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Practicing a licensed health care profession, such as medicine, without a license used to be a felony in Nevada. Not any more. As of July 1, quacks and charlatans are free to ply their trades unencumbered by the threat that they might have to answer to the regulatory authorities for their misdeeds, as long as they follow a few simple rules.

This new law, passed overwhelmingly in the Legislature and signed by the Governor, is yet another success of the “health care freedom” movement. It was shepherded through the legislative process by Alexis Miller, a lobbyist for the Sunshine Health Freedom Foundation (Sunshine), which is affiliated with the National Health Freedom Coalition. It’s Director of Law and Public Policy, Diane Miller, also spoke in favor of the bill. We’ll get back to these groups and their comrades in arms in a moment.

First, let’s take a look at what the new law does. A person who provides “wellness services” is protected from prosecution as long has he doesn’t practice medicine, podiatry, chiropractic, homeopathy (homeopaths are licensed in Nevada) or another licensed profession. Some forbidden services are listed in the law, including surgery, setting fractures, prescribing or administering x-rays or prescription drugs, or providing mental health services in the exclusive domain of psychiatrists and psychologists. Of course, while there is certainly danger in untrained persons doing any of these things, they aren’t generally on your average quack’s list of services, nor are they likely interested in them in the first place.

The law does have some good provisions. The wellness service provider can’t recommend that his client discontinue or alter current medical treatment or make a “diagnosis of a medical disease.” I suppose this leaves open the possibility that one could diagnose a “non-medical disease” such as chronic candidiasis or adrenal fatigue. He can’t state or imply that he is a “provider of health care,” although I imagine that is a distinction lost on the average consumer.

He must also recommend that the client notify her primary care physician or other health care providers about the wellness services she is getting and provide certain other disclosures in writing. That’s about it for actually protecting the public.

The rest of the statute may look like it’s for public protection, but it actually serves the interests of the “wellness services provider.”

Here’s how “wellness services” are defined:

“wellness services” means healing arts therapies and practices, and the provision of products, that are based on the following complementary health treatment approaches and which are not otherwise prohibited . . .

(a) Anthroposophy.

(b) Aromatherapy.

(c) Traditional cultural healing practices.

(d) Detoxification practices and therapies.

(e) Energetic healing. [As opposed to lethargic kind?]

(f) Folk practices.

(g) Gerson therapy and colostrum therapy.

(h) Healing practices using food, dietary supplements, nutrients and the physical forces of heat, cold, water and light.

(i) Herbology and herbalism.

(j) Reflexology and Reiki.

(k) Mind-body healing practices.

(l) Nondiagnostic iridology.

(m) Noninvasive instrumentalities.

(n) Holistic kinesiology.

Other than a few supplements with sufficient evidence to support their use and maybe a heating pad for muscle pain, the list of one big “get out of jail free” card for charlatans.

Miller, the Sunshine lobbyist, helpfully provided the legislators with definitions of these practices. (And they passed this bill anyway!) Note how she uses alt med dog whistles to carefully tiptoe around any implication that these might be used to treat any medical (as opposed to imagined) condition or disease. For example:

Aromatherapy: the use of substances such as essential oils, food, nature, or dietary supplements that have aromas, to enhance positive experiences or wellness. [Since when do dietary supplements “have aromas?”]

Gerson Therapy: . . . A natural treatment that activates the body’s ability to heal itself through an organic, plant-based diet, raw juices, enemas and natural and dietary supplements.

Herbology and Herbalism: the study of and the use and sharing of, herbs and herbal products to promote well being.

She used the same tactic to dance around the prohibition against diagnosing.

Non-Diagnostic Iridology: the review and observation of a picture of the iris of the eye of a person to gain information and understanding of a person’s body, not including disease diagnosis.

Holistic Kinesiology: the use of muscle testing to assist a person in increasing their self-awareness and wellness needs for balancing energy and electromagnetic flow.

These two are actually scams used to convince people they need to buy herbs and dietary supplements, as demonstrated by the website of “Dr.” Jim Jenks, who testified in favor of the bill at a legislative hearing. (Jenks is on the Sunshine board of directors, along with three naturopaths.)

