Licensure News

Finally! At the May 6th Delaware Board of Medicine meeting two experienced and NCCAOM-credentialed acupuncturists were granted Delaware licenses, bringing the number of the LAcs in the state to just under forty. This is good news for the people of Delaware. It is also good news for the profession as whole. And hopeful news for the practitioners who are now commuting to Maryland, or not practicing, because they were unable to obtain a Delaware license.

Why did it take action from the MD’s on the BOM to get these practitioners licensed?

These LAcs had appeared before the Acupuncture Advisory Board four times since applying for licensure in late 2012/early 2013. At several of these appearances the Acupuncture Advisory Board members acknowledged the applicants’ excellent qualifications but refused to grant licenses despite having the authority to do so.

For decades one of our “sacred cows” has been that we need our own boards. Then we’ll have the power to control our destiny. Sadly, when given the chance, some of us prefer to control our destiny right down the tubes.

Consider the history of the independent California Acupuncture Board, with its unique accreditation and exam process, and its ongoing problems. Or Nevada, with an independent board, 53 LAcs, a $1000 application fee and $700 per year renewal fee.  If Delaware had an independent board my colleagues would have had to go to the courts to present the argument (made by a public member of the Board of Medicine) that requiring an herbal education and exam for individuals who do not want to use herbs in their practice, in a state in which anyone can sell and recommend herbs, is restraint of trade.

It isn’t the M.D.’s and “the system” that is limiting the growth of our profession these days. It is other acupuncturists. I’ve asked and asked, but I have yet to find anyone who can explain why the Florida (independent) Acupuncture board is increasing the education and testing requirements for licensure. Have patients been harmed? If a change is needed are there options that would be less burdensome for the profession?

I’ll be interested to see the full minutes of the May 6th DE BOM meeting. In a classic conjunction of issues, a practitioner instrumental in drafting the restrictive Delaware law, and a current Acupuncture Board member who had voted against granting licenses to the two qualified acupuncturists, appeared before the BOM to ask them to do something to stop PT’s from doing dry needling.

Did either of these practitioners consider that their previous actions that limit the number of LAcs in Delaware increase the odds that citizens will seek treatment from non-LAcs? Or that our political power is limited by our small numbers? Did the BOM wonder what’s up with this profession — they don’t want anyone to use a needle, even other LAcs?  (FWIW, the BOM doesn’t regulate PT’s.)

You’d think that our own self-interest would prevent the credential and educational creep that costs us so much. But it hasn’t. The AMA Code of Medical Ethics states “A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.” Restrictive laws and rules that limit access to qualified acupuncturists are contrary to the best interests of patients. Let’s work for change – for the people who need acupuncture and the qualified individuals who want to provide acupuncture. Credential creep hurts us all.

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.

13 thoughts on “Licensure News

  1. The Delaware Acupuncture Law does specify conditions under which Acupuncture Detoxification Specialists may operate. Whether or not the licensing of these practitioners makes sense or not is arguable, and of course the requirement that they must meet the qualifications specified in the law to ensure “protection of the public” is debatable. For example you now may practice acupuncture detoxification in Delaware only if you are licensed as a provider and, in addition, hold another healthcare license.

    http://delcode.delaware.gov/title24/c017/sc10/index.shtml
    See especially § 1799F

    There is a wrinkle in all of this. Program Directors operating under the aegis of Division of Substance Abuse and Mental Health within TITLE 16 HEALTH AND SOCIAL SERVICES
    DELAWARE ADMINISTRATIVE CODE have discretion to include acupuncture as an alternative modality within their programs. They also have the discretion of determine the qualifications of providers within that program.

    5.1.7.5 Adjunctive and Alternative Therapies
    5.1.7.5.1 Every program utilizing any modalities of adjunct or alternative therapy shall ensure:
    5.1.7.5.1.1 Adjunctive or alternative therapies are approved by the program director or designee prior to utilization;
    5.1.7.5.1.2 Individuals providing the services of adjunctive or alternative therapies have received specific training and/or credentials applicable to each modality.
    5.1.7.6 All staff, trainees and volunteers shall receive training within the first year of employment about:
    5.1.7.6.1 Hepatitis;
    5.1.7.6.2 HIV/AIDS;
    5.1.7.6.3 Tuberculosis;

    It is not clear in this document that hiring licensed detoxification specialists would be require of program directors. I pointed this apparent problem out when this law was being written and in subsequent letters to the AAC. There has been no action or movement on this issue.

    So I can only say that it is not entirely accurate to say that detoxification specialists have been excluded. However there is a real question in my mind of whether or not the entities with controlling interest in acupuncture detoxification in Delaware really want to be more inclusive than the law presently permits. And of course there is an exemption clause written into the detox portion of the acupuncture law. I wonder how often exemptions have been granted?

