Delaware Gets an AOM Practice Act
By Lorna Lee, LAc
Highlights of the Delaware Practice Act (HB 377):
A Diplomate in Oriental medicine is required for licensing.
The scope of practice includes herbs.
The profession will be governed by an Acupuncture Advisory Council consisting of 4 acupuncturists and one physician member of the Board of Medical Practice. It also will have one physician with acupuncture training as a non-voting member.
The Council will perform the 3 functions of a board: writing regulations to interpret the law, reviewing license applications, and overseeing disciplinary actions. Council decisions are sent to the Board of Medical Practice which gives final approval.
All practitioners currently in the state will be grandfathered, regardless of their level of herbal training. (This involves 27 acupuncturists and 2 apprentices.)
The Council may waive the OM requirement for practitioners who can show sufficient education, training, or qualifications.
Only single-use needles are allowed to be used.
There is no provision for detox specialists, as Delaware already has code to regulate acupuncture in detox centers.
History of the Bill
AN INAUSPICIOUS BEGINNING
In 1972, when acupuncture sprang into the national scene after Nixon visited China, the Delaware Attorney General issued the opinion that a medical license was required to practice acupuncture. This placed acupuncturists in an uneasy position for the next 36 years. Interestingly enough, this opinion also predicted that the law should change as accredited training programs developed for professions other than physicians.
There have been previous efforts to get licensing in Delaware, but, being a small state with a small number of practitioners, the political will was not strong enough. In 2003, an official group named the Delaware Oriental Medicine Association was formed which was later disbanded due to lack of funds needed to pay an accountant. However, it was very useful to make some positive connections at our meetings and to gather a list of the practitioners in the state.
During this time we identified Representative Pamela Maier as the best person to sponsor our bill. However, she never responded to our phone calls or emails so we gave up trying to recruit her for this. In the mean time I made sure that I met my own Representative and Senator as a constituent, which paid off later when we were again asking for sponsors. Because they knew my name and knew that acupuncture needed licensing, they willingly supported the bill. (No donations were necessary.)
In the spring of 2007, a patient told me about a controversial Senate committee meeting which I attended in Dover, the state capital. After the meeting I found the elusive Rep. Pam Maier's office and was able to have a quick meeting with her. She told me she would be happy to sponsor our bill and also gave me a name to call in the Department of Professional Regulation (DPR). This turned out to be the director, James Collins, who gave me his invaluable opinion about the best way to set up licensing. Of several options used in other states, he told me he would be willing to support our having an advisory council working under the Board of Medical Practice. We certainly couldn't justify or financially support having a separate Acupuncture Board with only 27 practitioners state-wide. (Board costs are paid for by the fees collected from licensees. With a minimum estimated cost of operating a Board being around $26,000, and having only 27 potential licensees, the math doesn’t add up.) We also did not want to simply be “under” the Board without any input, which is the situation in Pennsylvania and has resulted in many headaches for acupuncturists there.
Some states have managed to get licensing through the DPR or equivalent agency without any Board oversight at all, but Mr. Collins told me he would not support this option. This set-up is already used by the Respiratory Care Therapists in Delaware and works very well. I went to one of the Respiratory Care meetings and learned that their Council really does all the work and the Board almost always approves what they recommend.
Now that it was clear how to proceed, a few of us began our work. This was all done informally, without involving a lobbyist or a formal organization. The morning a strategy meeting was held, the local newspaper published a story about all us “illegal Delaware acupuncturists.” This didn’t surprise us because the reporter had interviewed several of us, but seeing the implication of felony in black and white did stir up a lot of motivation to get a bill done!
Drafting a Bill
How do you get a properly-worded legal draft of a licensing bill when you don't have your own lawyer? Well, just have a state lawyer write it for you! And be prepared to go over the implications of every single word.
In October, we had arranged to meet with our sponsor, Rep. Pam Maier, who invited Senator Margaret Rose Henry to be our sponsor in the Senate. They both had often worked on health-related bills. (Senator Henry also wanted to support the bill because she had been my acupuncture patient!) We gave them a proposal outlining what we wanted the bill to include: scope of practice; licensing requirements; having an acupuncture advisory council; waiver and grandfathering clauses. The proposal also included many things gleaned from problems and solutions in other similar state laws.
While we waited for the state lawyer to draft the bill, we printed up an Acupuncture Information Packet which we planned to give to the legislators and anyone else who might need background. Funds for putting this packet together and mailing it were provided by a generous grant from the Maryland Acupuncture Society. Thank you MAS!
