A Feature or a Bug?

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When a trusted business or organization screws up, it’s good to give them the benefit of the doubt. We all make mistakes.

I have trusted the NCCAOM. They were important to our acceptance as a legitimate profession. In 2014 I encouraged people to support a transition to their exams in California, hopeful that one national standard of entry would further the growth of the profession.

But I’ve noticed a pattern – the NCCAOM makes a big announcement and seems unprepared for the response. They scramble to address the upset, explaining why we don’t understand their good intentions or their difficult position.

I used to think it was a bug. They just weren’t as competent as I’d thought. And Acupuncturists mostly don’t understand their role and are quick to react.

But now I think it’s a feature.

We don’t understand their role because they talk out of both sides of their mouth – they say or do contradictory things depending on their immediate desire.

In the “NCCAOM Questions and Clarifications” document (released in draft format), their response to the reaction to the changes in testing policies, the NCCAOM writes:

“There are some policies where we may ask our stakeholders’ opinions and use that to determine policy.  There are many other policies where this is not appropriate because of the requirements of our accrediting body, fiduciary responsibilities (the fiscal health of NCCAOM), or impacts to public safety need to drive our policy decisions.  NCCAOM is not a membership organization, it is a credentialing organization. Examples of this include: the elimination of the apprenticeship-only route, elimination of the pre-graduation route, and the revisions to the NCCAOM® Code of Ethics and the Grounds for Professional Discipline. These are examples that our policies are driven by our NCCA accreditation standards.”

But the NCCAOM did ask for input on the Code of Ethics and Professional Discipline, and their revised code reflected that input.

And the NCCAOM did step back from some of their announced changes in response to concerns from stakeholders. Clearly they had some flexibility, and could have done this prior to their announcement.

And in 2016 the NCCAOM shared –  “Breaking News! New Membership Organization Announcement!” describing their “Academy of Diplomates.” The Academy Board is a subset of the NCCAOM Board, your NCCAOM recertification fees support this organization, and links on the Academy website take you back to the NCCAOM. No wonder we’re confused.

In “Questions and Clarifications” we read – “It is no secret that the number of students taking the exams, annually, has dropped dramatically over the past decade.” Their upbeat NCCAOM Spring 2018 newsletter doesn’t mention it, nor has it been a topic in their frequent Acupuncture Today articles. Study their annual reports and you can uncover the truth, but that isn’t the news they’ve been sharing.

Fewer people taking the tests means fewer new practitioners. Shouldn’t the profession give scrupulous consideration to any policy or regulatory changes that make it harder to enter the field?

The NCCAOM’s current honesty regarding their financial concerns is appreciated. It also demands that we reconsider their previous denials that money drives their policy positions. Their support of efforts to require the herb exam of all practitioners (UtahNCCAOMletter), and their complicated PDA system, make sense from a financial perspective, not from a safety one.

The NCCAOM denies that their exams shape our education. They say schools should not teach to the test. They also advertise, “It is recommended that ACAOM Approved Schools Faculty members sign up for [the NCCAOM] practice tests to familiarize themselves with the process.”

They dismiss concerns that a new voluntary certificate program could become mandatory. They simultaneously support efforts to make the voluntary herb testing mandatory.

Underneath it all is the refrain, the “NCCAOM’s number one priority and mission is to protect the public.” This is as it should be. But one insurer recently reported receiving 1-3 reports of harm per week, including reports of pneumothorax, burns, and infections. In a profession of, at best, 30,000 practitioners, shared between multiple insurers, that’s alarming. Is there evidence that patients in Maryland or West Virginia, where there is no NCCAOM testing requirement, are more likely to suffer harm?

With great power comes great responsibility. The NCCAOM denies their power and their responsibility, but they are the gatekeeper to the profession. They have us by the short hairs. Their denials aren’t believable.

I’ve given them the benefit of the doubt for years. I’ve explained away their errors as bugs and defended their good intentions. It’s painful to acknowledge that I no longer trust the NCCAOM.

They need to get a lot more honest and a lot more competent quickly, or we need to get serious about finding an alternative.

 

 

 

NCCAOM Updates and Links of Interest

The NCCAOM has responded to community concerns about changes to their testing procedures.

Here is an explanation of why they needed to change to limited testing windows and delays in providing preliminary results, along with a statement that they will delay this change to 2020. They will also work with the schools to set the testing windows to coordinate with graduation dates. Please do read it so you understand why these (temporary) changes will happen.

