Success is Accessible!

When choosing or upgrading your office there is one consideration that will have a profound impact. Prioritizing it will help you —

  • retain clients for decades
  • appeal to clients who need your services regularly
  • decrease the need to make house calls
  • contract with insurance companies
  • participate in federal programs (such as Veterans Choice and ACA plans)
  • gain respect and referrals from other health care providers
  • keep your office in one location for the duration of your career
  • reduce legal threats
  • minimize workplace injuries to you and your staff
  • comply with civil rights law.

It’s a win, win, win, win, win, win, win,win, win, win.

That consideration is compliance with the Americans with Disabilities Act of 1990 (ADA), a federal civil rights law that prohibits discrimination against individuals with disabilities in every day activities, including medical services. Any private entity that owns, leases or leases to, or operates a place of public accommodation (that includes your office) is responsible for complying with Title III of the ADA. (Source – DOJ/HHS Publication)

19% of the US population reported having a disability in the 2010 census.

If you are blessed with good client retention and a lengthy career your patient population is likely to increasingly include those with disabilities. You might develop your own temporary, or permanent, mobility issues.

Acupuncture schools need to teach students about our responsibilities under the ADA. Ethics classes should address the de facto discrimination that occurs when we choose inaccessible work spaces. And, when practitioners seek advice from peers about potential office arrangements, renovations, or accommodations (such as interpreters) emphasis should be on the legal, ethical, and practical benefits of compliance. Preemptive absolution is offered too often, especially by those who don’t understand the law.

The ADA does include exemptions to protect small businesses from accommodations that would be an “undue burden.” Is a $2,000 lift table an undue burden? How much have you spent on Biomats, lasers, tuning forks, and travel to conferences? Rent for a first floor office might be more, but house calls also affect your bottom line. (If you rely on house calls to comply with the ADA requirements for accessibility, remember: you can’t charge more, you must offer the same level of service, you have to offer flexible scheduling as you would to your in-office clients, and, if you are accepting new clients it is discrimination not to accept those whose disability would make your office inaccessible.)

It’s true, individual practitioners who don’t comply are unlikely to suffer legal consequences and many Practices flourish despite a lack of accessibility.

“Getting away” with not complying is no way to run a business or a health care profession. Doing all we can to meet the needs of those with disabilities is good business, good for the profession, and good for the public. It should be a top priority.

Here are some resources to help you understand the ADA and our responsibilities —

Access to Medical Care for Individuals with Mobility Disabilities

Americans with Disabilities Act Title III Regulations

Title III Highlights

ADA Q & A for Health Care Providers

ADA Checklist for Existing Facilities

ADA and Small Businesses

NPR Story about Accessing Care for People with Disabilities

Post on California Law impacting Lease negotiations

ADA Enforcement Activities

ADA in a Health Care Context

ADA for Deaf and Hard of Hearing

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.)

Growing Opportunities for Acupuncturists

The Acupuncture Observer is still working to bring you the latest news relevant to the profession, despite the summer lull in posts.

BLS Code:  After years of effort, Acupuncturists will have a distinct Standard Occupational Code in the 2018 Bureau of Labor Statistics Occupational Handbook. The announcements have repeated the enthusiastic claims that accompanied the multi-year effort to make it happen —

 “Earning a distinct Standard Occupational Code for Acupuncturists is a milestone moment for the acupuncture and Oriental medicine profession. This event positions acupuncturists for a number of new opportunities,” said Kory Ward-Cook, Ph.D., CAE, chief executive officer of NCCAOM. “The classification of ‘Acupuncturists’ as its own federally-recognized labor category both validates and bolsters the profession and positions the industry for growth.”

