The Quack Full Employment Act

Quacks, charlatans and snake oil salesmen are closely watching “The Colorado Natural Health Consumer Protection Act,” Senate Bill 13-215 (SB 215) as it wends its way through the Colorado Legislature. I imagine a few felons about to be released from prison are keeping tabs on the bill too, for reasons we’ll get to in a minute. SB 215 passed the Senate on Tuesday. It will now go on to the House, where it has the support of Rep. Joann Ginal, the mover and shaker behind a bill giving “naturopathic doctors” a right to practice, House Bill 13-1111 (HB 1111). That bill passed the House and is now parked in the Senate awaiting committee assignment.  Apparently, critical thinking skills have abandoned the state capital. Things are looking grim.

If the “Colorado Natural Health Consumer Protection Act” passes, Colorado will become one of a handful of states where anyone can practice medicine. Of course, these laws don’t come out and say that exactly. In fact, the Colorado bill states that if you don’t have a medical license you cannot practice medicine, which in Colorado is defined to include:

Holding out one’s self to the public within this state as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, telemedicine, the interpretation of tests, including primary diagnosis of pathology specimens, images, or photographs, or any physical, mechanical, or other means whatsoever; . . . Suggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition, or defect of any person . . .

But, as we shall see, what SB 215 actually does is allow rank amateurs to diagnose and treat just about anyone for any disease or condition with means of no known safety or effectiveness. In other words, they can practice medicine, it’s just quack medicine. At the same time, the bill strips away important consumer protections. And guess who’s supporting it? The Colorado Medical Society, although I suppose we can be disappointed but not surprised. The Colorado Chapter of the American Academy of Pediatrics is remaining neutral. As I said, critical thinking skills have decamped from Denver.

Pay attention folks. Passage of this bill will energize the Health Freedom crowd. They’ll be in your state soon.

Why is the legislature doing this?

Let’s begin at the beginning, with a look at the legislative findings. Such findings are often set forth at the beginning of a bill to explain the legislature’s purported reasons for the law’s necessity. Legislative findings are supposedly based on facts but, in my experience, all too often they are no more than a bit of political theater. True to the tradition, SB 215’s legislative findings are pretty much fact-free.

First, the bill’s draftsmen trot out the shop-worn “complementary and alternative medicine (CAM) is popular” gambit. For this they rely on the 2007 survey by Barnes et al. As we have discussed many times before on SBM, by suddenly transforming such conventional practices as diet, relaxation and exercise into CAM, the survey was able to make it look like CAM use is much greater than it actually is. That is, of course, if anyone could really define “CAM” in the first place. Even the National Center for Complementary and Alternative Medicine (NCCAM), itself cited in the legislative findings, admits it’s hard-pressed to define this amorphous and ever-changing category.

Second, from this survey they extrapolate that 1.5 million Coloradans “currently receive a substantial volume of health care services” from CAM practitioners, a conclusion actually contradicted by the survey they rely upon. The overwhelming majority of health care expenditures for CAM is for self-care, such as buying off-the-shelf products like as fish oil supplements. Less than two percent of consumers use a type of CAM that requires seeing a practitioner currently unlicensed in Colorado.

Third, the bill claims that CAM practitioners “are not regulated by the state.” Again, not true. According to the survey, the most commonly visited CAM practitioners are chiropractors, osteopaths and massage therapists, all of whom are regulated by the State of Colorado. (Of course, this also demonstrates another flaw in the survey — counting all visits to massage therapists and to chiropractors and osteopaths for manipulation as CAM, another error that inflates the numbers.) Acupuncturists are also licensed.

Finally, the legislature finds that CAM “practices do not pose an imminent and discernable [sic] risk of significant harm to public health and safety.” Or, in other words: “What’s the harm?” And whoever drafted this bill should check with the Colorado Attorney General on the extent of the state’s constitutional power to regulate for the health, safety and welfare of its citizens. The risk of harm needn’t rise to “imminent and discernible” for the state to step in and protect the public. And apparently, they didn’t thoroughly review the NCCAM website in cherry-picking their legislative findings. If they had, they would find, in NCCAM’s own words, “the safety and effectiveness of many CAM therapies are uncertain.” Others are actually known to be dangerous or ineffective or both. Or maybe they did review the website but they just don’t care.

What will an unlicensed CAM practitioner be able to do?

