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In yet another attack of Legislative Alchemy, bills protecting unlicensed practitioners of “complementary and alternative” health care are, once again, pending before several state legislatures. These “Quack Protection Acts”, as I like to call them, are the brainchild of National Health Freedom Action (NHFA) and a related organization, the National Health Freedom Coalition. To give you an idea of just how ardently these folks promote pseudoscience, I’ll turn to my recent post on their efforts to block public health measures during pandemics.

Under the rubric of “health freedom”, a legally meaningless term, NHFA supports several alternative medicine hobbyhorses. Their chief legislative success has been passage of “safe-harbor” laws protecting quacks from being disciplined under state health care practitioner licensing acts, thereby making it virtually impossible for a state to combat the victimization of consumers by charlatans and their nostrums. They and their allies have been instrumental in getting these “Quack Protection Acts” passed in 11 states. . . .

NHFA, with its sister organization, the National Health Freedom Coalition (NHFC), promotes false information about COVID-19, including posts by GreenMedInfo and the Weston A. Price Foundation, both on NewsGuard’s list of websites known for spreading COVID-19 misinformation. For example, a post by Weston A. Price Foundation founder (and English major) Sally Fallon Morell opines, among other idiotic notions, that the rollout of 5G is somehow responsible for the COVID-19 outbreak and that vaccines make people susceptible to it, both thoroughly debunked by David Gorski . . . Another post recommends the use of homeopathy, falsely claiming that it “is very effective in epidemics”.

NHFC, in turn, hosts the United States Health Freedom Congress, which is sponsored by COVID-19 misinformation “super-spreaders” mercola.com and the National Vaccine Information Center (or, as we prefer here at SBM, the National Vaccine Misinformation Center), as well as companies selling various nostrums, like EMF “protection” and homeopathic remedies.

Unfortunately, they recently met with some success in Kentucky, where their ally, the Kentucky Medical Freedom Coalition, was instrumental in passing a law granting religious and conscientiously held belief exemptions (in other words, an exemption for any reason, or no reason at all) from any vaccination that might be required by the state during an epidemic.

Today, we return to the NHFA’s and NHFC’s Quack Protection Act operation and their role in introducing bills in several state legislatures this session, some after failures in previous years.

Wisconsin Senate Bill 98 is a so-called safe harbor bill, sponsored by three state Senators and 13 Representatives. It protects “complementary and alternative” healthcare practitioners from prosecution for the unlicensed practice of medicine, one of the few tools a state has to combat quackery. (The unlicensed practice of other health care professions, like physical therapy and dietetics, is also included, but here we’ll focus on medicine.)

Currently, the unlicensed practice of medicine is a crime subject to a penalty of up to 9 months in jail and a fine of up to $25,000. Thus, if passed, this bill literally provides a “get out of jail free” card for quacks. As well, the state would be stripped of its authority to obtain an injunction against someone practicing medicine without a license, no matter the harm being done, as long as the practitioner fell within the “safe harbor” provisions which, as you’ll see, is a pretty low bar.

The bill makes clear that it is open season for quacks who wish to prey on the good citizens of Wisconsin by broadly defining “complementary and alternative health care service” as “a health care practice or method of healing therapy or modality”. (No, really, that’s it.) Notably, by including “alternative” health care, the drafters emphasize that it is perfectly permissible for practitioners to employ any “therapy or modality” meant for use in place of safe and effective medical treatments.

Specifically listed in the bill as allowed practices are nonsense like aromatherapy, cranial sacral therapy, healing touch, kinesiology, polarity therapy, and reflexology. To practically ensure that someone will be poisoned, burned, or otherwise needlessly injured, “modalities” with a real potential for physical harm are also included in the bill, like Ayurveda, “detoxification” practices, “herbology or herbalism“, homeopathy, and “healing practices” using supplements, cold and heat.

Typical of these safe harbor laws, practitioners are prohibited from doing certain things most of them don’t want to do anyway, like using X-rays, setting fractures, and prescribing drugs. In a provision that makes my blood run cold, they cannot puncture the skin “except by pricking a finger for purposes of blood screening”, opening the door to lucrative quack lab tests like live blood analysis. They cannot “make a diagnosis of a medical disease” but diagnosing fabricated diseases (adrenal fatigue, for example) is apparently permissible. “A general assessment regarding normal structure or function in humans” is permitted, whatever that means.

