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Today we take a look at how the magic of Legislative Alchemy managed to incorporate even more pseudoscience into the American health care system in 2019 via licensing and scope of practice expansion, as well as taxpayer-funded insurance coverage, for acupuncturists. Based on a mythical, pre-scientific system of invisible meridians guiding an ethereal “energy” through the body, acupuncture has successfully invaded the most prominent medical institutions because, well, “integrative” medicine. Attempts to put lipstick on a pig by proposing a physiological basis for acupuncture’s methods and effects (such as they are) remain unconvincing and acupuncture is, in fact, a theatrical placebo.

Unfortunately, none of that matters to policy makers who succumb to the siren song of “popularity” or are just too scientifically illiterate to know better, or both. Riding acupuncture’s coattails into the realm of government-approved fantasy medicine, Traditional Chinese Medicine (TCM), also known as East Asian Medicine, also known as Eastern Medicine, also known as Oriental Medicine, has become a licensed health care profession as well. Unbound by the strictures of science and the scientific method, practitioners claim success in treating cancer, asthma, allergies, infertility, neurological disorders, and cardiovascular disease, among other conditions. In fact, according to them, they can treat pretty much anything.

As with climate change denial and anti-vaccination propaganda, the rejection of evidence in favor of ideology and a good, old-fashioned profit motive can beat back science again and again. Now, on to the specifics.

Medicare coverage

Last July, I wrote a post titled “Medicare proposal covers acupuncture for back pain study participants: A prelude to full coverage?” And the answer is – yes, just without a the study. At the time, the Centers for Medicare and Medicaid Services (which makes Medicare coverage decisions) said:

While we believe the evidence is promising, we do not believe the evidence is sufficient at this time for representative older patients with chronic nonspecific low back pain. We believe additional research would be needed in order to make a favorable coverage determination . . .

Yet, without a jot of additional evidence, in January, 2020, the Trump administration announced it was skipping the proposed study and going straight to a decision allowing Medicare coverage of acupuncture for chronic low back pain for up to 12 visits in 90 days, with an additional 8 sessions for patients demonstrating an improvement. “Chronic low back pain” is defined as lasting 12 weeks or longer, nonspecific (i.e., not related to an identifiable cause, like infectious disease), and not associated with surgery or pregnancy. (Why pregnancy? Because Medicare beneficiaries can be under age 65 in certain circumstances.) If the patient is not improving, treatment must be discontinued.

But what kind of acupuncture? After all, SBM contributor emeritus Dr. Mark Crislip found

over 30 different types of acupuncture with many different modes of operation and fantasy explanations for their claimed effectiveness.

CMS doesn’t say. Given the seemingly boundless inventiveness of practitioners in fabricating new forms of “acupuncture”, expect this new revenue source to get their creative juices flowing. (CMS does say it considers “dry needling” to be “a type of acupuncture”.)

Even while covering acupuncture, without admitting it out loud, there seems to be a recognition that it is not a good idea to let acupuncturists, or chiropractors, loose with a big wad of taxpayer money. Physicians providing acupuncture “in accordance with applicable state requirements” are covered. Physician assistants and nurse practitioners/clinical nurse specialists are covered if they also have a degree in acupuncture or Oriental Medicine and a state license to practice acupuncture. Acupuncturists having a degree and a state license, but without other professional credentials, referred to in the decision as “auxiliary personnel”, are covered only if supervised by a physician, P.A. or nurse practitioner/clinical nurse specialist. Acupuncture provided by chiropractors, even if allowed by their state license, is not covered.

Licensing

Oklahoma is one of the few states that does not license acupuncturists. Introduced in 2019, pending Senate Bill 734 would change that by licensing acupuncturists to insert “acupuncture needles into the body”, with or without using an electric current or heat,

for the therapeutic purpose of promoting, maintain and restoring health, including the treatment of dysfunctions of the body involving pain . . .

Interestingly, the bill, unlike other licensing acts, does not acknowledge the existence any mystical meridians, their imagined blockage, or their putative unblocking via insertion of needles at specific points. That is not to say this omission is an improvement: It is hard to imagine what disease or condition wouldn’t fall under this fuzzy definition, including cancer.

“Auricular acupuncture” is separately licensed and approved for “treating mental and emotional health, post and acute trauma, substance abuse and chemical dependency” even though there is no reliable evidence that this highly implausible method (basically, sticking needles in the outer ear) is effective for anything.

Acupuncturists would be regulated by a Board of Acupuncture consisting of three acupuncturists, one public member, and one licensed health care professional who is not an acupuncturist. Given the expansive array of conditions both acupuncturists and auricular acupuncturists are authorized to treat, and the history of acupuncture boards fluffing the regulations with all manner of accessory pseudoscience, one can expect an equally expansive approach to the Board’s “promulgat[ing] rules and regulations as necessary to carry out this act”.