    In case reading this has not inflicted enough punishment here is, with profuse apologies, all 42 pages of TITLE 16 HEALTH AND SOCIAL SERVICES DELAWARE ADMINISTRATIVE CODE, 6000 Division of Substance Abuse and Mental Health, 6001 Substance Abuse Facility Licensing Standards. Happy reading.

    http://dhss.delaware.gov/dsamh/files/adstannew.pdf

    Joseph Ashley Wiper

    • Thank you for the additional information. I should have known better than to take a stab at an answer without my usual obsessive research. (Which points up the problem of having all these unique rules with little hidden bits from state to state.)

      It’s so hard keeping up with the rules for LAcs that I don’t think I have room for figuring out the rules for ADS’s. It sure is a shame, though, that we’ve made it so complicated for people to receive this helpful treatment.

      • Here’s some links on the history of recent ADS issues around regulation in Delaware:

        First, the new legislation attempting to protect ADS, which was fought for by Mike Smith and supportive legislators in Delaware: http://www.nada-danmark.dk/artikler_og_baggrund/GUIDEPOINTS%20Sept2010.pdf

        This portion is edited into the acu advisory council statue and the regulations the state put on the council to govern ads: http://regulations.delaware.gov/register/december2009/final/13%20DE%20Reg%20858%2012-01-09.htm

        The current problems with ADS being regulated by acupuncturists could have been avoided. The acu advisory council refused to make an exemption (similar to how Virginia ADS is set up), as suggested by Mike Smith and the Delaware mental health community. Problems were foreseen and pointed out by ADSes in the state, as you can read in this hearing: http://regulations.delaware.gov/register/december2009/final/13%20DE%20Reg%20858%2012-01-09.htm

        When acupuncturists are more aware of the specifics in how their regulations affect ADS and access to treatment within recovery and community health settings, problems can actually be avoided like what have happened in Delaware and other acupuncturist efforts resulting in the absence of acudetox like NV, SC, NC, CA, HI, and beyond. Problems in these states arose came from well intentioned acupuncturists whom either didn’t take the time to learn about ADS or didn’t care.

        • Thanks so much for the additional info. Ryan. I suppose if we can’t get acupuncturists to care about the negative impact of their actions on other acupuncturists and their patients, we’re a long way from getting them to care about ADS’s and the people they serve. It’s pretty sad. I suspect the fear and upset around other health professionals using acupuncture needles with short training courses only adds to the problem.

          I look forward to a day when we can change the conversation back to a focus on providing more access to people.

          The outcome of this case before the Supreme Court— — should be closely watched by NADA.

  2. Thanks Elaine for pointing this out. The Delaware law has also near written acudetox off the map. As to where prior to this law Delaware ADSes worked within the state hospital system, now there’s just a few able to offer 5np. I fear that even with these changes in Delaware, however, the ADSes will yet be swept under the rug. It is sad to see such a disconnect, and such a powerless and isolated place LAcs have put themselves in. And such ignorance about how building bridges with other practitioners will actually help the acupuncture profession.

    • Ryan,

      NADA may have been mentioned in the legislation, but I don’t think ADS’s are regulated by the Acupuncture Advisory Council. Perhaps if the law is changed (and it sounded as though some on the BOM thought it was time for that to happen) there will be an opportunity for NADA to step in and make sure the ADS’s are protected.

  3. Hi Elaine

    I can’t tell you how delighted I am to see everything brought to this stage. This could be a monumental event in the history of the development of Chinese Medicine in the United States, if the argument that requiring herbal certification to practice acupuncture is in fact widely accepted as restraint of trade. If my reading of the proposed agenda for that meeting is correct the practitioners involved had to secure legal counsel, who presented a letter to the AAC at that meeting:
    http://egov.delaware.gov/pmc/Agenda/Download/23043

    I intend to make an FOIA request to receive a copy of that letter so that I may read the arguments made in support of their position. I was not aware that there was an individual member of the medical board who also voiced support so I, too, look forward to seeing the final minutes.
    As you may know this was only one of the many arguments I and my two apprentices made against this law before (and after) it was virtually imposed on all of us at the very last committee meeting before the bill was released. I have made these and other arguments in the form of letters written to the Acupuncture Advisory Council (AAC) at several of their meetings but these have been summarily ignored. I do not know whether it was greed, fear, or spinelessness that motivated acceptance of these restraints on our collective ability to practice in the jurisdiction of our choosing. We should not forget the contributions of the representative of the NCCAOM to this debacle. She argued at one key juncture in the debate that not requiring herbal certification (even if we all only wanted to practice acupuncture) could imperil the public, yet she presented no statistically significant data to support her argument. This law is bad for acupuncture, bad for acupuncturists, bad for the public, and just plain short sighted. But even given this small victory, there is still much work to do. Let us not forget what has been going on in New York for a number of years now. The so-called New York State Acupuncture Coalition (which is for the most part a coalition comprised of Herb companies, a few schools, boards, a number of associations with their own agendas, the NCCAOM, ACAOM, the AAOM etc.) have been arguing for institution of the herb requirement in law in New York State. A reading of some of the “letters of support” is interesting for its display of inane argumentation, bad reasoning, and spurious claims.
    http://www.nysacupuncture.org/NYSAC-SupportPacket.pdf

    The struggle continues.

