition” and suggests you see a real doctor. (And here I assume they mean “diagnosable conditions” of the conventional western medicine sort.)

This could prove to be a handy feature for the licensed health care provider who steps out of his role as such and into the role of a CAHS provider, free of the strictures of his professional education and training. This is actually permissible under the proposed legislation. Say, for example, an M.D. has chosen to add CAHS to his practice. If, in acting as a CAHS provider, he discovers a “diagnosable condition” needs to be ruled out, he can — viola! — switch back into a M.D. and proceed to employ his western medical diagnostic skills. At which point I assume he can either stay in M.D. mode and prescribe some western medical treatment or — Transformer-like — switch back into a CAHS provider and prescribe CAHS.

Another safety feature: the CAHS provider can legally tell you that your “symptoms may be indicative of or consistent with a specific medical condition,” even though he must leave you up in the air on this one because he can’t legally diagnose your “specific medical condition.” Of course, nothing prevents him from proceeding to treat you with his special brand of hocus-pocus for your “specific medical condition,” whether or not he has in fact stumbled upon a correct diagnosis of said condition, which he can’t tell you anyway. Or, he could possibly be completely wrong about your “specific medical condition,” in which case he would presumably be using the wrong hocus-pocus on you.

One small comfort in this proposed legislation: the CAHS provider must tell you, in writing, that he is about to defraud you and you must acknowledge that he has your permission to do so, also in writing. That is, he must tell you he is not a licensed health care provider, unless he is and is in CAHS provider mode, in which case the proposed legislation is unclear about what to do. He must also provide “a description of the complementary and alternative health service to be provided,” and his “education or other qualifications that relate to the service that is to be provided.” Note that he doesn’t have to have any actual education or “other qualifications,” but if he has them you get to know about it ahead of time.

It will be hard to top Wisconsin Senate Bill 280 for nonsense, but the year is young. To be complete, although they are not quite as full of it as SB 280, here are a few other proposals which may become law during 2012. Let’s hope not.

Vermont “Obamacare”

During 2012, as the mandatory health insurance coverage provisions of the federal Affordable Health Care Act come into play, complementary and alternative providers will be attempting to wrest a piece of the insurance dollar pie from M.D.s, D.O.s, nurse practitioners and other health care providers via state legislation.

In Vermont, Senate Bill 209 seeks to accomplish this by declaiming that naturopaths are primary care physicians. Primary care is currently defined by Vermont law as

health services provided by health care professionals specifically trained for and skilled in first-contact and continuing care for individuals with signs, symptoms, or health concerns, not limited by problem origin, organ system, or diagnosis, and shall include prenatal care and the treatment of mental illness.

Apparently the bill’s sponsors are aware that naturopathy would not necessarily meet this definition, broad as it may appear, so the bill specifically tacks on the phrase “and services provided by a naturopathic physician” at the end.

Just to make it clear, the bill also provides that “to the extent permitted under federal law” licensed naturopaths “may serve as a patient’s medical home” and that they “shall be authorized to work independently and shall not require supervision by any other health care professional.” And, for good measure, the bill requires the state to apply for funds to provide grants and loans to naturopaths for establishing electronic health records systems.

Florida’s big headache

Here in the Sunshine State, chiropractors are trying to add a bit of polish to their tarnished image by inserting themselves into new safety measures for young athletes suspected of suffering a concussion during play.

There are several versions of this proposed legislation circulating. All would require that young athletes be removed from play if suspected of having sustained a concussion and prevent their return to play without clearance by a physician. However, Senate Bill 948 is unique in including chiropractors among the type of physician who can clear the athlete for return to play. The bill also rather grandly establishes a “Sports Medicine Advisory Committee” including three M.D.s, three D.O.s, and, of course, three chiropractors. This is an effort to insinuate chiropractors among the medical professionals who cover youth athletics, with its attendant implication that chiropractors are qualified to be “sports medicine” experts.

The thought of a chiropractor diagnosing, treating, and then returning to play a young athlete suffering a concussion frankly gives me a headache. I suppose, given their belief that just about anything can cause the non-existent “vertebral subluxation” (or joint dysfunction, or manipulable lesion, or one of the many other names they call this putative condition), subluxations are an inevitable by-product of any trauma sufficient to cause a concussion. Thus, the subluxation detection and correction possibilities for the concussed youth are both numerous and guaranteed.

Arizona health care providers busted

Finally, although not exclusively concerned with CAM providers, Arizona House Bill 2035 deserves a mention. Apparently, the Arizona Legislature wants to sniff out exactly who has been inappropriately recommending medical marijuana to patients. Toward this end, the bill would require the boards governing medical and osteopathic practice, as well “The Naturopathic Physicians Medical Board” and “The Board of Homeopathic and Integrated Medicine Examiners” to submit an annual report informing the governor and various other officials of the number of unprofessional conduct complaints about, and investigations conducted of, “suspected unprofessional conduct that relate[s] to medical marijuana recommendations” made by health care providers. If this bill passes, I’ll be keeping tabs on the annual report to see just which type of health care provider is (per capita) getting the most patients stoned. Stay tuned.

