Legislation and Regulation

The distinction is important.  Examples are below.  It’s a long post, but worth it! (Let me know of any errors. I am happy to stand corrected.)

Legislation is written law, enacted by the legislature (or the process by which that happens).

There are differences in the legislative process from state to state and at the federal level, but, in general, a bill will need to be approved by committees and then both branches of the legislature to become law. Amendments can be added at various points. The Chief Executive (President or Governor) can veto legislation, the legislature can override a veto. Some states have short legislative sessions. (Virginia’s are 60-90 days.) If a bill doesn’t make it through the process in one session, it will need to start from scratch in the next session. This means that legislative action can happen quickly — within the course of a week or two, or, seemingly very slowly, when the same bill is introduced session after session.

The legislative process can be messy. Laws can end up being maddeningly specific, or, maddeningly non-specific.

Regulations are issued by an agency or department to help carry out the intent of legislation. Regulatory agencies are typically part of the Executive branch of government. Again, the regulatory process will vary from state to state and is different (and far more complex) at the Federal level. This chart shows the path of one type (there are others, like a fast track review, a periodic review, etc., with different time-frames and processes) of regulatory review in Virginia .The regulatory process moves in a controlled fashion. There are many opportunities for public input.

While a regulation can carry the force of law, they can be changed without going through the legislative process.  Regulations must follow the intent of the law.

It is critical to know what is Law (the Code) and what is Regulation.

For example, a common complaint of acupuncturists in Virginia is the requirement that patients sign this form recommending an examination by a physician. Practitioners often demand the Advisory Board (part of the Regulatory system) drop this requirement. However, Virginia law reads:

The regulations shall at a minimum require that, prior to performing acupuncture, any acupuncturist who is not licensed to practice medicine, osteopathy, chiropractic or podiatry shall either (i) obtain written documentation that the patient had received a diagnostic examination from a licensed practitioner of medicine, osteopathy, chiropractic or podiatry with regard to the ailment or condition to be treated or (ii) provide to the patient a written recommendation for such a diagnostic examination.

(This is an improvement over the original law requiring a referral from a physician.) The regulatory process could modify the specific form used, but legislative change would be necessary to eliminate the requirement. It is unproductive to bug the Board about the law.

In another example, the Virginia licensing law contains this language

§ 54.1-2956.10. Requisite training and educational achievements of acupuncturists.

The Board shall establish a testing program to determine the training and educational achievements of acupuncturists, or the Board may accept other evidence such as successful completion of a national certification examination, experience, or completion of an approved training program in lieu of testing and shall establish this as a prerequisite for approval of the licensee’s application.

The Virginia Regulations specify the NCCAOM credential as a prerequisite for licensure. The regulatory process could develop a different path, which did not include the NCCAOM credential, without any legislative action.

Before you follow the GPS commands telling you to sign the petition, write your legislator, or complain to your board — Look at a map! Are you talking to the right people? Do you understand the process necessary to make the change?

Also –

  • Regulatory Boards for Health Professions regulate licensees, not modalities per se. Acupuncture Boards do not control Physical Therapists. A board may initiate dialogue or express their opinion, but has no jurisdiction over other professions.
  • Acupuncturists have long believed independent boards lead to better practice environments compared to functioning under a Board of Medicine. The only consistent difference I have found is that licensing fees are higher in states with independent boards. Generally, Boards of Medicine defer to their Advisory Boards.
  • A legislative scope of practice is unlikely to include every modality and procedure used by a profession. Just because something isn’t in your written scope doesn’t mean it isn’t in your scope.

Copyright —

© Elaine Wolf Komarow and The Acupuncture Observer, 2013-2017. 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.