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.)

Growing Opportunities for Acupuncturists

The Acupuncture Observer is still working to bring you the latest news relevant to the profession, despite the summer lull in posts.

BLS Code:  After years of effort, Acupuncturists will have a distinct Standard Occupational Code in the 2018 Bureau of Labor Statistics Occupational Handbook. The announcements have repeated the enthusiastic claims that accompanied the multi-year effort to make it happen —

 “Earning a distinct Standard Occupational Code for Acupuncturists is a milestone moment for the acupuncture and Oriental medicine profession. This event positions acupuncturists for a number of new opportunities,” said Kory Ward-Cook, Ph.D., CAE, chief executive officer of NCCAOM. “The classification of ‘Acupuncturists’ as its own federally-recognized labor category both validates and bolsters the profession and positions the industry for growth.”

Data is good. A unique code will distinguish acupuncture as a profession from acupuncture as a modality, and may make it easier to be included in certain state and federal programs. And yet, as far as I know, the only direct outcome of this accomplishment is that soon there will be a report like this for the profession of Acupuncture. Will the data encourage people to enter the field? Will it justify the cost of an Acupuncture Degree? Will it provide evidence that would support increased reimbursement rates? I’m not so sure. Self-employed folks aren’t included these reports and I’ve been unable to determine whether the category will be based on education, license, or just whatever your employer decides.

Like some of our past accomplishments (student loans for Acupuncture School and insurance coverage for acupuncture) the outcome may be a bit more complicated than expected. I’d love to hear more specifics about what we can expect from those who led the effort.

Delaware: No herbal credential? For years that meant you couldn’t be licensed in Delaware, even if you had no interest in using herbs in your practice. On July 19th Governor Markell signed into law HB 387 creating tiered licensing. The law also limits the use of the term “oriental,” eliminates some requirements for ADS’s, and removes the grandfathering provisions. It’s not the best bill text I’ve ever read, but it’s a wonderful improvement over the previous situation. It’s terrific that the Delaware Board of Medicine supported increasing access to acupuncture.This is one example of a jurisdiction where the BOM has been more welcoming to Acupuncturists than the LAcs serving on the Council.

Nevada: Yes, Nevada is another state where the (independent) Acupuncture Board has seemed intent on keeping practitioners out of the state. That explains why the state that had licensure first has so few practitioners. Now it seems that things may be taking a turn for the better. The Nevada Board of Oriental Medicine has had a change in membership. Fingers crossed that this will be the start of a new era with increased access to Acupuncture (and related therapies) for the people of Nevada.

 

I’ll count Delaware as a solid win — increased opportunities for Acupuncturists and increased access for the public. The change in Nevada should be a change for the better, though time will tell. As for our unique SOC, I’ll be interested to see what that changes.

I still expect to write about the The Acupuncture Observer and Facebook fiasco. In the meantime, please share this post on AOF and with others who might be interested. And please let me know of any acupuncture news. In the meantime, enjoy these last days of summer.

 

 

Current Events for Acupuncturists, Spring 2016

Regulatory activity, licensure laws, and organizational news impacting LAcs –

Regulatory and Legal Round-Up:

In April the Washington State AG determined that Dry Needling was not within PT scope as currently written. The legislative session ended without success for either of  two competing bills to add DN to or restrict DN from PT scope. This fight is likely to continue in future sessions.

The North Carolina Acupuncture Licensing Board’s lawsuit against PT Dry Needling was dismissed  “without prejudice” on April 26th with a ruling that the NCALB has not exhausted its administrative remedies and so the Court lacks subject matter jurisdiction. A member of the NCALB distributed an email blast disagreeing with the ruling that seemed to have been written prior to reading the opinion. The NCALB (and anyone else crying foul) should study the Court’s ruling before pursuing the legal battle (and asking for money to fund it).

On May 9th the Texas Attorney General issued an opinion that the Court would likely conclude that the Board of Physical Therapy Examiners has the authority to determine that trigger point dry needling is within the scope of Physical Therapy.

The Virginia Board of Physical Therapy moved forward with regulatory language regarding Dry Needling. The proposed language (which will still go through a public comment period) specifies topics to be covered in the training but not required hours of training. Did the ongoing battle over number of hours in other states play a role?