And here is the FAQ regarding the elimination of the Pre-graduation eligibility route. The date for this change is still September 1, 2018, and the FAQ isn’t quite so transparent. I do understand that the NCCAOM has to treat all applicants the same. Under the current system students of ACAOM-accredited schools can begin testing prior to graduation, while those in apprenticeship or foreign programs can’t. So, that’s not right. But some of the supposed benefits in the NCCAOM FAQ don’t seem all that beneficial. The answer to Q2 doesn’t actually answer Q2. And could they address the problem with less disruption? Allowing all students to sit all but one exam prior to graduation might address some of the problems mentioned by the NCCAOM without leaving new graduates in limbo for quite so long.

Here are some interesting links in no particular order. The issues may not be directly related to the acupuncture profession, but affect the bigger ecosystem.

A Dark Side of Chinese Medicine

Results of VT Medicaid Pilot Project using Acupuncture

The Value of the Doctor-Patient Relationship

For Fun if You are in New York City

Increasing Tuition at For-Profit Schools as GI Benefit Grows

Healthcare for those with Disabilities

Family Physicians on Nurse Practitioner Scope

Occupational Licensing for those with Criminal Records

The Acupuncture Observer’s Odds, Ends, and Action Items

I can’t keep up, so prepare for some less polished posts as I play catch up.

First, housekeeping —

I’ve been using the blog for essays and analysis and using The Acupuncture Observer and Acupuncture Regulation-US Facebook pages to share articles of interest. Follow those pages, and if the FB algorithm cooperates, you’ll get important background and stay on top of current events.

I kind of hate Facebook and may give it up one of these days. Subscribe (if you haven’t already) to The Acupuncture Observer blog by entering your email address in the box in the upper right (under the banner photo) of the home page. Don’t count on Mark Zuckerberg to show you what’s important.

I’m considering a weekly (or so) blog post with links to a selection of the articles I’ve been posting to FB. Good idea?

Regarding The Acupuncture Observer —

I am not a journalist. I am an acupuncturist with experience on the board of state and national associations and the state regulatory agency. I am also a news junkie.

I have a point of view.

That point of view is informed by my experience, research, insider reports, news, transcripts of meetings, etc. I link to supporting information. My opinions are not based on hearsay or one individual’s report.

If I am wrong, let me know. That’s what the comments are for. I moderate to exclude spam and to reduce unnecessary rudeness, not to shut down differences of opinion. Reach out if you’d like to run a guest post.

If the position of you or your organization is already widely known, and especially if you have ready access to Acupuncture Today or widely distributed organizational newsletters, don’t expect equal time here. You already have a forum for your positions.

I’ll issue a correction if you can show me that I’ve got faulty information. But just telling me that I’m wrong or stupid or “clearly don’t understand” isn’t helpful. Show me the evidence.

And, an Action Item —

The NCCAOM has recently announced changes to their testing procedures.

1)      As of this September, people will no longer be able to sit the exams before they graduate.

2)      As of 2019, the exams will only be offered during four 12-day windows. There will be two testing windows for foreign language exams and reinstatement exams.

3)      People will no longer get preliminary results immediately after taking the exams and will need to wait eight weeks to find out whether they passed. That will give people a week, at best, to register for and re-take any exams in the next testing window.

See page 11 –  http://www.nccaom.org/wp-content/uploads/pdf/2018%20NCCAOM%20Spring%20Update%20to%20CCAOM.pdf

Unlike some changes at the NCCAOM, I don’t blame a profit motive. Each change, in and of itself, has a reasonable explanation. But, the sum total of the changes will have a negative impact on the ability of recent graduates to obtain state licenses in a timely manner. Enrollment in ACAOM schools dropped 18% between 2014 and 2018. Meanwhile, the demand for acupuncture is growing. It’s a terrible time to drag out the licensure process.

I hope you will sign the petition. (The petition language incorrectly refers to regulatory changes. The changes are to NCCAOM policy and procedures.)

 

 

 

Firefighting

More than 42,000 Americans died from opioid overdoses in 2016. In 2009 at least 23.5 million people over the age of 12 needed treatment for illicit drug or alcohol use in the US. That number is growing dramatically.

People are dying.

LAcs are rightfully enthusiastic about the use of acupuncture to treat the physical and emotional pain that can lead to the use of and dependence on addictive medications and drugs. We have been proud of the history of auricular acupuncture helping those who struggle with addiction.

The development of a profession of Licensed Acupuncturists and the spread of acupuncture detox specialists happened comfortably, side-by-side, for a long while. Lincoln Recovery in the Bronx was treating addicts with acupuncture in 1974. In 1975 (More History ) the Traditional Acupuncture Institute was founded in Maryland. The AAAOM was incorporated in 1983, NADA in 1985. In many states, auricular acupuncture programs predated the regulation of acupuncture. Their safety and effectiveness was used promote acupuncture and lobby for Licensure.