    You should also know that the AAC has imposed rather restrictive continuing education constraints on all of us, making it difficult (if not impossible) to get approval for continuing education hours that have not been ‘approved’ by the NCCAOM. I think it is questionable that a certification agency can be involved in a process that is indistinguishable from accreditation (of continuing education events) without encountering significant conflict of interest. Despite promising to put an online link to a form that would expedite the approval of non-NCCAOM sanctioned events, many months have gone by and the form has not appeared. I requested this form because in my case over 15 months elapsed between when I made a request for approval of a continuing education event (having submitted all requested documentation) and when it was approved. And only after I greatly annoyed a Deputy Attorney General and the Executive Director of the Delaware Department of State Division of Professional Regulation for, I guess, expecting them to do their jobs.

    In any event I am delighted to see that things worked out this way in Delaware. But until laws of this type are actually replaced, not just in Delaware, but in every state, I am think any celebration is premature. Will the law actually be changed? Or will we succumb to the same small minded, fear driven, and petty instincts that have afflicted all of us? And will an argument made in one state have any effect in other states? Time will tell.

    Joseph Ashley Wiper

    • Thanks so much for your response, and for the resources you shared. It may be possible for you to get the letter of the legal arguments without going through a FOIA request. I’ll pass your interest along to the parties involved.

      I’ll add that I heard that at least one of the BOM members also said something along the lines of — it’s time to change this law. I don’t have an exact quote, but the sense I get is that the BOM would be amenable to a change at this point in time.

      I am aware of the situation in New York and am distressed that we don’t seem to learn. I would think that the lack of growth within the profession would get some of the folks pushing for the change to back off. If folks stop going into the profession — and I suspect that is already happening, the schools will be hoisted by their own petard.

      I am no fan of the NCCAOM control over the CEU market. They require the hours, require us to pay to verify the hours, require the presenters to pay to get approved to teach the classes, and so on. It works out very well for them, certainly. I’ll see if I can get anyone over there to post the form you mentioned.

      • The restraint of trade argument was actually, I believe, related to the fact that practitioners already practicing IN DELAWARE at the time the new regulations were put into place were allowed to receive licenses (ie grandfathering), but those practicing OUTSIDE OF DELAWARE at the time of the new regulations have NOT been allowed to be licensed. The phrase “restraint of trade” was used by a public member of the Board of Medicine and not in any legal argument that was made by the attorney for applicants or the applicants themselves. Since the Board of Medicine’s decision was made at a meeting and not a hearing, there is no official transcript and I am not sure the Minutes will have a lot of detail. The Minutes should be approved at the next BOM meeting in June and then will be posted on-line through the State of Delaware for anyone interested.

        • Thanks for the clarification. Sorry about the error. I think one could make the argument that the term could apply to either situation — you’ve got regulations that are limiting competition. And thank you for clarifying how it came up in this instance. Although the lawyer didn’t use the term “restraint of trade” he did argue that the council’s orders did discriminate against practitioners outside of Delaware — so along the same lines as what the public member was saying.

          I’ll post the minutes when they are available.

    • FWIW, I hear from the parties involved that the folks on the Board staff and from the AG’s office were respectful and professional throughout this current licensure matter.

  4. Great news for the 2 Acupuncturists. I know they were solid and also have experience where Acupuncture Board members are the issue, not “the Establishment.” Obstruction often seems to be the norm. Hard to nail down motives, but the obvious ones that come to mind are the usual fear regarding turf. Small thinking harms everyone, especially the thinker, but most importantly the profession and the public. We say we want more clients, better opportunities and we consistently work against that. I ask myself daily, what service would be useful to those around me? Usually that service is aligned with my own best interests.

    • It is great news — though it is a shame that it took 18 months, many trips to Delaware, etc. And throughout the process we’ve heard from other practitioners who live or lived in Delaware — but gave up on ever practicing there.

      In this case, I think you had a strong personality on the board who had a strong personal belief that acupuncture should look one way — it should involve herbs and that it was his mission to make sure that full herbal training was required for anyone to practice Acupuncture. Unfortunately, her was in a position to impose that belief on everyone, and did not seem to understand the consequences of imposing that belief — on experienced acupuncturists and potential clients alike.

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