A rare area of national bipartisan agreement is that Occupational Licensing has gotten out of hand. The right dislikes the burden it places on business, the left dislikes the burden it places on the working class. Add last year’s Supreme Court ruling regarding regulatory boards, and we should expect ongoing efforts to ease licensure routes and to diminish the power of active market participants on regulatory boards.

For example, the Governor of Tennessee (R) just signed The Right to Earn a Living Act, which requires agencies to limit entry requirements to those that are necessary to protect the public, and makes it easy for anyone to challenge professional entry regulations. The Governor of Delaware (D) has created a Regulatory Review Commission to review professional regulations. A North Carolina bill to disband many regulatory boards (including the NCALB) was defeated this session, but it won’t be the last we see of such efforts. (No, the PT’s had nothing to do with the bill.)

Licensure Laws:

KsAOM’s hard work paid off. The Kansas Acupuncture Act became law and licensure will begin in July 2017. The final language was a compromise that includes dry needling within both PT and LAc scope after the initial DN language almost derailed the bill. You can see the text here (see pages 11-17).

The Delaware AAC’s unwillingness to waive the requirement for all LAcs to have full herbal credentialing, even for those uninterested in prescribing herbs, has been an ongoing problem. Legislation has now been introduced which would create tiered licensing (and remove the word Oriental from the law). Tiered licensing puts acupuncture-only practitioners at a disadvantage to all other health care providers, but would nonetheless be an improvement.

Other News:

Last, but not least, CCAOM has voted to remove Oriental from the name of the organization. No word yet on the new name.

 

The Acupuncture Observer aims to inform all Acupuncturists of developments in the profession. Fallout from the previous Observer post leaves me without access to several of the newsiest FB groups. I’ll say more about that in a few weeks. In the meantime, if you know of news that deserves to be heard, let TAO know and I’ll get the word out. And, please, share this post with any groups, on Facebook and elsewhere, that could benefit.

 

 

Acupuncture News

We lack a national news source for the profession and so we are often in the dark about the forces shaping our future.

Here is some state-level news with national implications —

California: 

In January 2016 the NGAOM joined with CAOMA and nearly advanced AB758. This would have overturned last year’s legislation which moved California to the industry standard of ACAOM school accreditation rather than depending on the troubled CAB.

Connecticut:

The NGAOM successfully fought for legislation mandating Malpractice Insurance for all LAcs. Practitioners in CT report this was done without consultation with the state association. Malpractice insurance is a significant expense, and a needless one for licensees not in active practice.This new requirement doesn’t seem to benefit anyone other than insurance companies and the NGAOM (which gains members through discounted coverage) despite the NGAOM’s pro arguments.

Delaware:

Regular readers know that the DE Acupuncture Advisory Council has generally refused to use their waiver power to license practitioners lacking the full NCCAOM herbal credential. The BOM knows that depriving the public of qualified practitioners is not a public service and is proceeding with draft legislation (text not yet available) that would establish tiered licensure. While it’s not the best solution, it’s an improvement. New Council members are taking their seats in the next few months. Let’s hope we can all work together to grow the profession in Delaware.

Nevada:

The Nevada Board continues to push for an increase in educational requirements far beyond the Masters level. Having again ignored the advice of Nevada’s Deputy Attorney General they are now moving to hire their own counsel, perhaps explaining why Nevada’s fees are the highest in the country.

 

Acupuncture Today didn’t just miss these important news items, history shows AT is willing to selectively hide some developments within the profession.

After a series of well-received columns in 2007 author Lisa Rohleder received a letter from Executive Editor Crownfield — “After several conversations with my publisher and others, we are concerned about continuing your column under its current “theme”, for lack of a better word. While the concept of social entrepreneurship, particularly the “pay according to what you can afford” aspect, is admirable, it has dangerous potential from the perspective of professional advancement.” Yes, AT considered affordable acupuncture dangerous. (The ideas did have potential. The ideas Lisa presented developed into POCA. POCA has established a school, helped clinics provide millions of treatments, helped practitioners establish successful businesses, and provided free CEU’s and many other benefits, to members.)

