A Practical Next Step

Okay, I’ve heard the critics — too much blaming the profession and focusing on mistakes, not enough positive things we can do now.  So, here goes —

A very practical next step, or maybe the most important thing to do to prepare for a next step, is getting your bearings. Any confusion about where you are now and your next steps might be in the wrong direction.  So let’s take a look at where we are with our old friend Dry Needling —

On January 23, 2014, the Court of Appeals of the State of Oregon issued a ruling regarding the practice of dry needling by Chiropractors. Surfing the web I’ve read “the issue came down to whether chiropractors could perform dry needling after having 24 hours of training,” and “The Oregon Court of Appeals ruled “dry needling” is acupuncture and not within the scope of practice of chiropractic medicine” and “This ruling sets a precedent which can have far-reaching effects beyond Oregon. It becomes part of the record for each state acupuncture Association to use in it’s own fight for appropriate licensure, training, and practice.”

It is certainly correct that the ruling does set a precedent, so let’s be sure we understand what that precedent is. I encourage all of you to read the ruling, linked above.  It isn’t long and it is interesting. You can see a nice summary here. Most critically —

  1. The ruling does not say that dry needling is acupuncture.  I don’t believe it includes any mention of the word acupuncture.
  2. The ruling does not consider how much training is necessary to practice this technique safely. Hours of training are irrelevant to this ruling.
  3. Patient safety is not explored or addressed in this ruling.

The Court focuses on the Chiropractic Board’s argument that Dry Needing is Physiotherapy and rules that it is not, based on the understanding of the word in 1927, when Physiotherapy was added to Chiropractic scope in Oregon.   (The Court clearly states that it does not find that Physiotherapy is the same as Physical Therapy.)

So, if you are in a state in which the PT Board or Chiropractic Board has argued that Dry Needling is Physiotherapy, and if Physiotherapy was added to that Board’s scope in the late 1920’s, this ruling sets a very important precedent.  I’m guessing the ruling may not quite live up to its reputation as a game-changer.

In other news, while NCASI is celebrating the Utah DOPL’s decision that dry needling is outside the scope of practice for Physical Therapists, there is a bill (HB 367) moving through the Utah House that would add Dry Needling to the Physical Therapy scope. (There are fewer than 100 LAcs in Utah, and several thousand PT’s). Similarly, Arizona S.B. 1154, legislatively adding dry needling to Physical Therapy scope has passed the Senate.

So, that’s where we are. And if you don’t buy my argument that knowing where we are counts as a practical next step, here, on its one year anniversary, but so relevant it could have been written today, are not ten, but ELEVEN, positive, practical, and fulfilling next steps.

The Acupuncture Profession, News and Analysis

Three dedicated AAAOM Board members and AAAOM (super-qualified, knowledgeable, and committed) Executive Director, Denise Graham (my last hope that things could get better) resigned recently.

One board member spoke of an uncomfortable and increasingly controlled board environment, a declining membership (now less than 2% of the profession), and poor relationships with national and state leaders. Another stated that the AAAOM doesn’t have the support, revenue, or credibility to make progress towards legislative goals.

This isn’t the first time AAAOM has been on the ropes. If it hadn’t been for money from the AAC and support from other organizations, I doubt they would have survived this long. Somehow, though, they still manage to control the conversation.

In other news, NCASI, the National Center for Acupuncture Safety and Integrity, has appeared on the scene. NCASI’s list of “10 Facts” should be titled “10 Things We Insist are True and/or Important.”  Dry Needling by PT’s is legal in many states. Review my past posts on dry needling and scope for more background. We take real risks when we files lawsuits like these.

For twenty years, the acupuncture organizations have insisted that our success depends upon —

  • Increasing credentials/educational requirements/scope. It doesn’t matter if the old education, credentials, and scope worked fine. It doesn’t matter if it increases practitioner expense, decreases practitioner flexibility, or prevents some LAcs from utilizing techniques available to any other citizen.
  • Getting someone else to pay for acupuncture. Fight for third-party payment systems even if other professions report they make good medicine more difficult and practice less enjoyable. Ignore the hypocrisy of participating in a system that requires discounting services while also criticizing LAcs who offer low-cost or discounted treatments directly to patients. Insist that practitioners who don’t want to participate won’t be impacted, and turn a blind eye to the fraud that many practitioners engage in to make the $’s work.
  • Demanding a monopoly.  There’s no need to earn your market share by providing the best product — instead establish it through litigation and turf battles. Don’t worry if this requires you to disparage your fellow health providers or contradict your message that the public should be able to choose their providers.

