Tag Archives: Policy

Middle of the End

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The opinions in this post are mine alone, and do not represent any organizations or associations with which I am affiliated.

The profession is in trouble. And as of the October 26 NCCAOM/ASA Town Hall even our leaders admit it. That last bit is new. But what isn’t new — as far as those leaders are concerned, there is only one way to save the profession. It’s their way. And it depends upon working LAcs to shut up about our concerns, and do what they tell us to do.

My experience with the ASA in the Spring 2020 was yet another reminder of the profession’s dysfunctional patterns. I believed (despite previous experience) that a mainstream Acupuncture organization was willing to transparently explore the risks and the benefits of a proposed course of action – in this case, of becoming Medicare providers – with the thought that in so doing we could prepare to mitigate the risks, increase the likelihood of benefits, and build consensus on a course of action.

Instead, at the 11th hour, after 100’s of volunteer hours from a group of individuals invited to participate, almost every mention of “cons” disappeared. A slanted pro-inclusion document was released, followed by a poll designed to tilt pro-Medicare. Still, support for the fight was, and continues to be, tepid. And rather than address or acknowledge the legitimate concerns of working practitioners, what we get from the leadership is exhortation and pressure.

This is a repeated pattern.The organizations choose a direction: increase hours of training, add credentials, become doctors, increase insurance coverage, fight other professions. It’s our only hope. Practitioners who raise concerns are ignored, sidelined, or attacked. When the success we were promised doesn’t arrive, it’s our fault. The organizations may change, but the song remains the same.

A year ago I was privileged to have lunch with Mina Larsen and I made the following request —

The ASA and NCCAOM have decided that becoming Medicare Providers is the only way forward. I keep being told that I have nothing to worry about, that I’ll be able to opt out and continue to practice the way I do now. As a way to show working professionals that you have our backs, let’s pretend the language passes tomorrow, boom. Can the ASA and NCCAOM prepare a document, “So, We Won, What Next?” Lay it out for us. What, specifically, do we need to do to Opt Out? Is it a one time thing? Can I change my mind? How does opting out impact my patients? If I want to be a provider, how do I sign up? Do I need to make changes to my record keeping? Are there any accessibility issues regarding my office? If I make errors in billing am I in any greater legal risk? What are the profession’s plans for lobbying on an ongoing basis? Won’t we need to prepare to fight rate cuts? What’s the budget for that?

(I’ve been asking these questions for a decade!)

So far, crickets. There hasn’t been any effort to help us prepare for what happens on the other side of “success.” Just as we’ve been left to fight with the insurance companies and devote more time and money to training.

Other thoughts while listening on the 26th —

– Has anyone explored how many LAcs are likely to choose to participate in Medicare? What percentage of the 50 million Medicare beneficiaries Mr. Taromina mentioned will LAcs end up serving? If other professionals provide more of the acupuncture treatments, could it speed our demise as a relevant profession?

– Why hasn’t increased insurance coverage increased LAc satisfaction and practice success? Is it true that increased insurance coverage hasn’t impacted non-participating providers at all? (It isn’t true, but that’s what we were told at the time, and now we’re being told the same about Medicare.)

– Is there evidence showing that treatments from LAcs are more efficacious than acupuncture treatments provided by others?

– The presenters raved about a future in which, in a pediatric oncology setting (a weird example for a discussion about Medicare), LAcs would treat not just physical pain, but also the emotions and spirit of patients and their families. Are third party payers reimbursing for treatment of emotions and spirit? Do practitioners feel that the time and visit constraints of third party payers impacts ability to deliver deep, holistic, treatments?

– Mr. Taromina mentioned that the lack of unity in the profession resulted in missed opportunities when it came to Covid, the opioid crisis and the ACA. What’s a specific thing he thinks we could have done differently? (I mean, sure, working together, but for what specifically?)

– Mr. Taromina said that no one has come to the leadership with “better ideas” about helping the profession. Why have suggestions to revamp our educational and credentialing process to create a shorter and cheaper path to entering and remaining in the profession been ignored? (I raised these ideas years ago, and I’m not the only one.)