In 2005 South Carolina (currently 123 LAcs, 658 deaths in 2016 related to prescription opioids and heroin) passed a licensure law with a dark side. Although 53 Acupuncture Detox Specialists (ADSes) had been working without incident in South Carolina, language was included that required an LAc be on site to supervise ADSes. With zero LAcs at the time the law passed, no ADS could continue to treat. (The force behind the legislation was Acupuncturist and then-president of the AAAOM, Martin Herbkersman, whose brother was and is SC state Representative Bill Herbkersman. Rep. Herbkersman also shut down a 2007 bill that would have removed the direct supervision requirement.)

Programs to provide the NADA protocol to addicts have been limited by the supervision requirement.

People are dying.

Unfortunately, South Carolina is not a fluke. The only voices against New Hampshire HB 575, allowing for the certification of acupuncture detox specialists, were the voices of LAcs. Luckily for New Hampshire (127 LAcs, almost 400 opioid related deaths in 2015, over 2000 opioid-related ED visits), the bill passed.

Connecticut (323 LAcs, 539 overdose deaths in the first six months of 2017) did pass a law expanding use of ADSes, but comments in response to the legislation from LAcs included gems like, “acupuncture should be left to the experts, the licensed acupuncturists” and ADSes “have absolutely no idea what it truly entails to safely provide acupuncture to others whether it be one needle or many.”

People are dying.

Remember, at least 42,000 opioid deaths in 2016. The number of Acupuncturists in the US? About 32,000 at best. Dealing with the epidemic is expensive, funding is limited.

It’s a crisis.

  • If you believe ADSes require in-person supervision, become a supervisor.
  • If you believe only LAcs should provide the NADA protocol, commit to weekly shifts at recovery centers, jails, and other programs, and take responsibility for daily staffing of those programs. Remember, funding will be minimal or nonexistent, and, unreliable.
  • If you believe that everyone deserves the benefits of full body treatment, commit to provide them to everyone – even if they can’t pay, don’t have reliable transportation, and aren’t as tidy as your typical clientele.
  • If you believe ADSes should work only within treatment programs available to those in active addiction, make sure your services are accessible to those struggling to maintain their recovery, whatever their circumstances.

Remember, some of the people most needing treatment won’t have insurance, housing, financial resources, steady employment, or reliable transportation. Where and how will you provide the services you think they should have?

If you don’t want to supervise, don’t want to treat everyone who walks through your door regardless of ability to pay, and don’t want to take regular shifts at treatment facilities, then, please, get out of the way of the people who do. Better yet, support them.

People are dying.

I’ve joined NADA, I’m making plans to receive training, and I’ll keep supporting efforts to increase access to NADA-trained providers in all states.

People are dying.

 

This post is in honor of Dr. Michael O. Smith. May his memory be for a blessing.

Third Night – Lowering Standards!?

In recent conversations with colleagues I’ve heard a few exclaim “we won’t agree to lower our standards!” and “we aren’t going to go backwards on our education!”

I haven’t heard anyone suggesting that we lower our standards or go backwards, so I was baffled.

Only momentarily, though, because then I remembered -The Acupuncture Revisions Proposal from the POCA Tech BOD to “revise acupuncture education and testing standards so as to benefit current and future (1) acupuncture students, (2) acupuncture schools, (3) acupuncturists, and (4) the general public.”

They make clear that their proposed standards are based around students meeting all of the competencies required for ACAOM accreditation and preparing graduates to be safe and effective practitioners. (The proposal is concise, well-written, and worth reading. Please do.)

Unfortunately, “high standards” in this profession has come to mean number of hours spent in school. So any change in the number of hours is interpreted as a lowering of standards.

I understand how it happened. When we’ve fought for acceptance, we’ve stressed our hours of training to establish our worth. When clients mention that they got acupuncture from their Chiropractor, we talk about how much time we spent in acupuncture school compared to the D.C.’s short courses. Hours of education has been a battle cry in the dry needling fight. (Which has been mostly unpersuasive since the PT’s 1) deal in competencies, and 2) we use different rules when we count our hours and we count theirs.)

Actually, a standard is “a conspicuous object (such as a banner) formerly carried at the top of a pole and used to mark a rallying point especially in battle.” (Merriam-Webster).