After twenty years many LAcs struggle to stay in business, and most voluntary acupuncture organizations struggle to survive. Got questions about ADA compliance, insurance billing, privacy issues, advertising questions, disciplinary actions? You won’t get answers from the AAAOM and you probably won’t get them from your state organization.

It’s time to change our strategy. We have enough training, clients who seek our services, and other providers who respect the medicine so much they want use it themselves. Yes, we always need be aware of and informed about the regulatory/legislative landscape, but we also need business skills, PR, positive marketing, and an easing of the regulatory burden.  We need a good hard look at the cost of education. We need legal advice and business tools and positive interactions with potential referral sources and colleagues. We don’t need more legal battles, more regulation, more legislation, more degrees that further divide us.

When our organizations provide these things, we’ll have successful organizations, and successful practitioners. (If you don’t believe me, ask POCA.)

 

News Update

and a bonus at the end —

October 1st, NCCAOM, Facbook —

 NCCAOM has received a significant volume of responses, and the results of this feedback will be taken into consideration during the development of the final policy and standards, as NCCAOM continues to strive for increased customer satisfaction. We are always eager to hear your suggestions for changes that will benefit you, the Diplomate, and the AOM profession overall. It is with your feedback that we can continue to meet your needs.
We are listening!

Spin?

October 2nd, date of scheduled AAAOM Town Hall, AAAOM website —

Legislative Town Hall

CALL POSTPONED – DATE TO BE DETERMINED

No additional news.

October 9th, Richmond, VA, Meeting of Virginia Acupuncture Advisory Board.

Agenda includes discussion of an alternate path to licensure due to conflicts between Virginia law and the NCCAOM proposed policy changes.

The representative from the state association (ASVA) was against any discussion of the NCCAOM issues. ASVA stated  — “lowering of standards…would do harm to both our profession and the public.” Who mentioned lowering standards? Is there evidence that anyone is harmed in states that do not rely on the NCCAOM credential?  Here is my post-meeting email to the association  –  ASVA comments.

The NCCAOM rep at the meeting was clear — the proposals were just proposals, stakeholder comments will be taken into consideration, any language referring to the effective dates of the changes was referring to effective dates for the proposed changes, not the actual changes. I envisioned someone pedaling backwards.

Questions of the Day — We attack when another profession “interferes” with our practice (DVM’s “stealing animal acupuncture”, PT’s “stealing acupuncture”, MD’s wanting to see our patients) even when we have little or no power to change anything. Why are we unwilling to even discuss it when an organization supported by our money, controlling our profession, at our request, takes action that costs us or limits us? We made a difference this time (we hope) – why aren’t our professional associations helping?

Here is a new page on Legislation and Regulation. It contains important and valuable information. Please, read it and pass it on.

I’ll be working on a page about the Acupuncture orgs (the alphabets) and another for potential acupuncture students in the coming weeks.

Dry Needling, Herbs, and Scope — How to Regulate a Profession

A regulatory Board is contacted.  Your licensees are doing X, that isn’t (or, is that?) in your scope.

Ask a PT Board about Dry Needling and the answer usually goes something like this — We trust our licensees. Many learn this technique and it helps their clients. We find room in our regulation to include this in our scope.  We have a few concerns and suggest that those who want to utilize this technique have some additional training and take additional precautions. Our existing system for addressing unsafe practice is sufficient to address risk to the public.

Ask an Acupuncture Board or organization about herbs and the answer usually goes like this. We are being threatened again!  We’d better legislate, and fast! Help! Thanks NCCAOM and schools. We are so grateful for your efforts to ensure that any acupuncturist who wants to utilize this dangerous aspect of our medicine add your $20,000 education and your formal $800.00 seal of approval to their already extensive education and credentials. In fact, in the name of raising standards we should require that from all LAcs. It might prevent some of our most qualified practitioners from practice, but, hey, it is a step toward getting the respect we deserve.

Is something wrong with this picture?

It’s a radical idea, but how about we respect ourselves. Let’s recognize the safety of our medicine and the depth of our education.  Let’s trust our colleagues’ professional judgement and open doors rather than close them and let’s stop deferring to those who profit from our love of this medicine.

For additional reading, check out an example.  In this case, I agree with Dr. Morris when he wrote,

To avoid conflicts of interest, no individual who stands to profit from seminars should determine competencies and educational standards, nor should they testify in legislature on behalf of the common good.