On the bright side, SB 734 was introduced over a year ago and has yet to have a committee hearing scheduled. This may prevent its meeting a March legislative deadline for further consideration.

More auricular acupuncture

Auricular acupuncture was also on the 2019 legislative agendas of West Virginia, Maine and Massachusetts. Like all auricular acupuncture legislation, the National Acupuncture Detoxification Association (NADA), which heavily promotes the practice, is written into the regulatory requirements for attaining a certificate or license, typically by adopting the NADA protocol for auricular acupuncture as the statutory definition of the practice or requiring NADA training.

In West Virginia, House Bill 2324 was signed into law, allowing certain licensed health care professionals (e.g., nurses, psychologists, and chiropractors) and others (e.g., social workers, emergency medical service providers) to practice “auricular acudetox” therapy “for the treatment of substance abuse, alcoholism, chemical dependency, detoxification, behavioral therapy, or trauma recovery.”

The Maine Legislature passed legislation (House Bill 809) creating a separate license for the NADA-trained “auricular acupuncture detoxification specialist”, who is allowed to treat “substance use and co-occurring disorders” as part of an established treatment program. Only alcohol and drug counselors, physicians, physicians assistants, nurses, nurse practitioners, psychologists and other professional counselors are eligible for licensing but they (physicians, PAs, and nurses included) can practice only under the supervision of a licensed acupuncturist. (An acupuncturist’s scope of practice would already include auricular acupuncture.)

Similar to Maine, bills were introduced in 2019 in Massachusetts (House Bill 1880, Senate Bill 1336) allowing physicians, nurses, psychologists, and other types of mental health practitioners trained by NADA to register as “acupuncture detoxification specialists” for “the treatment of addictions, mental and behavioral health, disaster relief, and emotional trauma”, but only under the supervision of a licensed acupuncturist. Those bills remain pending in 2020.

Practice expansion

With licensing come the perennial pleas for practice expansion. A popular ask is getting the legislature to take the mere sticking-needles-in-people variety of acupuncture and infuse it with the virtually unlimited quackery that Oriental/Traditional Chinese/East Asian/Eastern Medicine offers the practitioner. Maybe, instead of the abbreviation “TCM”, we should use “OTCEAEM” to cover all the bases, since they appear to differ in name only. For example, Maryland House Bill 404, signed by the Governor into law, changes “oriental” to “East Asian” medicine in the acupuncture practice act. “Normalizing energetic physiological functions” is the purpose of both, according to Maryland law.

This new law incorporates some stealth practice expansion as well. Like the proposed Oklahoma practice act, the legislature seems to be dumping the idea that acupuncture is limited to specified “points” on the body. (Maybe because no one can find them?) Thus, while the old acupuncture was based on “a theory of energetic physiology that describes the interrelationship of the body organs or functions with an associated point or combination of points”, the new acupuncture is “based on East Asian medical theories” that describe this same interrelationship, but all references to “points” are stricken from the law. The old definition of acupuncture included “stimulation of points of the body by the insertion of acupuncture needles.” The new definition eliminates “points of” and “acupuncture”.

In a similar practice-expanding vein, references to specific treatments included in the scope of practice (e.g., herbal and nutritional therapies) have been largely eliminated in favor of the far more elastic “East Asian medical therapies . . . performed in according with the principles of East Asian medical theories and practices”. All of this will leave the State Acupuncture Board (five acupuncturists, two public members) with plenty of room to fill in the regulatory blanks. Interestingly, it was on the Board’s recommendation that the legislature “updated” the definition of acupuncture “to more accurately reflect the therapies that are currently practiced by the acupuncture profession.”

Michigan is a textbook example of using a lower tier of acupuncture regulation as a springboard to becoming a licensed healthcare profession, with the state imprimatur of legitimacy that designation (falsely) bestows. Prior to a new law enacted last year, acupuncturists simply registered with the state. Now, thanks to the magic of Legislative Alchemy, acupuncturists are a licensed profession with a broad scope of practice that goes far beyond traditional needle acupuncture.

As Dr. David Gorski, SBM’s managing editor and a Michigan resident, described in his post on what was then a bill pending before the legislature, acupuncturists are, under the new law, allowed to use all sorts of acupuncture techniques: laser, electroacupuncture, dry needling and “intramuscular stimulation”. In addition to treatments one normally associates with traditional acupuncture practice, like moxibustion, cupping, and dermal friction, the new law includes the practice of “East Asian medicine”, which is not defined – a list “includes” certain practices, like herbal medicines, but “is not limited to” those practices – leaving an big, amorphous canvas upon which to paint a definition of one’s choosing. Case in point: Per the new law, East Asian medicine includes manual therapy, dietary counseling, therapeutic exercise, lifestyle coaching and homeopathy. Yes, homeopathy, German in origin, is now a part of East Asian medicine because the Michigan legislature said so. And, in an example of how slapping the term “East Asian medicine” on just about any method magically transplants it into the East Asian canon, “lifestyle coaching” is defined as “the process of advising a patient about healthy lifestyle choices and habits in accordance with East Asian medical theory”.

