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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

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