Data is good. A unique code will distinguish acupuncture as a profession from acupuncture as a modality, and may make it easier to be included in certain state and federal programs. And yet, as far as I know, the only direct outcome of this accomplishment is that soon there will be a report like this for the profession of Acupuncture. Will the data encourage people to enter the field? Will it justify the cost of an Acupuncture Degree? Will it provide evidence that would support increased reimbursement rates? I’m not so sure. Self-employed folks aren’t included these reports and I’ve been unable to determine whether the category will be based on education, license, or just whatever your employer decides.

Like some of our past accomplishments (student loans for Acupuncture School and insurance coverage for acupuncture) the outcome may be a bit more complicated than expected. I’d love to hear more specifics about what we can expect from those who led the effort.

Delaware: No herbal credential? For years that meant you couldn’t be licensed in Delaware, even if you had no interest in using herbs in your practice. On July 19th Governor Markell signed into law HB 387 creating tiered licensing. The law also limits the use of the term “oriental,” eliminates some requirements for ADS’s, and removes the grandfathering provisions. It’s not the best bill text I’ve ever read, but it’s a wonderful improvement over the previous situation. It’s terrific that the Delaware Board of Medicine supported increasing access to acupuncture.This is one example of a jurisdiction where the BOM has been more welcoming to Acupuncturists than the LAcs serving on the Council.

Nevada: Yes, Nevada is another state where the (independent) Acupuncture Board has seemed intent on keeping practitioners out of the state. That explains why the state that had licensure first has so few practitioners. Now it seems that things may be taking a turn for the better. The Nevada Board of Oriental Medicine has had a change in membership. Fingers crossed that this will be the start of a new era with increased access to Acupuncture (and related therapies) for the people of Nevada.

 

I’ll count Delaware as a solid win — increased opportunities for Acupuncturists and increased access for the public. The change in Nevada should be a change for the better, though time will tell. As for our unique SOC, I’ll be interested to see what that changes.

I still expect to write about the The Acupuncture Observer and Facebook fiasco. In the meantime, please share this post on AOF and with others who might be interested. And please let me know of any acupuncture news. In the meantime, enjoy these last days of summer.

 

 

Current Events for Acupuncturists, Spring 2016

Regulatory activity, licensure laws, and organizational news impacting LAcs –

Regulatory and Legal Round-Up:

In April the Washington State AG determined that Dry Needling was not within PT scope as currently written. The legislative session ended without success for either of  two competing bills to add DN to or restrict DN from PT scope. This fight is likely to continue in future sessions.

The North Carolina Acupuncture Licensing Board’s lawsuit against PT Dry Needling was dismissed  “without prejudice” on April 26th with a ruling that the NCALB has not exhausted its administrative remedies and so the Court lacks subject matter jurisdiction. A member of the NCALB distributed an email blast disagreeing with the ruling that seemed to have been written prior to reading the opinion. The NCALB (and anyone else crying foul) should study the Court’s ruling before pursuing the legal battle (and asking for money to fund it).

On May 9th the Texas Attorney General issued an opinion that the Court would likely conclude that the Board of Physical Therapy Examiners has the authority to determine that trigger point dry needling is within the scope of Physical Therapy.

The Virginia Board of Physical Therapy moved forward with regulatory language regarding Dry Needling. The proposed language (which will still go through a public comment period) specifies topics to be covered in the training but not required hours of training. Did the ongoing battle over number of hours in other states play a role?

A rare area of national bipartisan agreement is that Occupational Licensing has gotten out of hand. The right dislikes the burden it places on business, the left dislikes the burden it places on the working class. Add last year’s Supreme Court ruling regarding regulatory boards, and we should expect ongoing efforts to ease licensure routes and to diminish the power of active market participants on regulatory boards.

For example, the Governor of Tennessee (R) just signed The Right to Earn a Living Act, which requires agencies to limit entry requirements to those that are necessary to protect the public, and makes it easy for anyone to challenge professional entry regulations. The Governor of Delaware (D) has created a Regulatory Review Commission to review professional regulations. A North Carolina bill to disband many regulatory boards (including the NCALB) was defeated this session, but it won’t be the last we see of such efforts. (No, the PT’s had nothing to do with the bill.)