The Acupuncture Observer may change a bit over the next few months. But until the profession develops a reliable source for news delivered in a timely fashion, TAO will do what it can to keep you in the know. Let’s keep each other informed. Are you aware of news of importance to Acupuncturists? Is there regulation that could keep Acupuncturists from practicing in your state? Is a group pushing for change that seems detrimental to the practice environment?  Email editor@theacupunctureobserver.com with your news. Let me know if you’d like to write a guest post. And subscribe to TAO (box on the upper right of the home page, your address will not be shared or sold) for news updates.

 

 

What’s your Acupuncture Degree Worth?

Answer: Less than it used to be.

(Please, sign the petition.)

If you earned an MAc and Dipl. Ac (NCCAOM) twenty years ago, you thought you had it made. You could get a license in almost all states with licensure. The schools and the NCCAOM touted the caliber of the education and credentials. You knew you had plenty to learn about this medicine, but you could practice safely.

In the gainful employment letter ACAOM points to the (supposed) earnings of those long-ago grads to minimize the financial struggles of recent grads.

But in 1995 the NCCAOM added the Herbal exam, and later the OM. Some states now require those additional credentials of all practitioners. ACAOM has increased hourly requirements for school accreditation several times. And the NCCAOM has put additional limits on who can take their exams.

Some of our most esteemed teachers do not meet the current requirements for sitting the exams. Many practitioners are trapped, unable to relocate.

By increasing the range of degrees and credentials available before our “brand” was established and our profession was strong, the alphabets increased division and confusion. No wonder the public can’t figure out how an LAc’s education compares to that of other providers.

And here comes the First Professional Doctorate. With this new degree, my alma mater announces,

“[graduates] will be recognized as doctors, both professionally and publicly, and will have increased credibility and standing.”

If graduates with an FPD have increased credibility and standing, what has happened to the credibility and standing of graduates of Masters programs?

According to ACAOM’s gainful employment letter, licensure requirements just happen, and practice success is a simple matter of practitioner choice.

Really, though, the “alphabets” have played a significant role in the expansion of requirements and credential creep, and most of the schools do little to teach students how to make wise business choices.

If, as ACAOM wrote, the graduates of twenty years ago do so well, why have entry level requirements been increased so much? Why are grads struggling to pay off existing loans encouraged to return to school to maintain their credibility? Will the NCCAOM require an FPD to sit their exams? Will the alphabets encourage states to require it for licensure?

ACAOM/NCCAOM/CCAOM/AAAOM — if you represent us, defend the value of our degrees and credentials. Your “options” too often become a requirements.

Colleagues, did the gainful employment letter represent your views? If not, sign the petition. 129 people have, which means ACAOM etc. can still claim to represent 32,871 of us.

For additional information and analysis about educational costs and value, check out this from The New York Times and two posts from Dr. Phil Garrison

 

 

NCCAOM/Dry Needling/A Young Profession

A survey about the possibility of a new NCCAOM certificate in Facial Rejuvenation showed up a few days ago. The online conversations were a reminder that many of us are confused about the NCCAOM — what their role is, what we want their role to be , what their role “should” be.  The topic deserves its own post, but, in short, the NCCAOM is a credentialing agency. They design, administer, and maintain the process by which most of us are able to be licensed.  There are loads of consequences of their power within our profession, especially because we have not had, for some time, a truly effective or well-functioning national professional association.

There were many complaints that the NCCAOM hadn’t done more to “stop dry needling.” That, combined with yesterday’s urgent petition regarding legislation on the Governor’s desk in Delaware, made we think I’ve got to try, one more time, to explain where we are with the issue and why what we’ve been doing won’t work. My post to my alumni group is out of context, but I hope still worth sharing (somewhat edited for clarity) —

Since Dry Needling is the issue that keeps coming up as a major focus for the profession, I wanted to give a little more info about the “court rulings” in our favor.

