Legislative Alchemy

Legislative Alchemy

Legislative Alchemy is the process by which state legislatures transform pseudoscience and quackery into licensed health care practices. By legislative fiat, chiropractors can detect and correct non-existent subluxations, naturopaths can diagnose (with bogus tests) and treat (with useless dietary supplements and homeopathy) fabricated diseases like “adrenal fatigue” and “chronic yeast overgrowth,” and acupuncturists can unblock mythical impediments to the equally mythical “qi” by sticking people with needles. In sum, by passing chiropractic, naturopathic, acupuncture, and Traditional Chinese Medicine (TCM) practice acts, states license what are essentially fraudulent health care practices and give them an undeserved imprimatur of legitimacy.

Only 6 of the 50 state legislatures are in regular session now. Many have ended two-year (2015-2016) consecutive sessions in which legislation from one year carries over into the next. The Texas, Montana, and North Dakota legislatures didn’t meet at all in 2016.

During 2015-2016, over a dozen naturopathic licensing or registration bills and at least 15 naturopathic practice expansion bills were introduced. (In some states, companion bills were introduced in each house. These were counted as one bill.) At least 19 chiropractic practice expansion bills were introduced in the same period. Four acupuncture/TCM practice acts were introduced, as were 14 practice expansion bills. This count does not include bills trying to force public and private insurers to cover CAM practitioner services.

At the beginning of this year, we reported on how naturopaths, chiropractors and acupuncturists fared in 2015 (not all that well, actually), noting that a number of bills remained pending in the second of the two-year period in some states. Now that most legislatures have shut the doors until 2017, it’s a good time to update that report.

Acupuncture and TCM

Acupuncturists nailed another state – Kansas – in their quest for licensure in all 50 states. (They added North Dakota just last year, although with a fairly narrow scope of practice.) The new law defines acupuncture as the use of needles and “related modalities” for

assessment, evaluation, prevention, treatment or correction of any abnormal physiology or pain by means of controlling and regulating the flow and balance of energy . . . and stimulating the body to restore itself.

Since physiology is

a branch of biology that deals with the functions and activities of life or of living matter (as organs, tissues, or cells) and of the physical and chemical phenomena involved

it appears the Kansas legislature has granted the acupuncturists an extremely broad scope of practice. One wonders exactly what patient complaint couldn’t be shoehorned into the “abnormal physiology” category.

Gina Halsey, a Lawrence, Kansas, acupuncturist who believes her irregular heartbeat was cured by acupuncture, pushed the bill as a public safety measure, emphasizing the education and training requirements. According to Halsey,

Sometimes people will use (acupuncture) in conjunction with medicine and sometimes people try it before resorting to a medication that has other side effects, and it’s just wonderful for that . . .

Frankly, the public has a lot more to worry about, safety-wise, from practitioners who think the body’s physiology can be affected by sticking a patient with needles, that acupuncture is effective for irregular heartbeat and that it is a reasonable alternative to medication. Halsey’s overblown claims for acupuncture demonstrate the disregard for science and evidence this ballyhooed education and training produce. Her website lists conditions she says she “regularly treats with great success:” herpes, “yeast,” incontinence, IBS, infertility, uterine fibroids, Bell’s palsy, MS, paralysis, stroke sequela, asthma, depression and psoriasis, among others. In fact, acupuncture is effective for none of those, or anything at all, for that matter. Fortunately, the new law requires acupuncturists to carry malpractice insurance.

In addition to traditional needle acupuncture, Kansas practitioners will be able to employ a number of other unproven methods, like “auricular detox,” magnetic and electromagnetic treatments, and cupping. They can also dispense unproven, often contaminated, and potentially dangerous herbal remedies and dietary supplements, which will be a real boon to their bottom lines.

In the past two years, acupuncturists have gotten substantial scope of practice expansion bills passed in Delaware, New York, and Rhode Island. This year, Delaware added the practice of “Eastern Medicine” to its acupuncture practice act, defined as

the practice of acupuncture, Chinese herbology and Asian bodywork therapy as part of a comprehensive health care system encompassing a variety of traditional health care therapies that have been used for more than 3,000 years to diagnose and treat illness, prevent disease and improve well-being.