And who better to help fill in that canvas than the Michigan Board of Acupuncture, consisting of seven acupuncturists, three physicians, and three public members (you do the math), which is granted the authority to write the rules governing acupuncture and “East Asian” practice. As Dr. Gorski pointed out:

That’s the problem with the state regulating quackery. It isn’t science-based practitioners defining the standard of care and educational requirements for “professions” like acupuncture. It’s the quacks themselves.

In an example of poaching legitimate medical techniques to further quackery, Utah granted acupuncturists limited prescription privileges in 2019 by giving them the authority to employ “injection therapy”. This is defined as using a hypodermic needle to inject, either subcutaneously or intramuscularly, any of the following substances, in liquid form, into acupuncture points:

  • A nutritional substance (a term that is undefined, but presumably includes, at the least, substances that are classified as dietary supplements if taken by mouth, such as vitamins, minerals, and herbs)
  • A local anesthetic
  • Autologous blood (for what purpose, I have no idea)
  • Sterile water
  • Dextrose
  • Sodium bicarbonate
  • Sterile saline

“Injection therapy” cannot be performed on pregnant women or children under eight. But taking your nine-year-old to an acupuncturist for an injection of his own blood is perfectly acceptable to the Utah legislature.

Bills before the Rhode Island Senate and House attempted to change “Oriental medicine” to “Chinese medicine”, expand the scope of practice, and add NADA-trained auricular acupuncture practitioners to the practice act. Fortunately, they failed.

Like other bills creating variously-named auricular acupuncture practitioners, this one limited the practice to physicians, PAs, nurses and nurse practitioners, and mental health professionals, who would be called “auricular acupuncture technicians”, an appellation that doesn’t seem particularly appealing to health care professionals. Acupuncture and Chinese Medicine would include both traditional “pulse, tongue, palpation and observational diagnosis” as well as “diagnostic techniques based on newer scientific models”, another squishy term left to the imagination of practitioners. Acupuncture, “adjunct therapies”, and “Chinese herbal medicine” could be used “for the treatment of any ailment”. Herbal medicine included both preparation of formulas from Chinese herbal literature, modifications of those formulas, and “writing of new formulas”. In other words, in addition to mixing up herbal remedies other people made up, you could make up your own!

In Washington, a bill passed changing “East Asian medicine” to “acupuncture and Eastern medicine” in state law, as well as changing “East Asian medicine practitioner” to “Acupuncturist” or “Acupuncturist and Eastern medicine practitioner”. And, straight from a report of the House Committee on Health Care & Wellness:

A person licensed as an Acupuncturist may use the title Acupuncturist, Acupuncturist and Eastern medicine practitioner, or East Asian medicine practitioner and use the letters L. Ac., EAMP, or AEMP.

Well, that should clear things up!

Another Washington bill expands the scope of practice for acupuncturists (and whatever other names they go by) by defining their practice as “a holistic system of medicine” which includes “using needles therapeutically”, and

diagnosing and treating conditions according to medical traditions from China, Japan, Korea, and other East Asian countries, and application of modern evidence-based research to maintain and promote wellness, prevent, manage, and reduce pain, manage substance abuse disorder [including NADA auricular acupuncture], and prevent, diagnose, and treat conditions and diseases.

Query what wouldn’t be covered by this broad definition.

Washington acupuncturists (etc.) already have the authority to use injection therapy, which includes, in liquid form, herbs, minerals, vitamins, and homeopathic and “nutritional” substances. The bill would add the right to use oxygen, epinephrine and medical ozone “for potential emergency purposes” even though the FDA issued a rule in 2016 stating that “ozone is a toxic gas with no known useful medical application in specific, adjunctive, or preventive therapy”, effectively banning its use by banning the manufacture and sale of devices that produce it, although quacks still manage to get their hands on these machines.

Apparently, this last bill remains pending, held over from the 2019. If not, no worries. A 2020 bill has been introduced amending the acupuncture practice act with essentially the same provisions, minus (thankfully) the ozone. It never ends. Stay tuned.

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Posted by Jann Bellamy

Jann J. Bellamy is a Florida attorney and lives in Tallahassee. She is one of the founders and Board members of the Society for Science-Based Medicine (SfSBM) dedicated to providing accurate information about CAM and advocating for state and federal laws that incorporate a science-based standard for all health care practitioners. She tracks state and federal bills that would allow pseudoscience in health care for the SfSBM website.  Her posts are archived here.