Licensure Laws:

KsAOM’s hard work paid off. The Kansas Acupuncture Act became law and licensure will begin in July 2017. The final language was a compromise that includes dry needling within both PT and LAc scope after the initial DN language almost derailed the bill. You can see the text here (see pages 11-17).

The Delaware AAC’s unwillingness to waive the requirement for all LAcs to have full herbal credentialing, even for those uninterested in prescribing herbs, has been an ongoing problem. Legislation has now been introduced which would create tiered licensing (and remove the word Oriental from the law). Tiered licensing puts acupuncture-only practitioners at a disadvantage to all other health care providers, but would nonetheless be an improvement.

Other News:

Last, but not least, CCAOM has voted to remove Oriental from the name of the organization. No word yet on the new name.

 

The Acupuncture Observer aims to inform all Acupuncturists of developments in the profession. Fallout from the previous Observer post leaves me without access to several of the newsiest FB groups. I’ll say more about that in a few weeks. In the meantime, if you know of news that deserves to be heard, let TAO know and I’ll get the word out. And, please, share this post with any groups, on Facebook and elsewhere, that could benefit.

 

 

Acupuncture Exceptionalism

American Exceptionalism is the idea that The United States of America is inherently different from other nations. That our founding and background gives the US a unique mission to transform the world and a superiority over all of other nations.

I’ve recently noticed that practitioners of Chinese/East Asian Medicine have their own version of this, which I call Acupuncture Exceptionalism.

The attitude of exceptionalism skews the interpretation of events. Our own actions are given the benefit of the doubt and ascribed to the best of intentions. The actions of others are considered with a critical eye.

Some examples of Acupuncture Exceptionalism:

We regularly advise clients regarding vaccinations, pharmaceuticals, procedures, and dietary plans suggested by other health care providers. When other providers advise about acupuncture and herbs we are outraged at their presumption.

We widely share studies and news reporting positive results from acupuncture treatment. Studies and news showing a negative outcome are dismissed because “they aren’t doing it right” or didn’t tell the whole story.

When a patient reports harm from “Western medicine” or a treatment done by a non-LAc we rant about the failings of the system or the provider. When a patient reports harm after a treatment provided by an Acupuncturist we find ways to deny that harm occurred, find another cause for the situation, or place responsibility on the patient.

We encourage patients who have been harmed by dry needling to report it to the authorities, and if they won’t we will. We are shocked and angry when a patient files a formal complaint pertaining to treatment received from an Acupuncturist.

We complain that PT’s are engaging in insurance fraud by using the Manual Therapy code for Dry Needling. We justify the use of pain codes for every client, because, well, everyone has pain and, after all, the system is stacked against us.

We are furious that other professions are using “our” medicine, especially without what we determine to be appropriate training. We add homeopathy to our scope without a second thought.

We support and celebrate a lawsuit filed against a PT Regulatory Board as an appropriate defense of our profession. We are outraged when a counter-suit is filed against our board.

 

An attitude of American Exceptionalism does not increase the standing of the US in the eyes of the world. You can’t learn from mistakes when they are denied or explained away. Hypocrisy and double-standards impress no one.

Likewise, Acupuncture Exceptionalism does a disservice to our medicine and to our future as health care providers. If our medicine is powerful enough to help people, it is powerful enough to cause harm. Denying risk puts our patients and our profession at risk. Dismissing valid concerns about acupuncture and herbs from other professionals prevents us from establishing collaborative and respectful connections. If we want to improve our skills and training and service, we must take a clear-eyed look at where we are succeeding and where we could do better.

I’m confident enough about the benefits and overall safety of this medicine that I’m not afraid of looking inward with a critical eye. Are you?

 

 

Acupuncture News

We lack a national news source for the profession and so we are often in the dark about the forces shaping our future.

