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, 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. 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. This is because they originate within, and are driven by, professional associations and not consumer advocacy or public interest groups. 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. 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.
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:
- 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).
- 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.
- 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.)
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
 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.
 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.
 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.
“… 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).
 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.)