Under current law, an unlicensed CAM practitioner is subject to prosecution if they do anything that requires a license to practice medicine. This bill creates a “safe harbor” from prosecution if the unlicensed practitioner follows certain rules. And who is eligible for this protection as an unlicensed practitioner? Pretty much anyone who isn’t a licensed health care practitioner and wants to call himself (or herself) a CAM practitioner, a point we’ll return to shortly. But first, let’s look at what they can do. In other words, how is “CAM” defined in the bill? It is

advice and therapy services . . . within the broad domain of health care and healing arts therapies and methods that are based on complementary and alternative theories of health and wellness. . . [These] include healing practices using food; food extracts; dietary supplements [as defined in DSHEA] including vitamins, herbs, minerals, and enzymes; nutrients; homeopathic remedies and preparations; . . . the physical forces of heat, cold, water, touch, sound, and light; stress reduction healing practices; and mind-body and energetic healing practices.

The CAM practitioner cannot practice massage therapy, but can employ

stroking of the hands, feet, or ears; or . . . the use of touch, words, and directed movement of a health art within the bodywork community, including healing touch, mind-body centering, orthobionomy, reflexology, rolfing, reiki, qigong and practices with the primary purpose of affecting energy systems of the human body.

If the practitioner has “board certification” from the International Association of Colon Hydrotherapy or the National Board for Colon Hydrotherapy he can perform enemas or colonic irrigation.

My interpretation is that this definition permits every form of quackery I’ve ever heard of and some that will be invented.  And one I had never heard of: “ortho-bionomy.” In fact, CAM is limited only by the imagination of anyone who can fit what he dreams up into this broad and fuzzy list. I predict the word “quantum” will be getting a real workout in Colorado. Personally, I would go for the “mind-body and energetic healing practices” category if I were setting out as an unlicensed practitioner. Almost unlimited opportunities there. Of course homeopathy is tempting because you would get to sell little bottles of water at extravagant prices to the unsuspecting public.

What are they prohibited from doing?

Let’s now turn to what unlicensed practitioners are prohibited from doing under SB 215. Then we’ll look to a few hoops they must jump through before they get to do whatever it is they choose to do.

These are the things unlicensed practitioners cannot do:

The CAM practitioner cannot perform surgery and certain other invasive procedures, prescribe or administer drugs or certain medical devices, set fractures, provide chiropractic “adjustments,” practice dentistry, use or prescribe radiation, use spinal anesthetics (topical anesthetics are permitted), or use “invasive” laser devices. The practitioner cannot provide a “conventional medical disease diagnosis” although an “unconventional” diagnosis or diagnosis of a condition other than a disease is apparently permitted. They cannot “recommend the discontinuation of a course of care, including a prescription drug, prescribed by another health care professional.”

But what about ordering lab tests, that reliable means of finding “unconventional” diseases to treat with CAM, such as adrenal fatigue, chronic yeast overgrowth, chronic Lyme disease, toxicities, imagined vitamin and mineral deficiencies and so forth? While the bill doesn’t allow skin puncture, it doesn’t mention other types of tests. In any event, all the practitioner has to do is recommend that the “client” [which is what the bill calls consumers] visit a walk-in lab, such as Any Lab Test Now. There he will find a number of tests whose results might be catnip for quacks, such the “fatigue panel,” the “telomere test,” the “micronutrient test” and the “saliva hormone test.”

Who can a CAM practitioner treat?

The unlicensed practitioner can see just about anyone who walks in the door. They cannot “directly administer medical protocols to a pregnant woman or to a client  who has cancer.” I thought they couldn’t practice medicine at all, so I’m not sure what this means. In any event, they are apparently free to administer quack protocols to pregnant women and cancer patients.

They cannot treat a child under two without having informed consent of the parent, disclosing they are not licensed physicians, and recommending that the child “have a relationship with” a board-certified pediatrician. Of course, the parent is free to ignore this recommendation. Informed consent is an interesting requirement because it highlights the lack of a key consumer protection. A patient must give informed consent to any treatment by a medical doctor. Except for children under two, no informed consent is required for treatment by an unlicensed practitioner.

What must a CAM practitioner do to avoid prosecution?

There are a few things the unlicensed practitioner must do to avoid prosecution. The practitioner must tell the client the nature of the CAM health care services to be provided, that the practitioner is not licensed, whether he has liability insurance (I’ll wager he doesn’t) and any degrees, training, experience, credentials or other qualifications the practitioner has. The latter is small comfort as the many on-line certificates and do-nothing degrees available can fill the walls of even the most dim-witted practitioner. All of this must be reduced to writing and signed by the client. This statement must advise the client that he should discuss any recommendations made by the CAM practitioner with his PCP or certain other board-certified specialty physicians. (Be prepared for some doozies, you Colorado physicians!)

Who can become a CAM practitioner?

So what are the qualifications for becoming an unlicensed CAM practitioner? Next to none. Just about anyone can do it. The only exceptions are licensed (or registered or certified) health care providers whose licenses are suspended and the mentally incompetent. Also excluded are felons who have “not satisfied the terms of the sentence imposed for the crime.” But as soon as they walk out of prison or complete parole, convicted felons can go straight into practice as a CAM practitioner. This could prove a solution for the seemingly intractable problem of chronic unemployment among convicted felons. Plus, those convicted of financial crimes are often excellent flim-flammers. And how about allowing those convicted of sexual assault and child molestation “to stroke the hands, feet, or ears or . . . the use of touch”? Excellent idea!