Was the presentation on the 26th too alarmist? No. It might not be alarmist enough – “the profession” is in trouble, there will be consequences for most of us, and the only “solution” under consideration by those in power won’t help.

It’s critical for regulated professions to have healthy organizations and institutions and I’ve devoted huge amounts of time and energy to supporting these groups. Facing, once again, their lack of learning from the past and their disregard for the actual lived experiences of working professionals is painful as hell.

I have no suggestions about what we do next. For me, it’s time for a healthy boundary. There’s no point in continuing conversation with those who refuse to hear. I’ll save my energy for the treatment room.

Good luck to us all.

Medicare and Acupuncture: End of the Beginning, or Beginning of the End?

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The opinions in this post are mine alone, and do not represent any organizations or associations with which I am affiliated.

 

When I started this post in early June I wrote –

Join your state association. The states will be distributing ASA-developed Educational materials and a survey regarding Medicare inclusion soon.

I was honored to be asked to participate in the ASA Medicare Working Group developing the materials. My goal, as always, is to provide vetted information and analysis so that we can make wise decisions and be prepared for consequences. The ASA Board knows I won’t tolerate anything less. It’s concerning that the NCCAOM made statements that they’re already pursuing Medicare inclusion, but the ASA insists they won’t move ahead without the support of the community.

By mid-June, I was concerned.

There was an inexplicable urgency to complete our work. There had been no attempt to work with outside experts to get definitive answers to issues still up for debate. Academics have studied Medicare’s impact on medical practice and physician satisfaction, and there are lawyers who specialize in Medicare law. Why not give us the time to hear from them about the likelihood of an opt out, or whether we can really expect better reimbursement rates?

I noticed a double-standard as we debated which opportunities and risks to include on our list. But I reminded myself that perception wasn’t reality, and that the ASA doesn’t have a ton of resources. That preparing legislation would take time. I still believed the ASA was committed to an honest process and I told myself that the board would correct any bias when they received the document for review.

I was going to write that the process was challenging, and the document wasn’t perfect. But it was the result of a good-faith effort and everyone should participate in the survey.

By late June, I was distressed.

The slight pro-inclusion tinge had been amplified by the Board’s edits. Several changes were so extreme that two of us (given only a few hours to express our concerns) asked that our names not appear on the ASA-Medicare-Educational-Brief (in the end it was signed “The Medicare Working Group”).

I was going write about where the document fell short, and where it was wrong. I’d share my growing sense that the ASA BOD wanted the survey results to give them a particular answer.

I’d encourage everyone to watch the recording of the June 24th ASA/NCCAOM Town Hall, because all of the scrambling to sell Medicare inclusion didn’t completely obscure hard realities. (Sure you’ll lose a little money on every treatment, but you’ll make up for it in volume!)

By the first days of July, I was dismayed.

Perhaps the ASA BOD doubted they’d get their hoped for outcome? Suddenly, the most controversial issues were no longer a concern. We’d definitely get opt out, reimbursement rates would be better. The ASA Revised Medicare Educational Brief was rushed out, which shows only two potential risks of Medicare inclusion. The old survey and any responses were killed and a new survey was distributed. There was a new Town Hall, and now we were told that we had nothing to worry about. The ASA newsletter asked “Are L.Ac.’s ready to take their rightful place in the federal medical system and reap the benefits of being a recognized part of mainstream medicine?” Look, Ma, NO Risks!

Had they finally consulted with experts and gotten better information? No, the sources were the lobbyists – those who make a living from convincing others that what the lobbyist advocates for is a good thing. Incorrect information about settled issues (such as the proper use of Advanced Beneficiary Notification) continues to be circulated.

(Will the lobbyists accept a contract based on Medicare reimbursement rates?)

I surrender.

The NCCAOM has resources and the ASA has the power to speak for the profession. It seems clear that, at some point, they will pursue legislation to add LAcs to the list of Medicare Providers. If this survey doesn’t turn out the way they want, there will be another.

The more we become enmeshed in the mainstream medical system, the more we’ll need the money of the NCCAOM (our money) to protect us, the more we’ll need to support the ASA so that they can look out for us. The lobbyists will have job security. I’m not so sure about us.