So, hours has become our standard. But it’s such a meaningless standard. I’m sure I’m not the only person who’s been to three-day CEU classes that have been a complete waste of time while a one-hour class contains a transformative nugget. I’ve spoken to people who have taught at some acupuncture schools and the picture they paint is not of hour after hour of quality programming.

We’ve got a workforce that needs to grow. And levels of educational debt that are an impediment to professional success. Affording graduate school and repaying loans isn’t going to get easier.

Read the Acupuncture Revisions Proposal with an open mind.

Our banner should be more meaningful than a number.

 

 

Second Night – Census Time!

How many Acupuncturists are there?

As we strive to increase opportunities for acupuncturists, we should know if we have the workforce to fill the demand we’re trying create. If we don’t have the workforce available, others will step up to fill the need. That may still be a win for the population able to receive acupuncture from other providers, but it won’t be the win the profession has been working for.

The new Standard Occupational Code with the BLS may, eventually, give us a good sense of our numbers. In the meantime, different sources give wildly different numbers of our strength. The NCCAOM, relying on state figures and their active Diplomate data gives a count of under 20K. Others who have gathered date from all of the states (no easy task) have been presenting a figure of almost 35K (Fan AY, Faggert S. Number of Licensed Acupuncturists and Educational Institutions in the United States in Early of 2015. J Integrat Med. 2017 September; Epub ahead of print. doi:10.1016/S2095-4964(17)60371-6).

I’ve historically used the numbers provided by Acupuncture Today. They’ve had the resources to purchase mailing lists and the financial incentive, at least in the days of paper publications, not to send multiple copies to the same practitioner, even if they were licensed in multiple states. I’m not sure their numbers are as accurate in the days of their digital edition, but they are currently showing about 28K LAcs.

In my experience a significant number of practitioners are licensed in multiple states, and a not insignificant number keep an active license when they are rarely or never treating. When getting a license is complicated and expensive, we don’t let them go lightly. For instance, if there were actually 25,000 practitioners, and 20% are licensed in two states, 5% in 3, and 2% in 4, there would be 34,000 state issued licenses.

(To put the numbers in perspective, there are 456,389 primary care physicians in the US. And a lot of patient care is still provided by nurses, PA’s, and other providers.)

Whether there are 20,000 of us or 34,000, it’s a small number to serve the population we hope to serve. And if we’ve got inaccurate numbers we may be writing checks with our ego that our bodies can’t cash.

The Hanukkah story celebrates a miracle – one night’s worth of oil lasted for eight nights. Maybe we’ll have a workforce miracle too. But it would be better if we knew how much “oil” we were starting with. And if we used that information when deciding where to focus our limited resources.

 

 

Proposal regarding Acupuncture Education

The POCA Tech Board of Directors has been studying what it takes to become an LAc and wondering whether there isn’t a better way. POCA Tech has been approved by ACAOM as a candidate for accreditation, and has graduates who are NCCAOM-credentialed, state-licensed and working in the field. The POCA Tech BOD is in a good position to know what works. Here’s what they propose –

Acupuncture Revisions Proposal

I’ve been around long enough to expect the proposal will be met with some outrage. We’ve been insisting that it is the hours of education we have that set us apart. And that almost 2000 hours of training only scratches the surface of what there is to know about Acupuncture and Asian Medicine.

I’ve also been around long enough to know that 1305 hours of training is enough to produce competent providers. That there are countless CEU programs and additional degree programs to help us deepen our knowledge. And that there is no clear evidence that our more extensive training leads to better outcomes.

People want acupuncture. We need more practitioners to meet the demand. And 100K in debt helps no one. I think the POCA Tech proposal makes a lot of sense. What do you think?

 

 

Happy AOM Day??

“Acupuncture is a safe and cost-effective treatment that could benefit so many. If only the medical establishment could see the benefits of what we do.”

That was our mantra decades ago.

So one might think, now that Acupuncture has become accepted and of increasing interest to the establishment, we’d be happy, thriving, and confident.

But that isn’t the prevailing feeling. We love our work and most of us couldn’t imagine doing anything else. And yet AOM Day 2017 finds us fearful and disheartened.

Many of us carry significant debt and are not earning enough to pay it down in a timely fashion. Many of us are limited in where and how we practice due to varying state rules. The hoped for benefits from insurance reimbursement came with significant administrative burden and limits on what will be covered. Increasingly acupuncture is being provided by non-acupuncturists. Meanwhile, the profession isn’t growing. Based on figures from Acupuncture Today, there are fewer LAcs now (24,612) than there were in November 2013 (24,707).

So it is not surprising that we aren’t hopeful. The public and the medical establishment see the value of acupuncture, but we aren’t thriving.

There are things we control that could change our trajectory.