Here is some state-level news with national implications —

California: 

In January 2016 the NGAOM joined with CAOMA and nearly advanced AB758. This would have overturned last year’s legislation which moved California to the industry standard of ACAOM school accreditation rather than depending on the troubled CAB.

Connecticut:

The NGAOM successfully fought for legislation mandating Malpractice Insurance for all LAcs. Practitioners in CT report this was done without consultation with the state association. Malpractice insurance is a significant expense, and a needless one for licensees not in active practice.This new requirement doesn’t seem to benefit anyone other than insurance companies and the NGAOM (which gains members through discounted coverage) despite the NGAOM’s pro arguments.

Delaware:

Regular readers know that the DE Acupuncture Advisory Council has generally refused to use their waiver power to license practitioners lacking the full NCCAOM herbal credential. The BOM knows that depriving the public of qualified practitioners is not a public service and is proceeding with draft legislation (text not yet available) that would establish tiered licensure. While it’s not the best solution, it’s an improvement. New Council members are taking their seats in the next few months. Let’s hope we can all work together to grow the profession in Delaware.

Nevada:

The Nevada Board continues to push for an increase in educational requirements far beyond the Masters level. Having again ignored the advice of Nevada’s Deputy Attorney General they are now moving to hire their own counsel, perhaps explaining why Nevada’s fees are the highest in the country.

 

Acupuncture Today didn’t just miss these important news items, history shows AT is willing to selectively hide some developments within the profession.

After a series of well-received columns in 2007 author Lisa Rohleder received a letter from Executive Editor Crownfield — “After several conversations with my publisher and others, we are concerned about continuing your column under its current “theme”, for lack of a better word. While the concept of social entrepreneurship, particularly the “pay according to what you can afford” aspect, is admirable, it has dangerous potential from the perspective of professional advancement.” Yes, AT considered affordable acupuncture dangerous. (The ideas did have potential. The ideas Lisa presented developed into POCA. POCA has established a school, helped clinics provide millions of treatments, helped practitioners establish successful businesses, and provided free CEU’s and many other benefits, to members.)

The Acupuncture Observer may change a bit over the next few months. But until the profession develops a reliable source for news delivered in a timely fashion, TAO will do what it can to keep you in the know. Let’s keep each other informed. Are you aware of news of importance to Acupuncturists? Is there regulation that could keep Acupuncturists from practicing in your state? Is a group pushing for change that seems detrimental to the practice environment?  Email editor@theacupunctureobserver.com with your news. Let me know if you’d like to write a guest post. And subscribe to TAO (box on the upper right of the home page, your address will not be shared or sold) for news updates.

 

 

Dry Needling and Acupuncture 2015 – The State of the Profession

Dry Needling wins again – it receives “the greatest threat to the profession” practitioner’s choice award.

In recent years, Acupuncturists have devoted more resources to this issue than to any other.

A (fairly accurate) review of legal and regulatory actions shows that we’re not having much success. (Here’s another review, APTA’s Dry Needling Resource Paper.)

Even our wins have been temporary. For example –

– the Georgia Acupuncture Board added language stating that Dry Needling is acupuncture. The PT’s then added Dry Needling to their scope via legislation. (Could Georgia PT’s now advertise they’re doing acupuncture?)

– the October 2014 ruling in Washington State against dry needling was widely celebrated. Now the PT’s have introduced bills which would add Dry Needling to their scope. With almost 5,000 PT’s in the state, and about 1,100 LAcs, it’s likely they’ll eventually succeed.