Disturbingly, there is no disease or condition these CAM practitioners are prohibited from treating. This leaves open the possibility of, for example, Gerson therapy for cancer, Ayurveda for neurological conditions, “detoxification” for gastrointestinal diseases, homeopathy for childhood maladies, and supplements for mental illness, even when used as substitutes for proven medical therapies. In another horrifying example, there is also no prohibition against a CAM practitioner delivering babies and giving prenatal and postnatal care for mothers and infants. The possibilities for exploitation of sick and vulnerable people are practically endless.

Fortunately, the bill prohibits CAM practitioners from recommending that a treatment prescribed by a physician or other licensed health care provider be discontinued, although there is no requirement (unlike some other quack protection laws) that the practitioner tell clients to discuss alternative treatments with their physicians.

These practitioners need not have any education or training whatsoever, although they are free to tout their “credentials”, even if purchased online. There is no minimum age requirement for hanging out one’s shingle. Convicted felons can practice as CAM providers as long as they have completed their sentences and the felony did not “relate to providing health care”, but crimes like fraud, abuse, or sexual assault are not excluded.

In one of the few requirements imposed on them by the bill, practitioners must give the client “complete and current information concerning the . . . practitioner’s assessment of the client” and “the nature of the complementary and alternative health care services to be provided”. (What we wouldn’t give to see a few of these “assessments”!) But in what would appear to be a mutually exclusive provision, they cannot “falsely advertise or provide false information about . . . a complementary and alternative health care service”.

The bill is supported by Big Supp, in the form of the Sunshine Health Freedom Foundation, a non-profit funded by Nature’s Sunshine, an international multi-level marketing company selling dietary supplements, essential oils, and the like, with over $87 million in net sales in 2020. The Foundation successfully lobbied for passage of Nevada’s quack protection law in 2015. The only organization on the record opposing the bill is the state chapter of National Association of Social Workers. The state medical society’s stance is listed as “undisclosed”.

A public hearing was held in early March before the Senate Committee on Insurance, Licensing and Forestry, but it does not appear that the Committee has voted on the bill. An amendment has been proposed by the bill’s main sponsor adding that the prohibition against making a medical diagnosis “does not prohibit a complementary and alternative health care practitioner from responding generally to a client’s expressed concerns”; again, whatever that means.

Similar legislation is pending in Massachusetts and Iowa, the main difference being that these bills do not include a list of specific quack practices blessed by the state.

Massachusetts House Docket No. 1169 and Senate Docket No. 1085 (neither has been assigned a bill number), both styled “An Act providing for consumer access to and the right to practice complementary and alternative health care services”, are also safe harbor bills protecting quacks from prosecution for unlicensed practice if they follow a few basic requirements. “Complementary and alternative health care practitioners” can practice “complementary and alternative health care”, expansively defined as “that broad domain of health and healing therapies and methods of practice”, excluding a few prohibited activities, like providing “a medical diagnosis”, surgery, using spinal anesthesia or radiation, prescribing drugs, or performing a chiropractic adjustment.

Like the Wisconsin bill, there is no prohibition against treating any particular disease or condition, like cancer or COVID, and alternatives to proven medical therapies can be offered. The practitioner need not have any education or training. As far as the state is concerned, a twenty-something high school dropout and convicted sex offender can set up shop as a “complementary and alternative health care practitioner”. Unlike the Wisconsin bill, there is no prohibition against providing false information or false advertising.

In exchange for this largesse, the practitioner must do a few simple things: disclose, in writing, his contact information, a description of the health services he will provide, that the client’s records are confidential (although no records need be kept), and his “degrees, training, experience, credentials, or other qualifications if any.” [Emphasis added.]

That’s it. This “health care practitioner” can then go on to, say, sell his client dietary supplements and herbs for the her cancer (never mind that they may adversely interact with her medical treatment), “detoxify” her, and unblock her chakras, all for whatever price he cares to charge.

Iowa’s HF 404, also a safe harbor bill, likewise allows a broad scope of practice for providers of “complementary and alternative health care”, which is generously defined as “a diverse group of health care and healing systems, methods, and treatments”, implying that healing and successful treatment are indeed possible outcomes. Like other bills, no education or training is required, age and a criminal record are no impediment to practice, and any disease or condition can be treated. Unlike other bills, there is no prohibition against making a diagnosis, medical or otherwise, although the bill does include the usual provisions against surgery, using radiation, and prescribing drugs.