The Assembly Session Begins– Only Six Months to Pass a Bill
In January we called a meeting so that all Delaware acupuncturists could review the draft of the bill. Almost half of the practitioners (12 people) in the state attended. Email and print copies were also sent out to all practitioners. Many opinions and suggestions were discussed and changes were made over the next several months. It was a wonderful process to see how the bill’s content improved over time with input from many minds, including people from the NCCAOM, colleagues from Pennsylvania and various state officials, as well as the acupuncturists.
Our sponsor wanted the bill to go through quickly so it became an official bill, HB 308, long before all the changes were made. Delaware has a 2 year legislative session during which the Assembly only meets from January through June. 2008 was the second half of the session, meaning that if our bill did not pass by June, it would die, and our sponsors would have to be re-elected. We were told that our chances for passage during the session were good unless we took too much time making changes.
What we didn't realize during the fall, while we were drafting the bill, was that the Board of Medical Practice was also working on rectifying our legal limbo! In response to an inquiry from a lawyer regarding the legality of having a non-physician practicing in a doctor’s office, they had formed a 3-member Acupuncture Committee which had already been reviewing all the acupuncture laws from other states. We then showed up with our bill already drafted. The support of the committee, and thence of the entire Board, was immediate and positive. At no point was it suggested that we should be practicing under supervision, or that the law require us to have referral or prescriptions prior to treating our patients.
It was a stroke of good luck that the president of the Board of Medical Practice had studied acupuncture. He made sure to appoint a good Acupuncture Committee, which consisted of a doctor, a public member, and a DO who not only was sympathetic to acupuncture but also possessed considerable political savvy. He spent a lot of time advising us regarding language revisions in person and during official meetings.
The way we connected with the committee was a bit odd. I sent the bill’s draft to the head of the DPR. He was on the ball and put it on the agenda of the next Acupuncture Committee meeting. Once we knew about the committee, I tried to contact the committee members with a letter & draft of the bill, but I had to do this by sending it indirectly through the DPR via email – not a good idea as some of them don't read email. It wasn't until a month later that our DO friend happened to call one of his doctor friends who works with a local herbalist. He then called me, and we made contact.
Fortunately, we had a great contact, through a practitioner's office, with a House staff director. She shepherded us every step of the way through the House. We also got immense help from Betsy Smith of the NCCAOM. She traveled to both a House and a Senate committee meeting to provide testimony. She provided answers and data to all sorts of questions, and she gathered valuable opinions from other national advisors. Thank you Betsy!
The Dreaded “In Committee” Time
The bill was assigned to the House Policy and Government Accountability Committee, aka the “Sunset Committee.” When the Committee chair realized that we had been existing in Delaware essentially illegally for 36 years, he wrote that he was “personally embarrassed” that the Assembly hadn't taken care of the situation. Aha! Now we had political will to get the bill passed.
A House staff person with experience with other healthcare licensing bills was appointed to oversee our negotiations, which took four full meetings to finish. Even though the Board of Medical Practice was now happy with the bill, we had to reword the scope of practice to please the dieticians, massage therapists, and physical therapists. The chiropractors did not request any changes. The scope changed to include such lovely phrases as “manual meridian therapy” and “Oriental dietary therapy,” which is defined partly as furnishing non-fraudulent information about herbs, vitamins, etc.
Being the Last Kid on the Block to Get Licensing Means You Have to Compromise.
We also had to make changes requested by the Medical Society. At first interpretation it looked alarmingly like they wanted to license physicians under our bill as acupuncturists without any qualifications – this was unacceptable. However, once I had a personal meeting with the physician/acupuncturist behind the changes it became clear that his only intent was to make sure our bill did not somehow interfere with the ability of physicians in Delaware to use acupuncture. This was a fairly easy issue to solve, although the bill ended up with some language we were a bit uncomfortable with. We were told that if everyone leaves the negotiation table just a little unhappy, then it is a good bill because everyone has had to compromise on some point or other.
This doctor also thought it would be useful to have a physician with acupuncture training on the Acupuncture Advisory Council – but adding another member would have thrown the voting balance off. The DPR suggested the happy solution of having an “ex officio” physician/acupuncturists member who could advise but not vote.
We should all take heart from the fact that all during this process the physicians were helpful and supportive of us getting a license. This indicates the time has really come for our profession to have a place in the general medical community.
A second general acupuncture state meeting was held on March 15 to review the changes and progress made so far. There were so many changes to the bill that we were told it would be pulled and given a new number (HB 377), since it looks better politically to have a “clean” bill.
A BIG CHANGE
The original intent of this bill was to be an acupuncture bill, which would require NCCAOM certification in acupuncture alone for licensing. However, herbs were placed in the scope of practice as has been done in other states.