The one that received the most notice and attention was the case in Oregon regarding Chiropractors and Dry Needling.  The outcome of the case was widely misrepresented within the acupuncture community. Various stories indicated that the courts said that dry needling was acupuncture or that it had been determined that the training programs were insufficient.  This was not the case.  You can read a fuller explanation of the outcome of the case here – https://theacupunctureobserver.com/a-practical-next-step/. The gist of the ruling is that dry needling does not meet the implied definition of physiotherapy within the Oregon code.

Other states have also had rulings (usually informal) from the Attorneys General stating that dry needling is not within PT scope.  These rulings have typically been much celebrated within the acupuncture community, but we haven’t been hearing what happens next.  For instance, some time ago Utah was celebrating such a ruling.  Since that time, legislation added dry needling to the scope of physical therapists.  Similar legislation passed in Arizona.  When the AG recently ruled that dry needling was not within PT scope in Tennessee, the ruling included phrasing that basically said, PT’s will need to address this legislatively, as was done in Utah.  (You can get the link to the ruling here — https://theacupunctureobserver.com/late-july-acupuncture-news/).  Illinois is another state where the AG’s latest opinion agreed with the argument that dry needling was not within PT scope, but where the PT groups are already preparing legislation for the next session.

There will probably be states where the acupuncture community is large enough and well-connected enough (and Maryland might well be one) where similar legislation would not be successful, but if you look at the numbers in most states, the PT’s (who also often have business connections with the medical establishment) are likely to prevail.

Today I received a notice of a petition regarding DE HB 359, adding dry needling to the scope of PT’s in Delaware.  HB 359 passed by overwhelming majorities in the House and Senate and needs only the Governor’s signature.  Among the “gems” in the petition – “Accordingly, HB 359 will potentially place the general public in significant danger of injury and harm due to unsafe and unqualified needle practices.”  There are about 800 PT’s in DE, and even more PT Assistants.  There are 45 LAcs.  The odds of the Governor exercising his veto are slim, the odds of pissing off 800 PT’s?  Pretty good, considering we’ve just stated they are putting the public in significant danger.  Interestingly, one of the authors of this petition is the same person who pushed for the requirement of the NCCAOM OM credential in DE, putting practice off limits to about 70% of US acupuncturists.  Isn’t it ironic that the profession’s self-imposed restrictions on licensure in Delaware have left the LAcs scrambling to block action by an overwhelmingly larger group?

Had LAcs been more willing to work with the PT’s from the start, I suspect that in many jurisdictions we’d have come out ahead.  We’d have built relationships and understanding and had some influence, perhaps, on how this modality is practiced.  By sending PT’s to the legislative fix (that’s what “we” said right from the beginning – if they want to do this they should do it legislatively) we’ve taken ourselves out of the process.  As they succeed with changing the law we’ve lost any influence on the procedure.

Of course, trying to work together might not have changed anything.  Professions (including our own) are universally unhappy about outsiders coming in to tell them what they should do and how they should do it.

I will add three things in response to the previous post.  1) While I appreciate the frustration felt by LAcs when dry needling and acupuncture are spoken about as being equivalent, hasn’t it been our insistence that dry needling IS acupuncture that led to this? Wouldn’t we be better served by clarifying the distinction between the two? (Of course, that would undermine our argument that we have a right to regulate the procedure.)  2) There are many cases of patients not wanting to report harm suffered at the hands of providers.  This happens among acupuncture patients too. Even LAcs can cause a pneumothorax.  3) The cease and desist orders can’t help but remind me of the stories from decades ago of acupuncturists being threatened with arrest for practicing medicine without a license.

It hasn’t taken long for us to go from being the scrappy upstarts just wanting to help people with a simple technique, and frustrated by the establishment that was trying to shut us down, to acting like the establishment.  We’ve got our ever-increasing credentials, and maybe specialties soon, and are increasingly able to participate in the bureaucratic system of figuring out which set of codes gets us a reimbursement we can live with. Now, in Maryland, LAcs can interfere with a citizen’s ability to choose what treatments they get from which providers, and can throw their weight around in the provider community.

PT’s will outnumber us for a long time to come.  It’s a shame we’ve pissed in that particular well.

 

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.

Five Important Dry Needling Developments

Yes, more on dry needling.  More about education will have to wait.