Those of us who completed acupuncture training prior to 1990 (some of our most admired mentors and colleagues) probably got about 1000 hours of formal schooling. If you graduated in 2000 you likely had about 1725 hours of schooling, and if you completed your training after 2011 your program was at least 1905 hours.

You can see, here, how the Virginia regulations have changed over the years. The hourly requirements did not change in response to concerns about practitioner safety or skill, but to keep the regulations compatible with the ACAOM and NCCAOM requirements.

In 1988 tuition at The Traditional Acupuncture Institute (now MUIH) was $11,000 (about $23,000 in today’s dollars). When I started in 1992 it was about $18,540, ($32,616 in today’s dollars). By 2003 tuition had increased to $32,865 ($43,722 in 2017 dollars). And, if I wanted to begin at MUIH today, the program would take almost four years to complete with tuition of $75,924. For a Masters in Oriental Medicine, necessary to practice in Florida, California, and Nevada, I’d pay $99,604.

A student loan of $40,000 at 6.8% interest can be paid off in 10 years at $460/month – considered manageable with an annual salary of about 50K. A $100,000 loan will take over $1150/month and you’d need to make almost 140K/year to manage that.

So it’s not surprising that the profession isn’t growing and that acupuncturists are worried.

Sure, the NCCAOM can embark on a major public education campaign touting our training and credentials.(Well, touting their credential, actually). That’s fine. But with the downward pressure on health care spending in this country, and the impact of debt considerations on professional training, it’s going to take some damn fine PR to make a difference. (Big Pharma & Health Products spent about 245 million on lobbying in 2016.)

A far more direct way to help the profession grow, help future graduates make a living, and make Acupuncturists available to those who want acupuncture would be to address our training. If those who graduated in 1989 were safe with a 1000 hour $18,000 education, why do current students need at least 1905 hours and $75,000? Can we simplify the path and reduce the cost of becoming an Acupuncturist? (Yes, we can!)

If people want acupuncture they will find a way to get it. If we’re not there to provide it, someone else will be. We do have the power to change this, and it won’t take 245 million. In honor of AOM Day 2017, let’s agree that more Acupuncturists and less debt would be a very good thing.

 

 

Professional Harmony, Professional Growth

Acupuncturists know that good health isn’t acquired by attacking invaders. Instead, we advocate living in balance with our environment to develop a strong, self-reliant, vessel. We are healthy when our system excludes threats without our even being aware of them.

As individuals, most of us practice (most of the time) what we preach. We strive for balance.

As a profession, though, we’ve chased the equivalents of miracle cures, mega-antibiotics, and the promises of “experts.” Like our clients who seek well-being that way, we are tired and struggle to maintain our tenuous health.

What if practitioners, schools, organizations, regulators, and credentialing agencies saved the energy and money that went to filing lawsuits against PT’s, (and having to defend ourselves when we are sued in return), establishing new degrees, and changing state regulations to require more training and exams? What if, instead, they identified the minimal standard necessary to practice safely and effectively and committed to work, state by state, to establish that standard as sufficient for licensure? What if we took as a guiding principle and goal that an acupuncture license in one state, and a history of safe practice, should be sufficient for licensure in any state?

Other professions are doing this. PT’s, Nurses, and MD’s are all working to make it easier for practitioners to relocate. Even lawyers can be “waived” into a state based on prior experience. These professionals don’t have to start school wondering whether their degree will be sufficient. A family move doesn’t mean giving up a career.

Acupuncture school is a risky investment, especially when requirements for licensure vary widely and change regularly.

Unlike our other battles, moving toward standardization (of licensure NOT lineage), doesn’t require convincing any judge or insurance company of our position or value. We hold the power to create a system that supports acupuncture professionals and serves the public.

It shouldn’t be difficult. It will be. We are better at vehemently disagreeing and walking away than we are at overcoming differences and finding compromise.

Both herbal credentialing and the FPD degrees were enacted despite concerns we now know were prescient.The ACAOM-sponsored DELPHI process (to establish degree titles), an after-the fact attempt to address some of those concerns, is moving forward, but not without challenges.

We lack an organization for regulators. This increases the tendency for states go their own way, and will make coming together even more difficult. Too often regulators have focused on their personal visions for the profession rather than serving the public. Many of them also sit on the boards of, or work for, acupuncture schools, raising the potential for conflicts of interest.

We could overcome these challenges. We could focus on the benefits and commit to sticking together. We could ensure the public can access Acupuncturists when they want acupuncture. We’ve spent enough on the antibiotics of legal action and the miracle cures of being Doctors and pursuing third-party payment. Now we need to focus on establishing common ground and common requirements, building our strength and our stamina. That would be a huge step toward good health for the profession.