(Of course, he was talking about the PT’s when he wrote it, so maybe in this case he doesn’t agree with himself.)

You have until Monday, 9/30, to comment on the NCCAOM’s “proposals.” Does the current CEU arrangement put the public at risk? Are the states incapable of effective regulation?

One more thing — during the great FPD debate, many expressed concern that once the degree was available the NCCAOM could, by fiat, require it for entry level practice. We were assured that would be impossible. Informed by history, it seems very possible indeed.

You Can Make a Difference

Many LAcs do their best to ignore the “politics” of acupuncture. The experience of participating in professional dialogue can be disheartening and discouraging. It isn’t easy to participate even when we want to — things are happening at the state level, with schools and ACAOM (the coming FPD), or with credentialing (proposed changes at NCCAOM), for example. All too often the debate gets heated and divisive. It is hard to get the whole story and figure out the possible consequences of a change or know what action might be effective. When the licensure legislation was developing in DE few outside of the state were involved. Some of my colleagues in DE had concerns, but they eventually gave up what felt like a fight for a better bill.

Five years after the DE legislation went into effect, there are approximately 35 LAcs serving a population of over 900,000 people and many of those practitioners were either grandfathered in or granted a waiver. Two years went by without a single non-waivered approval. Clearly, the legislation is not giving the people of DE access to qualified LAcs. As I wrote about in my last post, I know of two excellent practitioners who have recently been denied licensure even though their credentials surpass those of many practitioners in the state.

In the long run, the Delaware legislation should be changed. Rules that exclude the majority of NCCAOM credentialed Acupuncturists make no sense, especially when acupuncture can be done by other professionals with far less training. In the short run, the Acupuncture Advisory Council should acknowledge the record of safety of NCCAOM AC practitioners and consistently grant waivers to those with that credential.  In the very short term, the Council should grant waivers to Virginia LAc Sharon Crowell and Maryland LAc Sue Berman.  To facilitate those short term goals I ask that all of you write to the Acupuncture Advisory Council expressing your support of such a waiver.  Please mail your letters by August 22nd!  Feel free to post a copy of your letter in the comments section to inspire others. Email a copy to de@theacupunctureobserver.com. That will help if further action is necessary.

You can see the letter I sent (and borrow from it if appropriate) —  DE Observer Letter.  I’ve also generated a DE LAc sample letter that you can personalize. You could add some of these Possible concerns or your own concerns (please share any additional concerns in the blog comments). The letter can be modified for clients or others who are interested. If you’d like an excuse to visit Dover, DE, the next Advisory Council meeting is September 12th. It should be lovely at that time of year – but don’t count on being able to find an LAc in town :).

 

A Level Playing Field

This was a comment to It’s Not Fair.  You can see the beginning of the exchange there.  Frank raises some great issues, so I’ve cut and pasted his comment below, along with my responses in italicsI’ll split it into a few posts to keep the length under control.

Frank writes:  Here is why I think we are not on a level playing field:

(I’m not a sports fan,so my analogy is probably off, but there is a difference between a non-level field and not knowing how to put together a team or play the game to your advantage.  My position is that while there are things that put us at a disadvantage we could still develop a winning strategy and a winning team. Underdogs can and do win.)

Exogenous factors  (All have endogenous aspects.)

1) Licensing. Not every state even licenses acupuncture, and of those not all include the scope of practice (herbs,nutrition, tuina) that people are taught in school. As far as I know, every state licenses PT.

If you haven’t seen my post about Scope, please read it. Most of our “leaders” don’t seem to understand the term, and, subsequently, we spend a lot of time and energy fighting unnecessary battles. A technique does not need to be specified in your legislation to be within your scope. Herbs, for example, are unregulated by the FDA and so anyone, including the check-out guy at the 7-11 can sell them.  (Check out the ingredients of Airborne, for example.)

Sometimes I wonder whether licensure has done more harm than good (a discussion alive in the ND community) but, accepting, for the moment, the conventional  wisdom that it is a good thing, shouldn’t we focus on licensure in all 50 states before pushing for Medicare coverage?  Shouldn’t we pay attention to reciprocity, agreeing on a mutually agreeable minimal set of requirements for licensure so that qualified and experienced LAcs in one state are likely to be able to practice in all states? (I’ll be posting more on this, but I find it tragic that within the profession we are setting rules that exclude so many of our colleagues!)

