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.)

Copyright —

© Elaine Wolf Komarow and The Acupuncture Observer, 2013-2018. Unauthorized use and/or duplication of this material without express written permission from Elaine Wolf Komarow is prohibited. Excerpts and links are encouraged, provided that full and clear credit is given with specific direction to the original content.

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

  1. As an aside, I recently was hired by the Dept of the Army to practice acupuncture on a military installation. The job posting was originally advertised as a pay grade GS 12, which is comparable to supervisory RNs and Nurse Practitioners. That posting was pulled and re-posted as a pay grade GS 8, which is equivalent to a Health Technician/Admin Assistant. After I was hired I asked about the discrepancy based on my three state licenses, including NCCAOM certification, Master Degree, etc; I was told that because there is no national standard as there is for doctors and nurses that the position could be classed no higher than a GS 8, regardless of the amount of training or education I have. I’m not especially thrilled with the idea of a national standard but I’m also not thrilled to be considered on par to a Tech. There has to be some happy medium somewhere…Thanks for an interesting post.

    • Yes, Pam, I’d heard about this change in classification. I wonder,though, how much is due to the different standards for Acupuncturists and how much is due to the different standards for people who can do acupuncture. Either way, I think if we’d been on top of this we could have worked to prevent this regardless of the underlying explanation. I know there are people who are working on changing this, though I don’t know if any of those people are connected with our associations/organizations.

    • Hi Pam

      Thanks for reading the post. I am glad you found some aspects of it of interest. I am no expert on military or government pay grades so I doubt that I can help clarify anything. I worked for a number of years as a logistics officer in the Canadian Coast Guard–on the arctic class icebreaker CCGS Louis St. Laurent. The Canadian Coast Guard is not military it is department of Fisheries and Oceans (now Fisheries and Oceans Canada). There, “epaulettes” represent do not represent rank–they represent levels of responsibility and corresponding pay scales. All of this was rather arcane. I am assuming the GS (General Schedules) do something comparable. I also understand that within each increment of the general schedule there are multiple levels. I know that when I was in the CCG almost everyone thought they should earn more–I did too–but there is much to be said about a steady paycheck–even if it is less than we think we are worth. I do not have any idea how we would go about developing a ‘national standard’ for acupuncture. I surmise that the politics around the issue would be messy and a little bloody. Competency is very difficult to define (or measure) and we currently have no metrics that would allow us to make a determination. I am not sure what you are referencing when you talk about a “national standard” for doctors. Perhaps you are talking about the United States Medical Licensing Exam that you must pass after completing a medical residency. That is usually required before you can obtain a medical license. I am all for standards that actually measure something meaningful–something that results in better outcomes and fewer adverse outcomes for patients. The NCCAOM examination purports to do this. I don’t think this is a demonstrable claim–and many others agree. Evidently the US military does not agree either. So what would the happy medium be? I too would like to know. That discussion aside, I think there are very big problems with the way occupational licensing is handled and I also believe that alternatives could be worked out among reasonable people without personal agendas. The terrain of the topic has been well explored. As long as we find ourselves in an environment where protectionist behavior is considered reasonable we will make no progress at all. I would like to help more but I don’t know enough to suggest any strategy for moving forward. But I wish you success in your choice of career, and I sincerely thank you for posting. Acupuncturists–all of us–in every circumstance we find ourselves in–need to find a way to support each other at the individual and organizational level. Together we will accomplish much more than if we, for example, find ourselves fighting skirmishes in the salt marshes of Delaware. Thanks again.

  2. Hi Joseph, I apologize asking basic questions about the writer before venturing on a long reading. Unfortunately, too many times, folks wrote articles to eventually prove nothing and wasting reader’s time in the process.I want you to know that I just ended reading it. I live and practice in Washington state; issues may be different from Delaware; still the overall point whether to have licensure/registration is of great interest. When I practiced in Illinois, prior to being licensed, we were under the threat of being charged of practicing medicine without license. So something had to be done (workswith the AMA and get licensure in the books. On the other side of the spectrum, unless that has changed now, Wyoming acupuncturists could care less of having some state stamp of approval, like licensure. Beware of government, that is their motto, and I give them a lot of credit for that. One of the advantages of not having a license is that, you can practice many different form of medicines, homeopathy, herbs from all over the world, etc.
    Thanks to both of you for this stirring of conversation, and yes, Elaine, why not? more guest contributors?? Enjoy. Augusto

    • Thanks, Augusto. I’m always open to guest contributors. Forgive any defensiveness. Some of us who have been in the trenches for a while can get a bit touchy.

    • Hi Augusto

      Thank you for deciding to read the paper. I appreciate it—I really do. And I hope it will stimulate some thought and reflection in yourself and your colleagues. As I mentioned in my previous response—I have been ,in practice, for 35 years. If you do the math I should not have to tell you that I have practiced “outside the law” for the majority of my career. I will “plead the Fifth” on specific details. Many of us who have worked as acupuncturists for that long would have been willing to go to prison if it came to that. Few, if any of us, did. Personally-I never felt threatened at any point. I managed to build up a pretty stable practice by word of mouth so I never was in a position of having to ‘provoke the bull’ by advertising. I still don’t advertise. I believe that the ‘power of community’ is a much better regulator of competency, propriety, compassion, good workmanship, and common decency than any board or government agency. All of my referrals are from current or past clients.