 

 

Delaware’s Revised Acupuncture Law: Good Will, Good Sense, or Good Riddance (Guest Post)

By Joseph Ashley Wiper M.A., MSc. Dipl. Ac. NCCAOM

 

On June 27th 2008 then Delaware Governor Ruth Ann Minner signed HB 377 into law, regulating the practice of acupuncture in Delaware. This law turned out to be problematic and, primarily as a result of legal challenges[1], was replaced on July 19th 2016 when Governor Jack Markell signed HB387 into law. The reported histories of how HB 377 came about (both here and elsewhere) are inaccurate, inconsistent, and have the marks of contrived post hoc fabrications.  I was in constant communication with the self-appointed leader of the initial legislative effort, re-writing a number of the worst paragraphs of the bill during the entire initial process. Almost none of the ‘facts’ in the above reports were shared with me, or the acupuncture community, at the time the bill was being composed and negotiated. I would have reported this history very differently.

The original proposed bill (HB 308), supported by the majority of Delaware practitioners, would have legalized the practice of acupuncture on the basis of possession of the Dipl. Ac. (NCCAOM) credential. At the very end of the negotiation process HB 308 was inexplicably replaced with HB377, requiring NCCAOM certification in Oriental Medicine[2]. This, at the time, excluded over 80% of acupuncturists in the US and made acupuncturists the only class of persons in Delaware requiring a license to prescribe or dispense herbs (even if they had no interest in using herbs). I informed all parties involved of the problems, but was ignored. The NCCAOM representative failed, when asked, to produce the data on impact on eligible practitioners. The bill “grandfathered” in those already practicing in Delaware, then locked the door behind them, even though many of them did not meet the terms they were now proposing for everyone else. One licensee has never been to an acupuncture school or written any of the NCCAOM examinations. The “exemptions” clause in the original Delaware law was not written to permit this.

A number of authorities (Rose, 1979 pp. 189-193; Stephenson & Wendt, 2009 pp. 185-189), supported by a multitude of published peer-reviewed  studies, have concluded that occupational licensing laws typically fail to deliver their promised benefits[3]. This is because they originate within, and are driven by, professional associations and not consumer advocacy or public interest groups[4]. They tend to protect the interests of licensees from competition within their jurisdiction, while offering little accountability for engaging in protectionist gamesmanship. Moreover there are good reasons to suspect that interest in protection of the public has been a very low priority in many jurisdictions. The Bradley Case is one particularly egregious example of systemic failure to protect the public interest from moral turpitude in the State of Delaware[5].  Scholars who have studied the problem including (Baron CH, 1983; Kry, 1999; Larkin Jr, 2016)–to name only a few–are near-unanimous in drawing these conclusions based on evidence developed in a multitude of studies. One compelling legal essay asks whether or not state boards should be subject to anti-trust (Sherman Act) scrutiny (Edlin & Haw, 2013). There are literally hundreds of articles to be found in the legal and economic literature that raise these, and related, questions.

Lessons learned?

I am certain that the principal parties at the negotiation table for the original Delaware law, including the ‘representatives’ of the acupuncture community, chiropractic profession, MDs, and members of other already licensed professions were happy with HB 377 precisely because it would reduce competition. The establishment of virtual cartels should never be passed off as protection of the public interest. There are less invasive means of incentivizing professionalism and securing the public trust.  The replacement of licensing with registration and voluntary certification (Kry, 1999 pp. 887-889; Potts, 2009; Program Evaluation Division North Carolina General Assembly, 2014) would be a step in the right direction, although it raises a number of complex, but not irresolvable, issues. Recent legislative initiatives have even questioned the necessity of these less burdensome measures (Kleiner, 2011 pp. 4-5).

What does “the public” need to be protected from? How effective have state licensing boards been at protecting consumers? Stanley Gross sums it up rather well, while asking the question of whether state licensing is actually justified:

Two forms of evidence have been brought to bear on the question of whether licensing is justified. First, there is the empirical research literature, which is rather new, dating for the most part from 1977. There is some support for the proposition that entry restrictions result in more qualified professionals to serve the public, as judged by the somewhat questionable ratings of peers, the self-reports of professionals themselves, and crude measures of consumer satisfaction (reduced malpractice claims and rates). However, measures of quality that tap the availability of professional services, the extent to which consumers choose to substitute other practitioners, and the direct outcomes of service primarily show either no relationship between entry restrictions and quality or a negative relationship.