Consumer Protection? What consumer protection?

Under current Colorado law, unlicensed practitioners of complementary and alternative health care are subject to prosecution for the unlicensed practice of medicine. This bill provides a “safe harbor” from prosecution if the unlicensed practitioner follows certain rules. Thus, consumer protection is decreased by removing some conduct — no matter how egregious — from the reach of prosecution. For example, if a homeopath did a homeopathic diagnostic workup on a Coloradan and sold her homeopathic remedies as a “cure,” the homeopath has likely engaged in the unlicensed practice of medicine. If this bill becomes law, as long as the homeopath otherwise complies with the rules, the homeopath can diagnose and prescribe homeopathic remedies with impunity. And no matter how much public harm he may be causing, the medical board can do absolutely nothing about it. In addition, the bill also provides that unlicensed practitioners who don’t follow the rules violate the Colorado Consumer Protections Act (CCPA). But the CCPA already protects consumers for most of the conduct permitted by the bill. So here the bill adds nothing the consumer doesn’t already have.

An injured person can still sue a CAM practitioner for negligence if the bill passes. But what exactly would constitute negligence? All persons owe a duty to others to act reasonably in any particular circumstance. In a negligence case, an injured party must show that the person causing harm breached that duty in some manner. So how would the plaintiff show that the CAM practitioner breached this duty of care? For licensed health care practitioners, such as a medical doctor, the duty of care is established by a standard of care, or what a prudent practitioner would do in the same or similar circumstances. If the practitioner falls below that standard, he commits malpractice. But since there is no standard of care for the unlicensed CAM practitioner, how would one establish the breach of duty necessary to succeed in a negligence case?

That would leave the plaintiff with a run-of-the-mill reasonable person standard. But wait – the legislature has specifically said that these CAM practitioners can practice homeopathy and other such nonsense and they have no obligation to provide informed consent and no obligation to refer to a physician (merely “to discuss” the CAM practitioner’s recommendations with one’s physician). They aren’t educated and trained to diagnose medical conditions and, in fact, are forbidden from “conventional” medical diagnoses, so how would they recognize the need to refer in the first place? (In contrast, for example, a chiropractor has a duty to refer to a medical doctor for any disease or condition beyond his scope of practice or ability to treat. He would also have liability insurance to compensate for injuries if he fails to do so. CAM practitioners do not.) Apparently, then, an unlicensed practitioner could get off scot-free for failing to refer a person desperately in need of medical care in any case where a “reasonable person” would not recognize the danger. If you aren’t a licensed health care provider, do you know which headaches signal danger and which ones don’t? How about back pain? Stomach aches? Coughing? Chest pains? No? Well, neither do they.

Just how bad is it?

Let’s put this all together and see just what would happen should this bill become law. Virtually anyone can set up shop without any education or training in health care whatsoever, or a worthless on-line certificate if they prefer, and practice complementary and alternative “health care and healing arts therapies and methods.” They can see anyone who walks in the door, no matter how sick. They can provide any unconventional disease diagnosis they want, including making up diseases and conditions that don’t exist. CAM practitioners can then proceed to practice virtually any “healing arts therapies and methods” they can dream up, including recommending various nostrums that they then sell to the consumer. They have no duty to provide informed consent, no education and training in recognizing the need to refer to a physician and no duty to refer to a physician. And even if the CAM practitioner is injuring his “clients” right and left, the medical board must sit on its hands and do nothing as long as the CAM practitioner complies with a few rules. The board has no authority whatsoever to step in and stop it. Unlike every licensed health care professional in Colorado, who must answer to a regulatory authority, the unlicensed practitioner answers to no one.

The injured clients could sue for negligence. But even if they could overcome the substantial obstacles I’ve already mentioned, CAM practitioners don’t have to carry liability insurance. And, rest assured, few (perhaps no) plaintiff’s attorney is going to take one of these cases unless the practitioner has substantial assets to pay any judgment against him and therefore the attorney’s fees and costs.

Natural Health Care Consumer Protection? Hardly. It’s the Quack Full Employment Act.

Author’s Note: Linda Rosa, RN, and Larry Sarner have worked tirelessly to defeat SB 225 and HB 1111, on their own time and with their own money. Whatever happens in Colorado, we owe them a great deal of gratitude for getting in there and fighting to defend science-based medicine. We could all learn a lesson from their example.

Posted in: Energy Medicine, Health Fraud, Herbs & Supplements, Homeopathy, Legal, Naturopathy, Politics and Regulation

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