Petitioning for redress of your grievances

Unfortunately, there is too often no organized opposition to legislative alchemy. Sometimes the state medical societies will get involved but they cannot be relied upon to oppose every attempt to spread CAM. This leaves the door open to a few proponents leading an entire legislature in creating new laws making nonsense legal.

I urge SBM readers to become part of the solution by keeping up with proposed CAM legislation in your state and letting your state representatives know of your opposition. The cynical among you will protest that this is futile, but don’t be so sure.  Linda Rosa, RN and Larry Sarner in Colorado, Rosemary Jacobs in Vermont, and Rita Swan in many states, have virtually single-handedly prevented the spread of legislative alchemy, or are at work doing so now.  SBM’s own Kimball Atwood, M.D., has held off the naturopaths in Massachusetts though his dogged efforts. (See here for references to his collected works on naturopathy.) You don’t have to be involved on this scale, but you can at least write a letter, send an e-mail or make a phone call.  And to get you started, here’s a website with links to your state’s legislature’s website.  From there, you can figure out if legislative alchemy is brewing in your area and do something about it.

 

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

Leave a Comment (14) ↓

14 thoughts on “Legislative Alchemy: The New Year

  1. rbnigh says:

    Didn’t a major chiropractors association tell their members to drop the idea of subluxation?

  2. rbnigh says:

    Sorry, I just found Sam Homola’s post where my question is answered

  3. DevoutCatalyst says:

    I sheepishly admit to living in Wisconsin, apparently one of the stupidest places in the union.

    “This bill allows a person who provides a complimentary and alternative health
    service (CAHS provider) to practice any of the above activities without a license as
    long as they do not do any of the following:

    5. Recommend that a patient discontinue treatment that is prescribed by a
    licensed health care provider.”

    But #5 is what CAM is all about, instilling doubts about real medicine into people and funneling them into the something other that they will sell you.

    Conspicuously absent from the Wisconsin bill is massage therapy, where in Wisconsin, in recent memory, it was made against the law to practice massage without a license — the goose that laid the golden egg that jacked up rates that lonely people must now pay to get laid on by hands.

  4. Scott says:

    Recommend to the person receiving the CAHS (at least they don’t call him or her a “patient”) that he or she discontinue treatment prescribed by a health care provider.

    “The treatment your MD has prescribed for you is useless and harmful. But I don’t recommend that you stop.”

    I can’t shake the suspicion that this would be perfectly legal. Maybe the courts would be reasonable enough to infer that a pro forma disclaimer of recommendation wouldn’t be sufficient to make the first sentence not a de facto recommendation. But I wouldn’t count on it, particularly since the predictable comeback headline would be

    Courts violate First Amendment by forbidding criticism of western medicine

    I wouldn’t be surprised if those more creative than myself could come up with similar ways to get around the other limitations.

    On a slightly different note, I find it hilarious that one group of quacks gets special protection against having any other quack mimic their particular woo.

  5. “Make a specific diagnosis using a medical term that is commonly used and understood in conventional western medicine.”

    Is that legally a logical “AND” requiring both conditions to be met?
    Can I make a specific diagnosis using terms uncommonly used but understood in western medicine? What about using commonly used terms in ways not commonly understood? Does the bill define “conventional western medicine” anywhere?

    Apparently I can’t diagnose you with hypertension (which is a real phenomenon), but I can diagnose you with an imbalance of chi (which is nonexistent prescientific vitalism) or invent a new condition using novel concepts and terms and diagnose you with it. This line encourages sCAM providers to make stuff up. If the bill does not prohibit anyone for the use of medical terminology or common words to describe a health condition, presumably I can diagnose you with blocked chi, and then explain that this causes high blood pressure.

  6. Janet Camp says:

    I (sigh) also live in Wisconsin and find this truly embarrassing. I’d write more but I can’t use my right hand as yesterday I submitted to “conventional western medicine” and had my wrist operated on for carpal tunnel. I agreed to this in spite of at least three offers to try various forms of woo including yoga (which now seems to cure everything, in spite of reports to the contrary, as reported in the NYT and elsewhere, yesterday.

    I will do what I can, but I’m pretty busy with the effort to recall the Governor.

  7. PJLandis says:

    Disheartened to see PA on the list and I will be writing my reps, as well as the Bar Association.

  8. kathy says:

    Jann said: “As well, CAHS providers can give “advice that the individual should consult a health care provider in order to rule out a diagnosable condition,” even though no education and training in recognizing any “diagnosable condition” is required, so how would the CAHS provider know that it needed to be ruled out? ”

    Seems that they don’t recognise many medical conditions, using “recognise” in both senses of the word:

    Recognise in the sense of realising what medical condition is occurring, and recognise in the sense of admitting that it is a real genuine condition that needs real genuine treatment not their brand of woo.

    Realisation: I remember hearing some bangs late one night and thinking, “Someone’s playing with firecrackers, or else it’s a car backfiring”. My ignorance … in the papers next day I saw someone living near me had been shot. Luckily no action was required from me, so my ignorance didn’t matter, but it would have been different had I been a qualified police officer. A licenced medic has the responsibility for the diagnoses he/she gives. But a homeopath? Naturopath? So much of their “diagnosis” is based on error, just as my “daignosis” of the cause of the bangs was based on error.