Of course, “used for” is not synonymous with “is effective for.” Practitioners can make recommendations based on “eastern dietary therapy,” supplements and lifestyle and offer “nonfraudulent” information about herbs, vitamins, amino acids, carbs, sugars, enzymes, food concentrates, and dietary supplements. It’s always a wonder how acupuncturists and the like bootstrap themselves into legitimacy with the argument that their methods are “thousands” of years old, then tack on all sorts of stuff that the ancients either had no idea existed (amino acids, enzymes) or didn’t exist “thousands” of years ago (dietary supplements, food concentrates). The new law uses a criminal standard for fraud (“intentional misrepresentation for financial gain”), rather than a civil standard, which can encompass simply ignoring reality for financial gain, a key feature of acupuncture. It also says that

legitimate disagreement about the role of the above-listed nutrients and foods as they apply to human nutrition shall not, in and of itself, constitute fraud.

It will be interesting to see how the courts deal with this one. Does “legitimate disagreement” mean “legitimate scientific disagreement about the evidence” or does it enshrine into law the post-modern mantra that science “doesn’t know everything” and that myth is of equal validity as a basis for healthcare decision-making?

Similarly, Rhode Island added the practice of “Oriental medicine” to its acupuncture practice act last year, defining it as a form of “primary health care” using Chinese medical and acupuncture diagnostics, including those based on “newer scientific models” for “assessment, treatment, prevention or cure of any disease.” This year, the Rhode Island legislature gifted acupuncturists with self-regulation, creating a Board of Acupuncture and Oriental Medicine. The state also has a new law allowing chemical dependency professionals to use “auricular acudetox,” or ear acupuncture, which is based on the “understanding”

that the external ear represents all parts of the human body, including the internal organs, and provides acupuncture points corresponding to these parts. Auricular acupuncture therapy was discovered by Dr. Paul Nogier based on observations that backaches were cured after the patient received a burn on their ear. Dr. Nogier pictured an auricle as a fetus that was curled up and upside down; he used his anatomical knowledge to treat diseases by applying pressure to the reaction points that represent the internal organs.

How auricular acupressure "works."

We have an opioid crisis in the U.S. and the state of Rhode Island wants to abandon the addicted to magical thinking.

New York also expanded the acupuncturists’ scope of practice. They may now recommend “traditional remedies and supplements,” and, with additional training, custom-made remedies and herbal formulations. (As of this writing, the Governor has not signed this legislation, but there is no indication he will veto it.)

Naturopathy

Naturopathic licensing and practice expansion bills have all failed so far in 2016, but important legislation remains in play. New York (for the eighth consecutive legislative session), Rhode Island (for the fifth time), North Carolina (for the seventh time), and Mississippi (for the second time), all rejected naturopathic licensing efforts in 2016. A resolution was introduced in the Indiana House asking that a study committee look into naturopathic licensing but that went nowhere too.

Licensing bills are still alive in Michigan, Massachusetts (where a bill passed in the Senate), Pennsylvania (where a bill passed in the House), and New Jersey (where bills carry over into 2017). All of these states have rejected licensing efforts in the past but, with money from dietary supplement and diagnostic testing companies now backing their lobbyists, the umpteenth time may be the charm. Each of the pending bills would give naturopaths a broad scope of practice, similar to that of a family practice physician. All would allow a naturopath to diagnose (including the use of diagnostic testing) and treat any patient of any age with any disease or condition. Only the means of doing so, consisting in the main of unproven or disproven remedies like dietary supplements and homeopathy, would be limited.

