Scope of Practice. We use the phrase often. However, the term does not, as Inigo Montoyo would say, mean what you think it means.
When a jurisdiction determines that a particular profession should be licensed, it defines a range of activities that it considers to be a part of that profession.That is what we think of as the scope of practice.
For a super-great exploration of scope of practice I strongly, strongly, urge you to read this and this. Based on these sources, my own experience on a regulatory board, and additional reading and experience —
- Scope does not give a profession a monopoly or a copyright. Scopes overlap. Convincing the public that TPDN is acupuncture will not prevent PT’s and other professionals from adding the technique to their scope.
- Something does not have to be formally listed within a profession’s scope to be legally used by licensees. It is not necessary to legislatively add Tui Na or herbs to a scope for it to be permissible for qualified practitioners to use those modalities, as long as their scope does not expressly forbid it.
- Adding a technique to a formal scope can increase the educational and testing burden on all licensees, not just those who intend to use the technique. The acupuncturist who has no intention of incorporating herbs into his or her practice, but who can’t obtain a license without also spending years and tens of thousands of dollars studying and obtaining herbal certification is an acupuncturist whose livelihood is unnecessarily threatened with no benefit to the public.
Our superficial understanding of scope of practice leads us into battles that we will ultimately lose, limits our opportunities, and distracts us from efforts that could better serve the profession and the public. What a shame.
“Moving sentiment but it is in NO way a legal opinion its only a Yin response(feelings)…..Talk to a lawyer not a member of a state Acu Board….They(AB) have NO power in a court of law. But the Conundrum is much more complex than that…..They(AB) are only involved with your license to practice in that specific state and will not enter into any proceding if you are sued or an insurance company comes to take back the monies practitioners charged for “other” techniques under the acu codes…….The insurance companies are doing this right now to many other professions….I have a friend and recently his practice group was reviewed by Blue Cross sadly their thriving practice may owe over $500,000 for doing techniques out of their scope and then charging for them under the “Codes” as “Incident to” charges……..Secondly, if what you say is true then why are numerous state Acu Assoc. attacking Physical Therapists for”Dry Needling”….PT’s ,using your logic, should be allowed under their Scope to relieve trigger points…..Right?…..If you have griped against PT’s or massage therapists doing Dry Needling then that would be at the least hypocritical……We first need to delineate what EXACTLY is acupuncture then all of the many techniques and modalities that fall under the umbrella of Acupuncture……Why so? In the future they can be accepted by the insurance industry(soon federal under Obamacare)……and we can be reimbursed for them…..We are not setting a “Federal Scope of Practice” as Michael J. ignorantly stated but we are carefully Defining who we are to the Federal Government and to any Insurance Exchanges……This should have been done 40 years ago…Oh yes forgot we were felons then practicing medicine w/o a license……Under the banner of acupuncture we should have Tui Na, Cupping, Gua Sha, Vibrational machines(G5-Genie rub), Sound healing, Bleeding, Herbs, Hydro-therapy, Dietary Counseling, Tai Chi, Chi-Kung, Trigger Point injections, Aroma Therapy, Therapeutic Exercise, Magnets, Magnetic Pulse therapy, Kinesio-taping(moving lymph and blood)……etc.(New Mexico’s scope of practice could be our boilerplate)……I use many of these in my practice and would never be reimbursed if I took insurance…..think about it…..if in the future any powerful group like PT’s, Chiros, MD’s wanted to constrict us under our federal proposal they could because it is not specific…..They could force us into our Acupuncture corner by using the insurance companies as their cudgel and we would only be reimbursed for that(acupuncture)…When people hear we can now accept insurance they will flock to us by the millions…….at that point envy will drive our competitors to attack us…..Just as we are attacking the PT’s(Bad Karma) and if we are not clearly defined we will lose in court and with the insurance reimbursement……Trust me the other professional assocs. know we are disjointed, broke, and adverse to conflict so their “Big Political Dollars” we trump any weak argument we can respond with……..Its all about the future…..not the present(mea culpa to E. Tolle)”
– Dr. Tony
What is legal varies from state to state and changes with time. So, what we’d learn would depend on what lawyer you speak to and where.
However, what is within scope and legal for you to do, may or may not be a procedure covered by a particular insurance company. The companies may use a scope argument, and just about anything else, to avoid paying for a procedure. That isn’t the same as saying the procedure is something an acupuncturist may not do. Are the individuals being sued also in disciplinary proceedings with the AB/BOM for practicing outside of scope? If not, then, the issue is insurance billing rather than illegally practicing outside of written scope. (If you look at the links in this post you will see writings that have indeed been reviewed by lawyers.)
As for your question about State Acu Assns attacking PT’s – if you look at the rest of my writings you will see that I believe that Acupuncture groups are, almost without exception, making a terrible mistake in the way they are handling the Dry Needling issue. Some State Attorneys General have ruled that Dry Needling is within the scope of PTs, and some have ruled it is outside the scope of PT’s. For the most part, their decision is (and should be) unrelated to what the acupuncture community wants. I have not griped against PT’s doing Dry Needling.
The insurance industry is remaining privately controlled under the Affordable Care Act and has not been federalized, so I’m not sure what you are getting at with that. Insurance companies decide what they will or will not covered based on many factors. Deciding that a particular procedure is within our scope does not guarantee insurance companies will pay for it. (Example — Medicare reimburses participating Chiropractors for adjustments, not for evaluation, management, or X-rays, even though those are well within Chiropractic scope.)
I agree that we are disjointed and broke, and, I’m afraid, laboring under a whole lot of misinformation. I’m doing my best to, at least, clear up some of the delusions shared by so many of us.
I appreciate your efforts to try to clear up any misinformation, but, with all do respect, the more I hear from you on this topic, the more ambiguous the issue seems to become for me. I’m still in the process of reading the information you’ve provided, and will continue to do so in hopes of gleaning a better understanding of all this. However, I think I speak for many other LAc’s when I say that I would feel much safer about the practice of acupuncture from a legal standpoint if there were fewer “I believe”, “not necessarily”, and “may or may not be” statements being thrown around.
I understand your desire for certainty, and if you share specifics I’ll do my best to offer some clarity. However, in many cases we have to live with uncertainty because that is the way the law is. It changes. Is Dry Needling within the scope of PT’s? In Virginia, the Attorney General’s office said yes, in other states the AG has decided otherwise. In no case, that I know of, has there been a lawsuit on this matter, but it could be that a Judge would rule for or against the respective AG. Is Tui Na within the scope of LAcs? In Virginia, the BOM has proceeded as though it is, though it is not listed in our official scope and has not been tested in court. In at least one other state the BOM has decided that it is not. For decades, you couldn’t sell caskets in LA unless you were licensed by the Funeral Home/Embalmer Board. That was challenged by some Monks and went all the way to the Supreme Court before it was overturned. The law varies from locality, is open to interpretation, and changes over time (it used to be legal to own humans, for example) — so there will always be the clarifiers that bother you. Life is full of uncertainties.
Would expanding the scope of practice in a given state mitigate those uncertainties?
Depends. If Tui Na were in the written scope for LAcs in a state, then, yes, it would be officially in the scope. However, 1) it doesn’t mean that every LAc could do it, it would depend on their skills and training, 2) It wouldn’t mean that other professionals would not be able to do it, 3) it wouldn’t guarantee that insurance companies would pay for it, and 4) it could create a situation in which the profession would be expected to make sure that the technique was included in all educational programs and testing. So, the best answer is that it could mitigate some, but not all, uncertainties, and could create additional ones.