      I certainly understand why many of us chose to pursue licensing as a way of protecting ourselves from prosecution. Personally-I never felt that licensing was the answer-but it was probably the obvious course to choose in the beginning. Now it is becoming quite clear that licensing itself has become a problem. If you have the time-go into some of the papers in my footnotes and references. They make the case far more eloquently, and in much greater detail, than I ever could given the constraints of this forum. I am happy that you are beginning to think about alternatives to licensing because I am convinced that we will have to find them—and sooner than we think. At very least licensing boards will have to start behaving and operating differently. There are government initiatives in many states now. They are beginning to consider whether or not the licensing of occupations is actually in the public interest or has, instead, served as a means of creating a complex of protectionist cartels. Our biggest threat is not “the government” but rather ourselves. We must start caring for, or at least respecting, each other. And we must actually meet our obligations to protect the public from whatever real threats that they face. We are out of time. Changes are coming and we had better be ready.

      Thank you so much for your input, and for caring enough to enter into this discussion.

      Regards,

      J.A.W.

  3. Before I read this long posts, who’s the author? President of state acu society? maybe on state board?
    Both at the top and bottom of this post, there is no political qualifications, besides being an acupuncturist.

    • The author is a long-time practitioner. He’s included lots of footnotes and sources. As a former President of my state Acupuncture Association and member of my State Board, I’ll say that I’m sure the author could be either one of those if he wanted to. And, at this time, DE doesn’t have a state association.

    • Thank you for your comment Romano. I am not quite sure how to respond. Let me begin by saying that if you do not think I am qualified to express the views contained in this post—there is no reason you should read it. For the record, I am now in my 35th year of practice. At one time or another I have been a member of a number of state and national associations. A few years back I withdrew from all of this after seeing that the ones with which I was familiar had political agendas that frequently worked against our collective best interests as practitioners. Frequently I have observed that associations within the same state sometimes work against each other on rather important issues and make progress all but impossible. This most commonly occurs when association or Board members also have conflicts of interest. I will not get into naming names. But I will say that this happens more commonly is generally perceived or acknowledged.

      I would hope to be judged based on the content of the post, and the strength of the arguments, rather than what a reader may assume about my background or qualifications–based on what credentials I may or may not possess. If you actually believe that not being an officer of a state or national association or a member of a state Board invalidates my arguments so be it. But let me point out that to present presumably adverse information (in this case no ‘political qualifications’) about someone in the context of reflecting on the merits of their position is an informal logical fallacy. It is called “Poisoning the Well” which is a type of ad hominem argument. On the other hand maybe you, like the rest of us, just have too much to assimilate and deal with in the course of a day. I am sorry that I could not be more concise—so please do not spend another moment on this. As for me, I believe that I can be more effective as a watchman than a soldier. In any case I wish you well and hope that you will have a long and gratifying career.

      • I appreciate knowing someone’s background. I also know that most state level acupuncture associations are in a position of needing to accept any willing body (or perhaps even not strongly unwilling body) for board service. I feel gratitude for those who are willing to service. And I no longer assume that service on a state association or regulatory board should be taken as a sign of wisdom or high standards.

        • Hi Elaine:

          While we are at this let me leave a public note of thanks for permitting this potentially controversial post to appear on your blog. I think we should all get credit for whatever work we do (formally or informally) on behalf of this profession. Neither finding agreement nor charting the right course are necessarily easy. Actually they are pretty damned difficult. But I believe we will all benefit by leaving the discussion open and welcoming well intended but dissenting views. I thank you for permitting this post and for the exemplary work you do on behalf of all of us.

          • Well, thank you, Joseph, for this post and for your work over the years. Our profession truly is filled with incredible, caring, intelligent, committed, experienced individuals. So it is sometimes hard to imagine how wrong we’ve gone in so many areas. Time and again I connect with people who were ready to step up and help and knew how to make things better, who ended up marginalized because their opinions weren’t politically popular. It’s what happened with the original legislation in DE, but that only scratches the surface. I suppose it’s not that different from national politics. Sadly.

  4. Thank you for this great article. I have just applied for an acupuncture license in DE.
    The application has not changed since the new law. Question 9 asks if I have a D.OM from NCCAOM. I have an M.Ac. So, I answered “no” and wrote in that I have an Dipl.Ac from NCCAOM. In answering no, the next question concerns training. Upon calling, the person I spoke with told me to send transcripts. This seems incorrect. I sent them anyway to cover my bases. (more money). And, I am licensed in D.C. which requires NCCAOM certification. We’ll see what happens. I am happy to serve in a State that seems to need us. Thanks again, tessler stromberg

    • Thank Mr. Wiper! As for the application — most of that is determined by regulation, which is a separate process from Legislation. I am hoping that the staff in DE will help move along the process of changing the regulation, or at least facilitate licensure for people who meet the legislative requirements while the regulations are being dealt with. Good luck!

      BTW, I never did hear whether the revised DC regulations were approved. The proposed regulations moved strongly in the direction of requiring the herbal credential for those who wanted to practice herbs — basically creating something like the tiered licensure in the DE law.

      • Exactly right Elaine. Everything in Delaware proceeds at a snail’s pace. The regulations and the associated paperwork will all have to change. And Good luck Tessler. The law has changed so as long as you have NCCAOM in acupuncture OR Oriental Medicine you will receive your license eventually. They only meet once every 3 months. If you have completed your application and it is now in their hands they have no excuse for denying you a license. Good luck and welcome to Delaware.

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