The provider must disclose, in writing, that he is not licensed and that the state has not adopted education and training standards for complementary and alternative providers. The client must be told she is free to seek healthcare from a licensed provider and that she “should consult with a licensed provider before modifying or discontinuing” any prescribed treatment. In another slight nod to consumer protection, a provider can be prosecuted if he

Willfully administers a treatment that causes an imminent and discernable [sic] risk of serious bodily injury, serious physical or mental illness, or death.

If the risk is latent or its effects delayed, or the treatment is negligently administered, or the injury doesn’t rise to the level of “serious” or “death”, too bad.

Fortunately, several medical groups have come out against the bill and it appears to have missed a legislative deadline for further consideration, making its passage prior to the Iowa Legislature’s April 30th adjournment unlikely.

In Connecticut, there is a proposed bill to protect uncompensated “alternative health care practitioners” of reiki, healing touch, herbalism, and the like, but specific language has not yet been drafted and it seems unlikely to be taken up given the legislature’s May 12th adjournment date. But never say never when dealing with state legislatures.

A small victory for science-based medicine

A North Dakota bill (HB 1472) was voted “do not pass” in committee after the presentation of testimony. That testimony both exposes the misleading claims made by proponents and demonstrates the value of the science-based healthcare community showing up to oppose these measures. The full House then voted overwhelmingly against the bill.

The bill protected “complementary and alternative” providers from prosecution for unlicensed practice, although exactly what constituted “complementary and alternative” health care was undefined. Like other “safe harbor” bills, this one contained the usual prohibitions against surgery, use of radiation, and prescribing, as well as providing a “medical diagnosis”, and required similar written disclosures (e.g., contact information and degrees and training “if any”). Also like other bills, there was no limitation on what the provider could treat and a criminal record was no problem.

The bill was sold by proponents based on the putative popularity of alternative medicine, as a solution to the lack of access to health care in rural areas, and as an answer to increases in obesity, diabetes, and other chronic conditions, for which the medical profession is made a scapegoat:

If we give an honest evaluation of the data, we will recognize that the health of the citizens of North Dakota is worsening and the mainstream medical community cannot provide the care on their own that our citizens need.

A representative from National Health Freedom Action testified that

Clients find that gentle complementary and alternative care practitioners offer approaches that often either more natural or may help them address their health concerns by lifestyle changes or non-invasive healing techniques.

What was missing from this testimony is any evidence whatsoever that quackery is an adequate substitute for lack of access to medical care, that “natural remedies” are safe and effective solutions to obesity, diabetes, or any other disease or condition, or that alternative medicine providers limit themselves to “lifestyle changes” and “non-invasive healing techniques”.

As the President of the North Dakota Academy of Nutrition and Dietetics testified:

I work with patients regularly who have received poor advice relating to their treatment regimens causing vitamin toxicities, severe unintentional weight loss, financial harm and [this] in turn can reduce the likelihood of successfully completing treatment.

And, as the general counsel for the North Dakota Hospital Association told the committee:

The bill is so broadly written that it would allow an unlicensed individual to perform any treatment or care other than the listed prohibited acts, so long as the required notice is given. For example, an unlicensed individual could provide psychotherapy, nursing care, dentistry, physical therapy, occupational therapy, podiatry, psychology, radiologic imaging such as ordering and reading MRI’s, and a host of other health care services that require a professional license and specialized education and training under current law.

She and others pointed out that there would be no regulatory authority to oversee the “medicine” or treatments recommended, no complaint process, and no way to shut down an unsafe practitioner as long as he complies with the minimal requirements of the proposed law. In short, “there would be no protections in place to ensure the safety of people treated with alternative or complementary care”.

Others giving testimony against the bill included the North Dakota Boards of Medicine and of Chiropractic Examiners and the North Dakota Medical Association. Of course, these deficiencies are so obvious that no “health freedom” bill should ever pass but showing up and pointing out the obvious can make a difference.

The irony in all of these bills is that licensed health care providers, like physicians, who have far more education and training (or any at all, for that matter) are held to a much higher standard than providers with little or no education and training, which, if it exists, is likely in quackery. None of these bills, for example, establish a standard of care or require informed consent or liability insurance, and only one has a specific prohibition against false advertising. Yet, both licensed and unlicensed providers can do many of the same things: diagnose (even if not a “medical diagnosis”) and treat any disease or condition in any patient (or “client”) of any age.

To sell this as “health freedom” is absurd. What we really need is more stringent regulation of quacks, not a state-sanctioned business model for them to bamboozle consumers.

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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.