Five things to know —

  1. The Oregon Ruling did not (despite the Acupuncture Today headline) determine that “Dry Needling is Acupuncture.”  For a full exploration of the case, read this post. In summary, the ruling of the court was that Dry Needling is not physiotherapy.
  2. On April 1st Utah Governor Gary Herbert signed HB 367, legislatively adding Dry Needling to the scope of Physical Therapists.
  3. On April 24th Arizona Governor Jan Brewer signed SB 1154, legislatively adding Dry Needling to the scope of Physical Therapists.*
  4. On March 25th Massachusetts HB 3972 advanced. This redraft of acupuncture bills HB 2051 and SB 1107 was necessary because the bill could not advance with the language that “dry needling is acupuncture.”
  5. At the end of April the Illinois Department of Professional Regulation issued an informal ruling that dry needling was not within the scope of practice for Physical Therapists “as the acts are currently written.”  That last phrase is important. From what I can tell there are about 550 LAcs in IL and over 9,000 PT’s.  The PT’s aren’t ready to call it quits. Time will tell if the victory for the LAcs is a lasting one. The PT’s could well look to Arizona and Utah and work for a legislative change.

(A colleague practicing in Delaware recently told me of the urgent phone calls and emails she’s been receiving — she must get involved in the fight against PT Dry Needling! Delaware is a state in which a few LAcs on the Advisory Board refuse to grant licenses to qualified acupuncturists. There are so few LAcs (less than 40) that they can’t maintain an association and citizens are far more likely to get acupuncture from a DC or an MD than an LAc. Now the profession wants to take on the PT’s? If there’s an urgent need for action from the LAcs of DE, perhaps it should be action to bring LAcs to the state?)

For those who insist we must do something about this serious risk to our profession, here are some suggestions. They would do far more to benefit our profession than this ongoing battle with the PT’s.

* One of the acupuncture profession’s strategies from the start of the Dry Needling issue was to argue, as the AAAOM wrote in their 2013 position paper,– “the addition of TPDN to physical therapy practice is being determined by physical therapy regulatory boards, deleteriously circumventing transparency and public health safety protections provided by standard legislative process.”  This was a mistake. Given the relative political strength of the PT profession and their MD supporters legislative victories are likely. Had we been willing to work with our health-care colleagues in the regulatory arena we might well have had input and influence in the use of this procedure.

It’s Like Herding Cats

It’s a common refrain about reaching consensus in the acupuncture profession. But why try to herd cats? I learned a long time ago that opening a can of tuna would bring kitty running.

If there were an attainable action that would:

  • Increase patient access to Licensed Acupuncturists,
  • Assist in national marketing for the profession,
  • Decrease educational costs and student debt,
  • Decrease licensing expenses,
  • Increase political power,
  • Expand professional opportunities, flexibility, and mobility, and,
  • Increase the value of your practice,

Would that be like tuna to a kitty?

(Whirrr of can opener)

Tuna for me = Identifying the least restrictive licensure requirements necessary to protect the public and create successful practitioners and working to establish that as a standard in all states.

Before panic ensues, consider some of the situations I’ve heard about in the past few years:

  • Highly experienced and qualified LAcs unable to obtain licensure, even in states where there are so few LAcs that the public has little choice but to get their acupuncture treatment from Chiropractors.
  • Practitioners who want to sell their practices but have a limited pool of buyers because of the unique licensure requirements in their state.
  • Practitioners travelling many, many hours in order to practice, or leaving the profession, because life has taken them to a state in which they can’t obtain a license.
  • Practitioners and students who have no interest in using herbs being required to spend tens of thousands of dollars and thousands of hours learning herbal medicine in order to obtain an acupuncture license.
  • Acupuncturists supporting discriminatory laws or regulations such that the only group of people in a state who can not practice herbal medicine are other Acupuncturists.
  • Practitioners having to maintain licenses in multiple states because changing regulations mean that if they give up a license they will be unable to obtain it in that state again.
  • Acupuncturists being unable to advance reasonable state or national legislation because restrictive practices keep practitioner numbers so low that political support is unavailable.
  • The profession being unable to effectively educate the public about their excellent education and credentials because those credentials vary so much from state to state.
  • Acupuncturists struggling to build a practice in overserved areas, but unable to obtain licensure in nearby underserved areas.
  • Acupuncture organizations fighting for inclusion in managed care and federal health programs, even though many states have too few LAcs to serve the population. (Demographic data can be found at these links: Acupuncture Today LAc Map, US Population, Physicians per State.)