We say the PT’s:

  • are stealing our medicine! (But we don’t own it.)
  • are illegally expanding their scope. (The majority of states have ruled it is in the PT scope. Modifications to scope are common in health care.)
  • are using Regulation to do what should be done Legislatively. (Scope clarification is often done via Regulation, which gives the public and other professionals the opportunity to weigh in and is preferable to politically driven legislative action. The public is protected through regulation. The PT’s have been successful in passing Legislation allowing dry needling.)
  • are pursuing this because their own techniques don’t work. (Even if true, 1) why does that matter, and 2) does the argument apply to us when we add techniques lasers, essential oils, e-stim, herbs –  to our scope?)
  • can’t possibly know enough to do this technique safely. (Many clearly do.)
  • can’t possibly be providing good treatments. (Their patients disagree.)
  • wrongly say that dry needling isn’t acupuncture. (Is it better if they say it is? Is there a legal reason our definition should prevail?)
  • make the public fear acupuncture. (Insisting this technique is acupuncture will contribute to the problem. Don’t we have the same problem when we use the technique?)
  • should use hypodermic needles. (Does that show concern for public safety?)

We can continue the fight to stop dry needling – getting caught in the cycle of suit (complaint) (never-mind the SCOTUS ruling) and counter-suit (NC PT lawsuit). We can fight state by state, and attack any Acupuncturist who suggests anything other than “the PT’s must be stopped.” We can keep insisting that if we just devote more resources and fight harder, we’ll win.

Or, we can learn from our history and the history of all of the other professions that have fought to maintain a monopoly on technique or turf.

We could be fighting for strong regulations. Mandated adverse effect reporting, strict definitions of what dry needling is and what it isn’t (other than whether or not it is acupuncture), requiring direct supervision for all clinical hours, requiring PT’s to post their hours of training, requiring registration with the PT Board, requiring physician referral for dry needling – all of these are possible.

A PR campaign promoting acupuncture and helping the public find an Acupuncturist? That’s possible too. Supporting ease of licensure so that people in every state can find an LAc? We can work for that. Support for new practitioners so that the public can actually find an Acupuncturist? That’s a great goal. Building collaborative relationships with other professionals who want to decrease pain and suffering? That would serve everyone.

Putting our energy into stopping dry needling? Not so much. It’s our obsession with stopping dry needling that is the greatest threat to the profession.

 

 

Acupuncture Education 2015 – The State of the Profession

If we want people who want acupuncture to receive it from an Acupuncturist, acupuncture education deserves our attention.

There aren’t good statistics on how many Acupuncturists or acupuncture students there are in the US. But those handy maps printed in Acupuncture Today can give us some idea. The December 2013 issue (with an article on AT’s unprecedented growth) showed 24,342 Acupuncturist and 3,124 student issues mailed. In December 2015 – 24,231 Acupuncturist and 2,624 student issues mailed. That’s not growth. The 2014 NCCAOM Annual Report (the most recent available) also reveals – we are not a growing profession.

There is a lot of churn in Acupuncture education — schools close, schools open, programs merge, new degree programs are established. New Gainful employment rules adopted in late 2014 may well contribute to that churn. They require for-profit schools (about 50% of acupuncture programs) to provide at least some debt and jobs data to prospective students.

Small class sizes can skew the data. Still, check out these reports (selected because they came up first in Google): Emperors, ACAOM (the school not the agency), Arizona School of AOM, Midwest, AIAM, and Colorado School of TCM.

Only two schools reported job placement, at 50% and 67%. Median loan amount (omitting a 1.5 million figure given by Midwest that must be a mistake) ranged from 17K to 72K. A real eye opener was the percentage of students completing the program in the expected time frame. The average across all 6 programs was 55%. Omit the 100% reported by Arizona, currently on probation with ACAOM (the agency), and it’s 46%.

It’s not encouraging. Add student uncertainty that the degree they obtain will enable them to practice and it is no surprise our profession isn’t growing.

Imagine if we could tell prospective practitioners –  “A Master’s Degree in Acupuncture from any ACAOM accredited program will fulfill the educational requirements to practice in any state.”

I may not love the ACAOM standards but I’ll accept them to help the profession. Is there a downside to offset the upside?

NGAOM you have a stated goal of establishing uniform standards, yet are fighting to keep California schools out of the ACAOM system. Please explain.