Fortuitously, naturopaths have recently endured a spate of publicity that presents a picture of naturopathy at odds with their PR. In addition to the revelation that they are accepting supplement and testing company money for lobbying, as well as for other operations, Britt Hermes’s outing their dirty laundry (and their despicable attacks on her), as well as the media reports surrounding the possible role of a naturopath in the death of a Canadian toddler,  have countered their party line that they are all sweetness and light. Far from being the primary care physicians they claim they are, media reports (also here and here) have highlighted their quacky practices and insular group-think that prohibits honest inquiry into their shortcomings.

Practice expansion efforts also faltered this year. The only success so far is in Maryland. There, legislation established a formulary committee operating under the auspices of the Maryland Board of Physicians, which regulates naturopathic practice. The formulary can, but does not have to, include prescription drugs, although no controlled substances are permitted. In Connecticut, a bill passed allowing, but not requiring, the Commissioner of Public Health to establish a commission to look into naturopathic prescribing privileges. This legislation, as originally drafted, created a tiered naturopathic licensing system, with “advanced practice naturopathic care” being at the top of the heap. With only 45 hours of drug pharmacology education, plus 15 hours of continuing education a year, an “advanced practice” naturopath could prescribe drugs approved by the State Board of Naturopathic Examiners. Fortunately, that provision was dropped.

Vermont naturopaths wanted self-regulation by a Board of Naturopathic Physicians but didn’t get it from their legislature and remain under the regulatory authority of the Director of the Office of Professional Regulation. More interestingly, though, buried deep in House Bill 562, which passed and has been signed by the Governor, is another provision affecting Vermont naturopaths. Vermont previously passed a law requiring naturopaths with prescription privileges to pass a pharmacology exam by July 1, 2016, in order to retain those privileges. That deadline was extended by HB 562 until July 1, 2017. One cannot avoid the sneaking suspicion this is necessary because not enough of them could pass, or perhaps none could pass, by the deadline. I wrote the Office of Professional Regulation weeks ago for more information, such as the pass/fail rate for the exam, but have yet to get a reply.

Expansion of prescription privileges is still a possibility in California, although the bill as it now stands substantially whittled away what naturopaths originally hoped for, which was to be out from under the supervision of MDs/DOs when prescribing controlled substances. The original version of Senate Bill 538 would have allowed naturopaths to order, prescribe and administer Schedule III through Schedule V drugs with no MD or DO supervision. As amended, naturopaths would be limited to Schedule V drugs and certain other prescription drugs. Naturopathic practice could include Schedule III – IV drugs only under the supervision of an MD or DO and according to standardized procedures or protocols, including specifying which drugs can be used. As well, naturopaths must have additional coursework in pharmacology if they wish to expand their prescribing privileges. For Schedule III drugs, protocols must be patient-specific. The Naturopathic Medicine Committee of the Osteopathic Medical Board, which regulates naturopathic practice, may establish regulations regarding ocular or intravenous routes of administration, although apparently it is not required to do so. Provisions allowing more liberal diagnostic testing privileges, minor office surgery and parenteral administration were also removed. Disappointingly, the AARP supported this bill.

Elsewhere, expansion of prescribing privileges failed in Washington and Hawaii. Naturopaths also revived a dead bill which would have allowed them to corner the colon hydrotherapy market in Hawaii, but that ran out of steam as well. In California and Oregon, respectively, naturopaths and chiropractors sought the authority to perform school physicals for athletes and to return them to play after a concussion. Neither passed.

Chiropractic

Chiropractors are licensed in all 50 states, so their legislative efforts focus on practice expansion and mandated insurance coverage. In several states, chiropractors are trying to create what appears to be a sort of chiropractic naturopath, or maybe a naturopathic chiropractor, all in service of rebranding chiropractors as primary care physicians.

We’ve followed these efforts in New Mexico over the last few years, where chiropractors have managed to get limited prescription privileges, although further expansion was rejected last year by the NM legislature. Legislation in Arizona that would have permitted chiropractors “certified in pharmacology” to prescribe certain drugs failed as well in 2015.