 

Second, there is the evidence that comes from the evaluation of the functioning of state licensing boards. It has been shown that licensing boards do not effectively determine initial competence of licensees; they do not help to maintain the continued competence of licensees; they are ineffective in the disciplining of errant practitioners; and they do not properly address the needs of under-served populations. Instead, as has been shown, the licensing system has exacerbated the problems of maldistribution and under-utilization of professionals, and it has supported a “licensing for life” system. The evidence presented does not justify the loss of economic freedom or the costs associated with professional licensing. Neither the licensing boards nor the professional associations that desire licensing can be said to have made their case (Gross, 1986, Conclusion).

 

To this I add that consideration of the Bradley case in Delaware illustrates that the entire regulatory mechanism has, at times, failed catastrophically to protect consumers from harm (see above).

The original Delaware acupuncture law was the product of the collision of competing factions seeking to secure their private interests.  Although there was a cacophony of rhetoric about “protection of the public” and “high standards” there is no evidence that any of this was, or has been, intended or achieved.  In the end, this legislation was a failure that resulted in the denial of the right to work for a number of fully qualified acupuncturists. Only those who could afford attorneys succeeded in tipping the balance in their favor.

There have been a number of recent legal challenges to occupational licensing laws (Klein, 2016 pp. 418-420). North Carolina State Board of Dental Examiners v. Federal Trade Commission may signal that courts are now willing to consider the question of whether or not occupational licensing laws actually further legitimate state concerns or, instead, protect individual board member interests (Klein, 2016, p. 419). Further it may indicate that courts may be willing to limit unreasonable barriers to employment. Patel v. Texas Dep’t of Licensing & Regulation concluded that oppressive training requirements may violate the constitution (Klein, 2016, p. 420).

 Conclusions and how we could move forward

It remains to be seen whether the new Delaware acupuncture law is adequate.  The previous law both protected market player interests and instituted onerous and unnecessary barriers to licensure. There were successful legal challenges to the law. This alone indicates that the original legislation was problematic.  In addition, there are several aspects of the regulations proceeding from the original Delaware law that are also problematic –for many of the same reasons.

Recent challenges to occupational licensing laws in this and other jurisdictions should give us pause moving forward. Larkin reviews the grounds on which occupational licensing laws have been criticized. To put it bluntly, they frequently “hijack state power for the benefit of a few” (Larkin Jr, 2016). This is what happened in Delaware. I propose several changes:

  1. Abolish the licensing of occupations where possible. Substitute state registration based on education and training. When consumers ask that their practitioners be licensed what they mean is that they want some assurance of competency. Registration assures competency at least as well as licensing. Registration should be available to any qualified applicant based on either graduation from a legitimate school or training program OR to any applicant who has been certified in either acupuncture or Oriental Medicine by the NCCAOM (or its successor or equivalent).
  2. NCCAOM certification in acupuncture or Oriental Medicine should continue to be permitted. But it should not serve as the sole basis of licensing in any state. Instead it should be used as certification was original intended: as a voluntary means of distinguishing yourself from other market participants. One useful aspect of NCCAOM certification is that it is still possible to become certified on the basis of having completed an apprenticeship program. The documentation required by the NCCAOM to be permitted to write the certification examination based on apprenticeship is rigorous. The number of hours of documented training required exceeds that required of accredited schools. Given that many graduates of accredited schools take on almost insurmountable debt to complete their training, and have few prospects to earn a respectable income upon graduation, this is a potential solution that should be given serious consideration.
  3. A consumer grievance board under the aegis of the state attorney general’s office should be created in every state to hear and act upon legitimate complaints and concerns of any person registered in any occupation. It should be structured to promote the integrity and propriety of those granted the privilege of state registration. The majority of appointees should be members of the public and not occupational registrants. This could, if appropriately implemented, solve the problems of Boards failing to act on consumer complaints and failing to discipline their licensees—a failure that led to the Bradley debacle described above.

Will we do any of these things? What will happen if we continue on our current course? Only time will tell.

(You can see the most current version of this piece (a work in progress) here.)