One of the practitioners in the state had correctly predicted that this might turn out to be a problem; but it turned out to be a problem with an obvious solution. When the Medical Society physician reviewed the ACAOM educational standards and the NCCAOM certification standards, he noted that there currently are standards for the study of herbology which are separate and above those for acupuncture alone. He felt that the bill should reflect these additional standards for herbs. He and the Board doctor agreed with our suggestion that we adopt a 2-tiered system, similar to PA and MA, where one can practice with an acupuncture license only or else with an Oriental Medicine license which allows herbs. (Some of you reading may be nodding your heads as this is a very big issue nationally and is currently causing legislative changes in NY and NJ.)
This was NOT fine with the DPR. Delaware massage therapists currently have a 2-tiered system which confuses the public and will soon be changed to one license, so the DPR did not want to create another 2-tiered license. The morning before what we all hoped was the last negotiating meeting (April 10), I was offered the solution of changing the bill to “Oriental Medicine” for the licensing standard, instead of a 2-tiered system. Because the clock was ticking and this was obviously the direction the doctors and DPR wanted, I agreed to this, and the details were worked out during the meeting (4 acupuncturists and an herbalist were present).
We had another general acupuncture meeting and conferred via email and telephone regarding this change. One acupuncturist and 2 apprentices objected, partly on the basis that requiring all new practitioners to have herbal credentials—in the form of OM certification—might shut out many practitioners from other states who practice acupuncture alone. Everyone else who participated was in favor, including the 5-Element practitioners from TAI-Sophia.
Reasons in Favor of “Oriental Medicine”
The NCCAOM OM certification is relatively new and thus not yet possessed by the majority of acupuncturists in the USA. However, the National Acupuncture Foundation book of state laws (2005) shows that over half of the licensed practitioners are in states which require herbal education. This bill allows the Acupuncture Advisory Council to waive the OM requirement for a Delaware license if an applicant can show sufficient education or experience, and so does not shut out those people.
Another reason for using OM in our license is that this is the trend in our profession. The 2003 NCCAOM Job Analysis found that 93% of acupuncturists (who answered the survey) practice herbs. If we are using herbs then we need to show that we have the training to use them responsibly, which can be done by using the OM certification.
AAAOM alternate public member Michael Taromina, a lawyer with the NY acupuncture group as well as the NCCAOM Ethics Council, was kind enough to advise us that having the OM requirement, along with including herbs in our scope, would have many benefits over having a 2-tiered system including:
- giving us the best security from the FDA regarding herbs;
- taking away current obstacles for acupuncturists working in hospital or clinical settings;
- helping with malpractice coverage for herbology practice; and
- protecting from future domain infringement from other professions.
For these powerful reasons we pushed ahead with the new OM standard in the bill. One of the doctors was uncomfortable with grandfathering all of the current practitioners into the full OM license (over half of us have full herbal training, but only 4 have the full OM certification), but the head of the DPR was successfully persuasive in favor of grandfathering everyone. A clause was also added to allow the apprentices currently studying acupuncture to receive a full license.
Once these negotiations were completed, the bill was released out of committee with its new number and passed the House with a unanimous vote! It was interesting to experience the House floor, which was like a busy, crowded school homeroom with people wandering around joking with each other and passing notes. The roll call had the cadence of an auction as the Representative names were called and “yeses” were said so rapidly that we could scarcely realize our good fortune.
ON TO THE SENATE
The President Pro Tempore of the Delaware Senate gets to assign bills into committee – which gives him power to bury it or to help it into a supportive committee. Because the physicians were supporting us, the bill was appropriately assigned to the Health & Human Services Committee which was chaired by our co-sponsor, Senator Margaret Rose Henry.
The senate committee hearing was not easy, as the objections raised about the change to OM needed to be addressed. It helped enormously that Betsy Smith made another trip to present NCCAOM information, the Medical Society doctor/acupuncturist helped answer questions, and once again the head of the DPR was very persuasive. If we had tried to write a bill that wouldn't work from the DPR point of view, it never would have passed. It was interesting to see the variety in quality of attention that different senators gave – 2 had to pop in and out to go vote on budget issues in a different meeting, one senator followed every detail and asked good questions, while another actually fell asleep!
Once we had addressed all the questions, the bill was released without changes because we had already done so many negotiations in the House. Our physician supporters came through with emails and phone calls to senators to explain why they wanted the bill passed. All along we had encouraged grassroots support of the bill from patients. When the bill came up for a vote in the senate I was very nervous about the potential for having to testify, but it turned out the hardest part was waiting through various ceremonies with Special Olympics and Eagle Scouts. Once it came up for a vote, the bill got a unanimous 21-yes-vote-salute!
We had a signing ceremony (read: photo-op) with Governor Ruth Ann Minner on June 27, 2008. While it will be a while before the regulations and procedures are in place, we all can breathe a sigh of relief to be a valid licensed profession in the state of Delaware.