As Jenks explains in an online video, you can learn holistic kinesiology in minutes with his CD course. Once enlightened, you can proceed to have your child hold a loaf of white bread. Whether his muscles are “strong” or “weak” will tell you if he has an allergy to a substance in the white bread. Jenks’s word salad explanation of iridology avoids any direct claim that it can actually diagnose disease. Rather, he claims it is an “early warning” system to avoid disease.

While we’re on the subject, let’s look at some of the other treatments available in Nevada that will fall under the protection of the new law.

There’s “sound therapy” from the Steamboat Healing Center & Spa, which, in another nice word salad, is claimed to:

Promote the body’s natural healing abilities through the use of electronic sound application devices to transmit frequencies associated with healthy cells to the body’s organs and tissues. Modern science has shown that the human body is a dynamic energy system and that our cells, organs, and tissues have their own vibratory nature. This natural resonant frequency can become upset and unbalanced, leading to pain, illness, or disease.

No, modern science doesn’t show this at all. But more to my point, the clear implication here, of course, is that sound therapy will have a positive effect on this “pain, illness, or disease.”

And there’s “Energy Healer Steve,” who provides his particular brand of energy healing via long-distance. Steve claims energy healing can, among many other benefits, reduce blood pressure, “adjust the flow of the endocrine system,” and reduce the side effects of drugs. Here’s his treatment for tinnitus, in answer to the question posed on his website: “Can Tinnitus Be Cured or Healed?”

You book a session through Paypal . . . I get some initial history on how the tinnitus started. We then get what I call a SUDS level or Subjective Units of Distress from 1-10, 10 being the highest level of distress or in this case tinnitus.

I then send bio-energy into the inner ears for about 20 min and then we take another SUDS level or distress level. In many cases the tinnitus level is reduced. I then repeat this sequence several times within the hour session. Most clients experience a good deal of relief after the first session. It may take several sessions to get the tinnitus level to zero or to a place my clients are happy with.

I note that none of these “wellness providers” include the law’s required disclosure that the provider “is not licensed, certified or registered as a provider of health care in this State.”

It is interesting that, while these charlatans are making money from their nostrums, the new law places almost the entire burden for the harm they might cause on others. First, as mentioned, the wellness provider must give clients a written statement telling them to notify their licensed health care provider before beginning any “wellness plan” and tell him the nature of the services she is about to undertake. The statement must also tell the client to ask her PCP about potential drug interactions, side effects, risks or conflicts between any medications or treatments the PCP or other health care provider has prescribed.

Of course, patients should share this information with their health care providers. But this provision is based on the assumption that the already-busy PCP has the duty to keep up with the ever-growing field of pseudoscience and, in essence, perform some of the duties normally placed on the shoulders of the provider who prescribed the treatment. If Dr. Smith prescribes drug X to his patient, it is not normally up to Dr. Jones to provide a risk-benefit analysis of Dr. Smith’s recommended treatment to their mutual patient. And if the patient is already taking a drug prescribed by Dr. Jones when he sees Dr. Smith, it is up to Dr. Smith to advise the patient of any potential interactions between the two drugs. But if a wellness provider Smith prescribes a dietary supplement, Dr. Jones is now burdened with having to explain all the risks of Smith’s treatment.

One can well imagine how this plays out when an ENT physician is treating tinnitus and the patient explains he is about to embark on a round of remote energy healing with Healer Steve. Is there a “conflict . . . between [the] treatments” here that the ENT should explain?

What happens when the supplement or other wellness service prescribed by our hypothetical wellness provider Smith causes harm to his client? If he were Dr. Smith, he would be subject to discipline by the medical board if he fell below the standard of care for physicians. In other words, if he were negligent, he would be liable to the patient for damages as well and would likely have medical malpractice insurance to cover any judgment.

But wellness provider Smith’s ignorance operates to his advantage under this statute. He is subject to sanctions only if he:

Treats a person’s health condition in a manner that intentionally or recklessly causes that person recognizable and imminent risk of serious or permanent physical or mental harm.

So, just being stupid or negligent doesn’t result in any sanction. Or, even if the provider is reckless or intentionally harms the patient, there is no sanction if the harm isn’t recognizable, imminent and serious or permanent.