References

Baron CH. (1983). Licensure of health care professionals: the consumer’s case for abolition. American journal of law & medicine, 9(3), 335–356. https://drive.google.com/open?id=0B0bO1cR6ClJRNGt3aVJDczBSODA

Bryson, A., & Kleiner, M. M. (2010). The regulation of occupations. British Journal of Industrial Relations, 48(4), 670–675. https://drive.google.com/open?id=0B0bO1cR6ClJRM1VER3FaRVdob3M

Edlin, A., & Haw, R. (2013). Cartels by another name: Should licensed occupations face antitrust scrutiny. U. Pa. L. Rev., 162, 1093. https://drive.google.com/open?id=0B0bO1cR6ClJRZ2xyUlpmN0MzUEE

Gellhorn, W. (1976). The Abuse of Occupational Licensing. The University of Chicago Law Review, 44(1), 6–27. https://drive.google.com/open?id=0B0bO1cR6ClJRblFpLXoycmRGYWc

Gross, S. J. (1986). Professional licensure and quality: the evidence: Cato Institute. https://drive.google.com/open?id=0B0bO1cR6ClJRMU9sYlpwR2xDcEE

Klein, A. L. (2016). Freedom to Pursue a Common Calling: Applying Intermediate Scrutiny to Occupational Licensing Statutes, The. Wash. & Lee L. Rev., 73, 411.https://drive.google.com/open?id=0B0bO1cR6ClJRU0p3Y2tmY3g4UzA

Kleiner, M. M. (2011). Occupational Licensing: Protecting the Public Interest or Protectionism? https://drive.google.com/open?id=0B0bO1cR6ClJRUmNCb1hDajJ0d3c

Kleiner, M. M. (2015). Reforming occupational licensing policies. The Hamilton Project. https://drive.google.com/open?id=0B0bO1cR6ClJRQ0RWSzEtSWYxWW8

Kry, R. (1999). Watchman for Truth: Professional Licensing and the First Amendment, The. Seattle UL Rev, 23, 885. https://drive.google.com/open?id=0B0bO1cR6ClJRazRRTS1IUjNITm8

Larkin Jr, P. J. (2016). Public Choice Theory and Occupational Licensing. Harv. JL & Pub. Pol’y, 39, 209. https://drive.google.com/open?id=0B0bO1cR6ClJRLUtSTWRtbW52QTQ

Potts, J. (2009). Open Occupations–Why work should be free. Economic Affairs, 29(1), 71–76. https://drive.google.com/open?id=0B0bO1cR6ClJRQUF6TGZRR1BKWU0

Program Evaluation Division North Carolina General Assembly. (2014). Occupational Licensing Agencies Should Not be Centralized, but Stronger Oversight is Needed: Final Report to the Joint Legislative Program Evaluation Oversight Committee. Report Number 2014-15. Raleigh, NC 27603-5925. Retrieved from Program Evaluation Division North Carolina General Assembly website: http://www.ncleg.net/PED/Reports/documents/OccLic/OccLic_Report.pdf https://drive.google.com/open?id=0B0bO1cR6ClJRaUo5ZnRtYmxySmc

Rose, J. (1979). Occupational Licensing: A Framework for Analysis. Ariz. St. LJ, 189. https://drive.google.com/open?id=0B0bO1cR6ClJRazJvbFI4aUtrUTA

Stephenson, E. F., & Wendt, E. E. (2009). Occupational licensing: scant treatment in labor texts. Econ Journal Watch, 6(2), 181–194. https://drive.google.com/open?id=0B0bO1cR6ClJRM0p1S0Uya050Q1E

[1] See Douglas Robert Briggs V. Board Of Medical Licensure And Discipline of The State of Delaware and this letter written by James L. Higgins with the law firm of Young Conaway Stargatt & Taylor, LLP  on behalf of two applicants initially denied licensure in Delaware (also to the Board Of Medical Licensure And Discipline of The State of Delaware). Taken together these two challenges confirm just how problematic the law was.

[2] For those who do not know, the requirement that acupuncturists be certified as practitioners of Oriental Medicine would mean that they also had to bear the additional costs of returning to school, writing additional examinations, and pay higher fees to maintain this certification.

[3] These alleged  benefits include promises of quality assurance (Stephenson and Wendt, 2009), reduction of threats to health and safety (Kleiner, 2015), correcting for “information asymmetries” (Larkin Jr, 2016), providing mechanisms of redress for incompetency, dishonesty or malpractice (Bryson and Kleiner, 2010) and a host of others discussed in these papers.

[4]“… the principal proponents of licensing laws are typically the occupational groups themselves” Kry (1999). See also Gellhorn (1976) “Licensing has only infrequently been imposed upon an occupation against its wishes” (p.11).

[5] Final Report Submitted to the Honorable Jack Markell Governor, State of Delaware-May 10, 2010: Review of the Earl Brian Bradley case by Linda L. Ammons, J.D., Associate Provost and Dean, University School of Law, 4601 Concord Pike, Wilmington, Delaware 19803

 

(This post reflects the opinions of the author and is not the work of The Acupuncture Observer.)