2) Money. PT is a $30 billion industry. A lot of the big clinics are funded with private equity money. They use aggressive Starbucks style positioning and can run clinics at a loss in hopes of pushing other big clinics out of business. Plus, they can fund advertising campaigns that make PT seem like a normative activity, and of course they can generously donate to candidates.

Yes, there are more PT’s and it is an industry. I don’t know enough about the specific business practices to comment, but I do know that many investors in PT practices are MD’s, powerful allies to have.  They also seem to have a strong national association.  Meanwhile we’ve got associations which have been promising they’ve turned the corner for years.  And we’ve spent so much energy fighting with other providers over our fear that they will “steal” our medicine that we’ve made enemies rather than friends (check out Love the Bomb). From what I can tell, there are enough people open to acupuncture that it is normative.  WebMD talks about it on a regular basis. Folks often report the great results they’ve seen when their pets receive treatment, for example. Our problem is that we have been unable to make good use of the positive buzz that is out there.

As for advertising, again, we have the money to do this, we just do it poorly. The AAAOM spent two years coming up with information cards that were intended to carry a positive message about our profession.  Instead, the first line reads — “Many healthcare providers are performing unlicensed therapies similar to acupuncture, but each state licensed acupuncturist has extensive training in an accredited college that ensures their dedication to providing excellent healthcare.”   We can’t even start on a positive note without casting aspersions on professionals who could be allies. This one sentence contains several inaccuracies/inconsistencies:  a) professions are licensed, not therapies, b) hasn’t the profession been arguing (foolishly imo) that these therapies are not similar to acupuncture but are acupuncture,and c)not all licensed acupuncturists graduated from accredited schools — it depends on the state and on whether they attended a US school. I’m no advertising executive, but that isn’t a helpful introductory line.  How many MD’s or PT’s (who could refer to us) would agree to display a card like that in their office?

It doesn’t take necessarily take big bucks to influence legislation — it does take a winning strategy, choosing issues wisely and building alliances whenever possible. We have not done that.

A Rose, Redux!

Again, there has been an issue with my last post not being sent to subscribers or showing up on the media sites.  Because I want community feedback before posting part 2 I’m hoping this attempt will fly through cyberspace as intended.  Thanks for your patience.

Mine!

The AAAOM Position Statement on TPDN, or, Mine!

Who is on the Blue Ribbon Panel?  I can’t find a list of participants anywhere.  Are they independent experts on the regulatory process or medical terminology?  Are a variety of professions represented? Who selected them?  Is there any reason regulatory agencies should care what this mysterious Blue Ribbon panel thinks?

Does the AAAOM believe that acupuncture regulatory boards should be able to expand determine the limits of our scope of practice and make decisions about necessary training?  Are we hypocrites with double standards, demanding a degree of control over the practices of others that we find intolerable?

The AAAOM refers to a malpractice company’s refusal to cover PT’s doing TPDN as proof of an “actual risk of endangerment.” Shall LAcs be prohibited from using acupuncture to induce labor or turn a breech baby because malpractice companies don’t cover those procedures?

Regardless of our shouts of Mine! Dry Needling has been determined to be within the scope of practice of PT’s in the majority of states.  I suppose we can keep beating this dying horse, chasing this ship that has sailed, but there are better uses of our limited resources.

Coming soon – a sad story of how a state acupuncture board is limiting opportunities for LAcs and increasing the likelihood that residents will receive acupuncture from non-LAcs.

It’s Not Fair!!!

A Virginia colleague asked – “How is it that Chiropractors can do acupuncture and LAcs cannot do manipulations?”

Exploring why things are the way they are (here in Virginia, anyway) might help us move beyond the usual “we’re getting the short end of the stick again” attitude and could teach useful lessons about how the system works.

1)     How is it that DC’s can do acupuncture?

DCs, MDs, and DOs were doing acupuncture in Virginia, without incident, prior to licensure for LAcs. You can imagine the strong opposition that would have arisen from that powerful lobby if, despite our position that acupuncture was safe and effective, we now attempted to pass legislation that would have removed this technique from their scope. The role of regulation is to protect the public from danger, not ensure that people are limited to the “best” care. When the Dieticians introduce licensure legislation in Virginia (not yet successfully) – the Advisory Board on Acupuncture indicates that support of the Acupuncture community depends upon the LAcs retaining the ability to make dietary recommendations. The Dieticians might think our training in this area is grossly insufficient, but we can show a history of safe practice, and the state has no compelling reason to choose a winner and loser among professions in this case.