The current system in which some states require graduation from particular schools, others have their own exams, and others have their own educational requirements does not serve us as a profession. The situation is getting worse, not better, as states like Florida increase their requirements. Yes, states have differing scopes. (Those who advocate for scope changes should be required to consider and advertise the impact the changes will have on licensure requirements.) Yes, it is in the interest of the public and the profession to insist that practitioners limit their practice to the tools and skills in which they have been trained. Additional, optional, training can always be required for those who wish to practice more advanced techniques or modalities. The least restrictive licensure requirements have shown themselves to be sufficient for safe practice.

Limited, standardized, licensure requirements would lower practitioner expenses, promote mobility, ease national marketing, and help the profession grow. It sounds great — as good as tuna smells to a cat. Does it make you make you want to come running? Many changes in licensure requirements could be made at the regulatory level and are within our reach. It does not depend on establishing reciprocity. One problem — the LAcs within a state have the power to make or block change, and, especially in restrictive states, the small group that set up the rules is often in power. Another problem — many LAcs don’t care about this until they are directly impacted.

This is a place where national coordination is needed. I hope the CSA sees that this is a place where they could make a positive difference. Let your state association know if you support a more standardized and simpler licensure environment. It should not require any herding.

Cat Food

Cat Food

 

 

Petitions, Medicare, and Licensure

Notable news items in the acu-world this week:

1)  We finally got a response to the petition to the White House to add acupuncturists to the list of Medicare providers. My regular readers already knew that a petition to the White House is not going to create the legislative and administrative changes that would be required.  (Newbies, you can use the tag cloud to find previous posts on the petition and Medicare.)  The response has (no surprise) created the usual teeth-gnashing, with acupuncturists (who seem not to have read the response) lamenting that Obama doesn’t like acupuncture, that it’s all about money and power, that we’re doomed,…. The conversation also shows that even among those most strongly advocating for becoming part of the system, there is still significant ignorance about what would be needed to succeed and the consequences for the profession of “success”.  Also not surprising — no response from the AAAOM or NCCAOM who helped distribute the petition — even though they should have known enough to predict the response and had a year to prepare.

2)  The latest Acupuncture Today newsletter included an article on the six states in “licensure limbo.”  I suspect that overzealous regulation on our part (for example, Delaware and Florida requiring extensive herbal credential requirements for acupuncture licensure) contributes to the lack of enthusiasm for a practice act among practitioners.  I also believe that the acupuncture community’s aggressive and disrespectful response to PT Dry Needling and to MD’s and DC’s who do acupuncture is a significant factor in the unwillingness of those communities to support a practice act in those states.  Actions have consequences.

3)  A new “threat” on the horizon — some LAcs on Facebook are up in arms about Tattoo artists who are doing “dry tattooing” for skin rejuvenation.  You know the drill — how dare they, we have so much training, we need to gather the troops to fend off this encroachment. My points — tattoo artists can use needles, they can do cosmetic work (tattooing eyebrows for people with alopecia and tattooing nipples for people who have had breast reconstruction, for example) and they could tattoo someone’s face completely blue if the client wanted it.  Facial rejuvenation acupuncture is typically not taught in acupuncture school. Is there any reason (other than arrogant self-importance) why we believe we should have control over this technique?

I’m still adjusting to the addition of Facebook into my life. I haven’t figured out how to stay informed and involved there without taking the energy and the dialogue away from The Acupuncture Observer.  For those of you on Facebook, like the Observer page and you’ll get breaking news updates between blog posts.

Also, for those of you interested in learning more about navigating the political/regulatory system I’ll be doing a breakout session at POCAfest,  on March 15th in Tucson.  I’d also be happy to come to your state association meeting, conference, or other event. Knowledge is power.