We had some significant losses in Acupuncture education in 2015.

Spring brought news that Dianne Connolly and Bob and Susan Duggan would no longer teach or be part of the program at MUIH (which Bob and Dianne founded in 1974 as The Maryland College of Chinese Acupuncture). Bob and Dianne are part of the foundation of this medicine in the US. They profoundly influenced my acupuncture journey and it is a significant loss that they won’t be part of every MUIH student’s education. I am glad they are continuing to teach and share their wisdom in other settings.

Bob Duggan played an integral role in establishing acupuncture standards, credentials, agencies, and commissions. His goal in so doing was to enable this safe and effective medicine to be legally available to more people. He shared in a personal communication his ambivalence at how things turned out – that though his work enabled so many people to be healers and to be healed, “If I had real courage I’d have gone to jail and insisted this was the people’s medicine and we shouldn’t allow it to be professionalized.”

2015 closed with another loss, the death of Dr. Richard Teh-Fu Tan. Dr. Tan was an excellent teacher, deeply committed to teaching. Directly, and through his students, he eased the suffering of countless patients. Dr. Tan made no secret of his doubts about the caliber of acupuncture education most of his students received in their degree programs. Many seminar attendees reported learning more about effective acupuncture in four days with Dr. Tan than in four years of acupuncture school.

Attention must be paid.

 

 

 

 

 

 

Acupuncture Organizations 2015 – State of the Profession

The 40ish days between January 1st and the Lunar New Year are perfect for reviewing the past year and preparing for the next year. What worked, what didn’t? What direction will we go in when the days warm, the yang rises, and we spring forward?

There is much to consider when evaluating our practices and our profession. To understand how it all fits together we need to dive into the weeds. It’s going to take a few posts, but it will be shorter than the tax code!

Associations/Organizations/Guilds —

AAAOM (The American Association of Acupuncture and Oriental Medicine): Historically, our national professional association. And, historically may be all. The website shows no action items since 3/13/14, and no President’s blog post since 10/9/14. Is there anybody there? Is the AAAOM still alive?

ACAOM (The Accreditation Commission for Acupuncture and Oriental Medicine: Graduation from ACAOM-accredited schools is a requirement in many states. 2015 ended with an announcement of a Degree Titles and Designation Project. This should be interesting – there are already graduates of and students in the existing range of programs and there are widely varying state rules. Better late than never? (Wouldn’t it be easier for the public if we were all Acupuncturists?)

ANF(Acupuncture Now Foundation): Finally, there is an international charitable organization dedicated to educating the public, other health care providers, and those who work in health care policy. For too long we’ve relied on piecemeal efforts to educate others.The ANF is just getting started and needs our support to provide a visible, accessible and positive message about who we are and what we do.

ASA(American Society of Acupuncturists): This non-profit collaboration of state associations launched in 2015. The ASA has potential, and challenges. One challenge – “six degrees of separation” between individual practitioners and the group. A planned website should help bridge the gap. Of greater concern – at the state level, the ASA defers to the preferences of the state association. If an ASA-member state association supports a law or regulation that serves its current members to the detriment of all other LAcs, too bad, so sad for the profession as a whole. There are good people involved with this group so I remain cautiously optimistic. I hope that, before too long, the member groups will see that a victory that disadvantages other Acupuncturists isn’t a win.

CCAOM (Council of College of Acupuncture and Oriental Medicine): The membership association for schools and colleges of AOM with ACAOM accredition or candidate status. They administer the NCCAOM required CNT course, and released an updated (available free!) CNT manual this month.

IHPC (Integrative Health Policy Consortium): The IHPC “advocates for an integrative healthcare system with equal access to the full range of health-oriented, person-centered, regulated healthcare professionals” and has been working to build enforcement of Section 2706 of the ACA to end insurer discrimination against classes of licensed health professionals working within their scope. I don’t know of any LAc that doesn’t support this group’s mission, so it is odd that many LAcs support legislation that would create this sort of discrimination.