    Admittion of incapacity: ah, now, I don’t see a chiropracter, homeopath or reiki master admitting he/she can’t do anything for you and sending you off to a despised medical doctor. Can you see it happening? They believe that Big Medicine/Big Pharma are the root of all evil. They’ll keep on and on trying till you either loose patience and go yourself, or run out of money. Or die, to paint the most dismal possible picture!

  9. Zetetic says:

    “What’s the purpose of blood screening if not a conventional western medicine diagnosis?”

    Alties do live cell analysis!

  10. mattyp says:

    @Kathy:
    I hate to disappoint you, but at Macquarie University in Sydney Australia, that is exactly what we are trained to do: recognise those cases (both medical and musculoskeletal) that do not belong in our scope of practice and refer. Now, two points: Macquarie graduates are trained extensively in anatomy, physiology, biochemistry, pathology, diagnosis, orthopaedics, neurology, radio graphic technique, diagnostic image interpretation (called radiology, but we are by no means radiographers). For the last five to ten years the program has also leaned heavily on research; both how to interpret decent research and how to undertake it. The emphasis my time that I have been studying is “evidence based practice”. Not only that, but we are also taught the evils of “cherry picking” data from studies to suit our end goal.
    I write this not because I am offended when people take pot shots at my profession (bit hard for me to get upset, honwstly), but to give people an idea that there are some progressive schools there.
    Incidentally, subluxation is taught, but it is by no means an accepted term in the majority of the school. It is more a relic term to help new chiros understand the history, and communicate with the older generation of both practitioner and patient.
    Cheers,
    Matthew

  11. DC24 says:

    @Jann While reading this post and learning about your discontent with the “implausible and unproven diagnostic methods” I felt inclined to inform you of your ignorance about the Chiropractic Profession. As a Doctor of Chiropractic I feel that there is much confusion about the profession. Lets start with “Subluxation” I personally hate the word. At the Chiropractic Institution I attended it was a word that was dismissed due to its lack of evidence supporting the theory. Jann I am curious as to what Chiropractic Colleges in the United States you have personally visited in the past year, two years or five years to really take a glimpse behind the scenes as to what is being taught. So Jann how many? CRICKETS?

    While studying to obtain a Doctorate in Chiropractic a student in Chiropractic College will take 456 Hours of Anatomy/Embryology, 408 Hours of Diagnosis, 271 Hours of Radiology and 168 Hours of Orthopedics ranging from Management and Evaluation of the Cervical Spine to on field Emergency Procedures.

    Although there are some Chiropractors out there that are certainly off track we as a profession are trying to push for furthering of evidence based care in order to help our patients using a variety of diagnostic, treatment and rehabilitative services. If you do a search on Pubmed to look at research that is being done about Chiropractic currently I think you will be surprised at how much effort is being put forward to the progress of Chiropractic as a profession. This is EXACTLY why you are seeing more Chiropractors being involved with on field sports management and in the hospital setting. Currently every single NFL team has at least one official team chiropractor and within 2 years every VA hospital in the United States will Employ a Doctor of Chiropractic as part of their health care team. Did you know that?

    Please do some research, talk to some local Chiropractors, visit a Chiropractic College and don’t define a profession based on a few old school claims that are certainly not taught in school presently and judge a profession on a few individuals that are not following evidence based practice. Having a background in Law Jann where would your profession be if I judged you based on the bad apples that I have encountered?

  12. Cowy1 says:

    “456 Hours of Anatomy/Embryology, 408 Hours of Diagnosis, 271 Hours of Radiology and 168 Hours of Orthopedics ranging from Management and Evaluation of the Cervical Spine to on field Emergency Procedures.”

    You aren’t qualified to manage even the simplest of presentations because your comically limited (preclinical and clinical) training; students at Palmer have to actively solicit the local homeless population to come into their “clinic” so they can actually see enough (fake) patients (something around 25 H&Ps) to graduate. For comparison’s sake, in a busy week at Stroger I’ve done 30 H&Ps (on real, honest-to-allah, patients).

    “on field Emergency Procedures”. Doing them on a plastic dummy doesn’t count buddy.

    Maybe if there were actual standards for entry beyond not having a felony conviction for child pornography, some science-based standard for what is taught, actual clinical rotations with real patients and formalized residency training programs with, again, real patients that you didn’t have to pay to show up then maybe you’d be qualified to evaluate patients independently but, since you don’t have those things, you aren’t.

    As it stands, there is not a single chiropracty school in the United States that is not a wretched hive of quackery. So sorry.

  13. Cowy1 says:

    “Currently every single NFL team has at least one official team chiropractor”. This is one of my favorite chiropractic fallacies, that because professional athletes use them we should too!

    Undoubtedly, professional athletes also use crack and prostitutes at a higher rate than the general population; shall we incorporate those under the healthcare umbrella as well?

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