The Ohio House passed a bill allowing chiropractors to sell vitamins, minerals, antioxidants, enzymes, glandulars, homeopathic remedies, non-prescription drugs and other supplements and some medical equipment to patients “to restore or maintain” their health. That bill is now before the Senate Committee on State and Local Government.

The Ohio State Board of Chiropractic already takes a generous view of chiropractic scope of practice:

The practice of chiropractic will include and permit the use of such diagnostic and treatment procedures as are taught by board approved chiropractic colleges except as prohibited by law and/or the rules of this board.

So, as long as a diagnostic procedure or treatment procedure is taught in one of the chiropractic colleges, unless the Ohio Legislature or the Board specifically prohibits it, it’s legal. According to the Board, this means that Ohio chiropractors can use venipuncture, blood analysis, and urinalysis as diagnostic tools. Board-approved continuing education courses extend far beyond musculoskeletal conditions. Courses include:

Endocrine System: “Overview of all hormones with special focus on estrogen dominance, metabolic syndrome, adrenal fatigue.”

Nutritional Support for Chronic Fatigue Syndrome

Chiropractic and Pregnancy, including how to recommend homeopathic remedies and herbs for pregnant patients.

See what I mean? The naturopathic chiropractor primary care physician emerges as the latest chiropractic fantasy practice.

An Idaho bill took an even broader approach. It would have allowed chiropractors not only to sell dietary supplements and homeopathic remedies to patients, but also administer them enterally and transdermally. In addition, with 120 hours of classroom and clinical instruction, they could obtain a “certificate in clinical nutrition,” which would allow them to administer vitamins, minerals, homeopathic remedies, and the like using IV, IM, intra-articular, subcutaneous and sub-dermal routes. Fortunately, the bill never got out of committee.

A bill introduced in Hawaii went even further, by allowing chiropractors to call themselves “physicians” and defining chiropractic as

a portal of entry for consumers to obtain services from licensees whose practice includes all hygienic, sanitary, and therapeutic measures incident to humans.

Any diagnostic methods and treatments taught in an accredited chiropractic college would be permitted, except for legend drugs and surgery. Thankfully, the bill failed to meet a legislative deadline for further consideration.

In Louisiana, a bill took a less direct approach to practice expansion. Had it passed, chiropractors would be able to advise patients on “health and wellness” and to use any diagnostic tests relevant to “the patient’s condition.” Other state bills were more modest in their expansion efforts. As mentioned, California rejected chiropractors performing physicals for school athletes. Bills failed in both Oregon and Kansas that would have allowed a chiropractor to return a student athlete to play following a concussion.

Helping you fight back

Over on SfSBM, we’ve been following CAM bills since 2013. By the time the state legislative sessions start in 2017, we hope to have an entirely new format in operation. Mark Crislip is creating a terrific new U.S. map that allows you to click on any state to follow what it going on, instead of sifting through a long list covering all states. We are also adding an RSS feed (a commenter request). Finally, we want to add more coverage of Congressional bills. Of course, we’re not doing this for the fun of it. You need to use it to fight CAM expansion in your state. Otherwise, your new PCP could be a naturopathic chiropractor or TCM practitioner.

 

 

Posted by Jann Bellamy

Jann J. Bellamy is a Florida attorney. She became interested in “alternative” medicine when the Florida Legislature tried to establish a chiropractic school within Florida State University in 2005. She joined others in leading opposition to the school, and this “done deal,” which was strongly opposed by the University faculty, was undone by the university system Board of Governors. During this process, Jann became intrigued that scientifically implausible and unproven healthcare claims could be presented as fact to the public, even to the point of being codified into law. Jann is a former law clerk to a federal judge, Florida Assistant Attorney General and long-time partner in a Tallahassee law firm, where she practiced mainly in the civil litigation area. She left the active practice of law in 2006 to form a non-profit, the Campaign for Science-Based Healthcare, which educates the public about “alternative” healthcare claims and advocates for a state law requiring that all healthcare offered in Florida meet a basic scientific standard. She is a founding member of the Institute for Science in Medicine and a columnist for Health News Florida.

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