2)     Why can’t LAcs do manipulations?

The Virginia legislation specifically rules out PT, Chiropractic, and Osteopathic manipulations.  Since acupuncture training does not typically include Osteopathic, Chiropractic or PT adjustments, and since our exams don’t test knowledge of these techniques, it would have been difficult to counter the arguments of the existing providers that this should be excluded from our scope.  When the ND’s introduce legislation for licensure (so far unsuccessfully and not fully supported even within the ND community) the Advisory Board on Acupuncture always reports that support is dependent on language that would specifically exclude acupuncture from the ND scope.

If a Licensed Acupuncturist could show evidence of education in Tui Na manipulation techniques, included the technique in their informed consent, and was careful with insurance coding it would probably be acceptable.  A few years ago I would have suggested that a formal request be made to the Advisory Board to explore whether Tui Na manipulations were within scope. The board could have explored the issue and developed recommendations regarding education and documentation that would have put practitioners on solid ground.  However, our profession’s recent behavior regarding the PT Board’s similar discussions on TPDN have given our fellow health care providers many arguments they might be itching to throw back in our direction. You might want to check out Scope and Dry Needling for more background. This is probably not the best timing for requesting a formal ruling.

 

AAAOM Call for Comments

Not sure who out there gets communications from the AAAOM, or who pays attention to the communications they do get.  Despite the low of level of support the organization has from acupuncturists (the last I heard was that the organization has about 500 professional members, which would be less than 3% of the profession), it has an outsized impact on the profession’s reputation, our relationship with other providers, and public policy itself.  Therefore, it would be foolish to ignore their call for comments.  First I’ll address the introductory email, which is concerning in and of itself.  Comments on the position statement itself will follow soon.  Here is the email, with my comments inserted.

“Dear AAAOM Members and Colleagues:
We would like to hear from you, our membership, via this “Call for Comments” surrounding the term “trigger point dry needling (TPDN).” Please take a few moments to review this AAAOM position paper, “AAAOM Position Statement on Trigger Point Dry Needling and Intramuscular Manual Therapy.”

As many of you may already know, physical therapy (PT) boards have begun using TPDN terms for the purpose of expanding the PT scope of practice. [How does the AAAOM know the purpose for the choice of the term?  Perhaps the purpose was to help patients distinguish between the release of a trigger point and the practice of a complete medicine? Does the AAAOM believe professions should not be able to expand their scope?] By doing so, this therefore precludes the necessary and adequate education and safety standards already set by state legislatures for the practice of acupuncture. [Education and safety standards are primarily set by regulators, not legislators, and the rules typically apply to classes of professionals, not techniques.  Do we use the term Tui Na to preclude ourselves from massage standards? PT Boards have set standards for the use of TPDN by their licensees.]

At present, 43 states and the District of Columbia have statutorily defined acupuncture along with the educational and certification standards that qualify an individual for licensure. In addition, the current medical literature remains consistent with regards to the definitions of acupuncture as a procedure and practice provided by state practice acts. [I don’t know why the first sentence is significant and I don’t know what the second sentence means.]

The comments you submit via our Membership Feedback Form will be presented to the AAAOM’s Inter-Professional Standards Committee for review, enabling us to take action on your behalf. [Is there a deadline?  Who is on the committee? Can you share what actions are being considered by the AAAOM?]

Additionally, if you have patients who have been hurt by acupuncture performed by someone who doesn’t have a license a license to practice acupuncture, please direct them to the Food and Drug Administration (FDA) Adverse Event Form. These submissions are very important for our work and request that our members advise those patients who submit the FDA form to alert the AAAOM of their actions by clicking here. [Please, AAAOM, explain your strategy.  The FDA does not regulate practitioners, it regulates devices. Reporting adverse events might put our access to acupuncture needles at risk but would not impact state determinations of scope of practice or educational requirements.  If public safety is our concern, why request reporting only when non-LAcs are involved? Isn’t it important to report all adverse events?]

The views and comments we have received thus far on the TPDN issue have proven very helpful, thereby allowing us to fulfill our mission and advocate on behalf of your profession. Thank you for your interest and for taking the time to submit your thoughts on this extremely important issue.”

I’ll share my thoughts on the Position Statement soon.   In the meantime, AAAOM, I request you be clear about the percentage of the profession you represent when speaking on “our” behalf.