Not that much happens to the wellness provider even if he does intentionally cause permanent physical harm or in any other way violates the law’s prohibitions. The only sanction is being charged with a misdemeanor. And there is no specific law enforcement or regulatory authority given the job under the new law of investigating or prosecuting these transgressions. Interestingly, there are a number of criminal acts in Nevada resulting in less harm to the victim that are classified as felonies. Buying or receiving stolen goods worth less than $2,500, violating a restraining order, or stalking by text-messaging are all felonies that can result in 2-5 years in jail and a fine of up to $10,000. Practicing medicine or another health care profession without a license used to be a felony as well, but the new law reduces the penalty to a misdemeanor.

Of course, the injured party can sue the offending wellness provider, but there is no requirement that the provider carry liability insurance, leaving the seriously or permanently injured client without recourse unless the provider has financial resources available to satisfy a judgment. And if he doesn’t, or they are minimal, the client is unlikely to find an attorney to represent her anyway.

Let’s take our promised look at the fine folks who were behind this law’s successful trip through the Legislature and on to the Governor’s desk. The Sunshine Health Freedom Foundation claims it is a non-profit foundation “created exclusively for the promotion, maintaining and expanding health freedom for Nature’s Sunshine Distributors and Managers.” Nature’s Sunshine is a multi-level marketing operation selling dietary supplements, with net sales revenue of almost $84,000,000 in the first quarter of 2015, according to the company’s SEC filing. About 300,000 people participate in it MLM operation as distributors worldwide. In addition to Alexis Miller, Sunshine has three other paid lobbyists in Nevada.

Sunshine is part of the National Health Freedom Coalition, whose Director of Law and Public Policy assisted in lobbying for the bill. It is also a voting member of the Coalition’s Health Freedom Congress, whose other illustrious members include Autism One, The Bolen Report, DAMs Inc. (Dental, Amalgam, Mercury Solutions), and mercola.com. The Congress gave Barbara Loe Fisher, the grand dame of the anti-vaccination movement and head of the execrable National Vaccine [Mis]information Center, an award for:

protecting the human rights of parents, children and all the members of the human family as it applies to vaccine safety.

Yes, that’s how bad these groups are – they gave an award to Fisher for protecting human rights, human rights being a venerable concern purloined by the anti-vaccination movement for its own purposes.

So, who else is responsible for this bill’s success? According to the Sunshine lobbyist, they worked with the Nevada Medical Association and the Board of Medicine “to craft a bill they could support.” Sure enough, neither group was anywhere in sight during the committee hearing on the bill nor did they file anything in writing. I could not find any official position on the bill taken by the Medical Association on its website.

The only real opposition to the bill came from – of all places – the Board of Homeopathic Medical Examiners. Cyrus Pourzan, MD, HMD, a member of that Board, made some excellent points.

  • The bill opens Nevada up to the unregulated practice of medicine.
  • There is no administrative structure to review wellness practitioners’ practices.
  • A felony offense is downgraded to a misdemeanor.
  • Because the word “aromatherapy” contains the word “therapy,” it implies the practice treats a diagnosed illness.
  • Herbs are powerful medicine that can cause problems. He referenced his own 3-inch thick book on herb-drug interactions.
  • Holistic kinesiology is a diagnostic tool with no wellness purpose and questionable reliability. (He admits it is used in homeopathy.)
  • More people could be driven to the emergency room and delay diagnosis of illnesses because they are under the false impression that they are being accurately treated.
  • Anyone can come to Nevada, legally or illegally, and open a wellness clinic.

The homeopathy Board’s Executive Director testified that she regularly fields calls about people who offer “dream cures” though herbs, vitamins or other treatments. Normally, she’s required by law to contact the authorities about these calls. Her interpretation of the bill was that the Board could no longer involve itself in chasing after “purveyors of cancer cures and their ilk.”

In his testimony, Dr. Pourzan pointed out that there didn’t seem to be a constituency for the bill. No one in state history had ever been prosecuted for recommending a dose of vitamin C.

The constituency is an unholy alliance of ideologues who want to protect quack practitioners from being held accountable for their actions and companies, like Nature’s Sunshine, who are making millions selling dietary supplements. This has nothing to do with public demand for “wellness services.” It has nothing to do with wellness at all.

 
 

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.