NCASI (National Center for Acupuncture Safety and Integrity): One individual? Silent for many months now.

NCCAOM (National Commission for the Certification of Acupuncture and Oriental Medicine): The NCCAOM “validates entry-level competency in the practice of AOM through professional certification.” Their vision is that AOM “provided by NCCAOM credentialed practitioners will be integral to healthcare and accessible to all members of the public.” They are powerful, organized, effective, and better funded than any other acupuncture group. They have had a major role in the path to licensure in many states. However, if you are not an NCCAOM diplomate, feel that the credentialing process is out of hand, and/or if you value traditions other than TCM, the NCCAOM is probably working against your interests.

NGAOM (The National Guild of Acupuncture and Oriental Medicine): A professional medical society organized as a guild under the OPEIU, affiliated with the AFL-CIO. The NGAOM list of 13 VP’s includes the VP, Immediate Past President,Treasurer and one additional board member of the AAAOM and following in that tradition there is significant mystery around their membership and their decision-making process. They want the profession of acupuncture to be more like other health professions. Many LAcs affected by their work aren’t pleased with the consequences. You’ll learn more in upcoming posts.

POCA (The People’s Organization of Community Acupuncture): Mission — “to work cooperatively to increase accessibility to and availability of affordable group acupuncture treatments.” 708 Punk (Acupuncturist) members, 138 clinic memberships, and 1348 patient members. Minutes of meetings posted in their forums, 8 free CEU’s for practitioner members, loads of member support, and a school (POCA Tech) working towards ACAOM accreditation and currently accepting applications for the third cohort of students. This is a successful acupuncture organization.

State regulatory boards are not professional organizations or associations. Their mission is to protect the public, not promote licensees.

An exploration of acupuncture education, events in the states, legislation and regulation, and other items of interest, including more about these organizations, will be coming soon.

 

Act Now – Help the Acupuncture Profession With Sensible Regulation

We have a little more than a week to influence regulations that will impact our profession. The regulatory and legislative process typically includes long periods of incremental movement suddenly replaced by small windows of major activity. One of those windows is open in the District of Columbia, but only until December 26th.

The proposed regulations are especially important because Washington DC is the seat of our Federal Government. If Acupuncturists hope to influence policy at that level we’ll need a strong community of practitioners, the more experienced the better, ready to serve in our governmental agencies.

The good news is that a small group of practitioners worked diligently to move the regulatory activity in a positive direction over the past three years. The bad news is that amidst the positive proposed changes are a few problematic sections. The additional bad news is that we are now late in the process. But maybe not too late. It would be good for the profession and for individual practitioners if we were able to correct those problematic sections. Let’s try.

You can see the text of the new regulations here. Comment by clicking on the blue “Make Comment” box at the bottom of the page (the tab at the top doesn’t seem to work). The comment form will only accept 500 characters, which meant a boatload of editing and three separate comments for me. Feel free to borrow my Three Issues DC2 language for your comments.

In addition, I’ve sent this Dear NCCAOM letter to Mina Larson, (MLarson@thenccaom.org) and Kory Ward-Cook (kwardcook@thenccaom.org) asking for their assistance. Again, the more letters the better. Feel free to use my letter as a template.

Remember, a regulatory change anywhere sets a precedent for changes everywhere. If we want people to get their acupuncture from LAcs, we need to remove obstacles to licensure. Please submit comments and share this post with other’s who would like to weigh in. It doesn’t cost anything except a little bit of time. Imagine what we could do if we took the energy and funds used to battle other professions and focused more on improving our own situation.

I limited my comments to the issues I consider most problematic and easiest to correct.

As I discussed in this post, these regulations will impact us all. Some of our colleagues thought it best to keep these proposed changes from the greater community, and that’s a shame. We need to be in the loop. The more we know, the more we can do to bring about positive change.