My upset isn’t because I believe Medicare inclusion will be bad for practitioners and the profession, though I do. It’s because our leadership is selling us a fairy tale rather than preparing us for the challenges that await.

I was recently described by a member of the ASA BOD as a straight shooter with great credibility. Believe me when I say that the ASA Medicare Educational Brief, in its current form, is a slanted document that presents an inaccurate picture of what life will be like for LAcs as Medicare providers. If you answer the survey keep this in mind.

Good luck to us all.

The Last Acupuncture Observer Post?

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The planet is burning, the country is splitting apart.

I can imagine the despair of the climate scientists. They sounded the alarm when there was time to change course. But those in power prioritized their own short term interests. The rest of us were powerless to make the big changes. And we remain mostly unwilling to suffer the discomfort that smaller (though still helpful) changes require. We take long hot showers, drive big cars, take cruises, crank the air-conditioning on hot days, and lament the loss of the natural world we know. Being really good at recycling isn’t enough.

In the grand scheme of things, the loss of a Profession isn’t as serious as the loss of cool summer evenings and Orangutans and New Orleans. The knowledge and wisdom of this medicine preceded Licensed Acupuncturists and will live on without us.

I’m no Greta Thunberg. But I will sound the alarm again, and hope that the Profession I love will change course before it’s too late.

  • We have created a growing demand for acupuncture. Patients want it, insurance companies want to include it in their offerings, governments – federal 1,state and local, want to provide it to their citizens. There are lots of jobs, and lots of practices available.
  • There are many Acupuncturists who are leaving the field.
  • There are many areas with no Acupuncturists at all.
  • Enrollment in entry-level Acupuncture programs is down more than 20% in the last five years.

It’s an odd combination. High demand, unfilled jobs, LAcs leaving the profession, and fewer people entering the profession.

Representatives from ACAOM and the NCCAOM, asked about the drop in school enrollment at the ASA conference2, chalked it up to “the economy” and the “overall drop in people attending graduate school” and the change in “employment goals” for “the current generation.” And, “as we have more jobs more people will see it as a viable profession.” In short, ¯\_(ツ)_/¯

They aren’t being honest – maybe not with themselves, certainly not with us.

It’s simple. The investment required to become an LAc, and the education and training students receive, is disconnected from the job skills, jobs, and compensation available to most acupuncture school graduates.

People are spending four plus years in school, graduating with significant student debt, offered jobs that don’t match that investment, and without resources to start or purchase a practice. In some states even four years of education isn’t enough. Florida just added a requirement for training in injection therapy for licensure.

Meanwhile, most entry-level acupuncture jobs don’t require injection therapy or herbal skills. (Not necessary for Modern Acupuncture or most Community Acupuncture jobs, for example).

In order to pass Board exams, extensive study of TCM is needed, even though that system is not required to practice safely and competently, which is what licensing exams are supposed to test.3 The NCCAOM acknowledges the problem, but hasn’t offered a solution.

Existing LAcs spend a lot of time bitter that things aren’t better. Many believe that if only “the profession” fought harder they’d get the higher pay and monopoly on techniques they believe they deserve.

Now is the time to speak clearly.

  • The vast majority of LAcs will never be paid physician level salaries. We can spend more time in school, we can get more titles, we can all refuse to work for reimbursements we consider insufficient, and, still, average net incomes of even 80K are a long way off.
  • We cannot, in general, prevent others from using techniques we consider to be “ours.” 4
  • The higher the demand for acupuncture and the higher our expectations for compensation, the more quickly the system will shift to having non-LAcs provide acupuncture.
  • There is a bipartisan consensus that restrictive Occupational Licensing harms the economy.
  • We are vastly outnumbered by most of the professions we view as competition.
  • If you think that we haven’t been able to “protect the profession” because we haven’t fought hard enough you have not been involved and have no grounds on which to judge.

There are things we can do, powerful things within our control, that could help us survive. We must –

  • Streamline our schooling. The focus must be on competencies, not hours. Safe and competent practitioners can be trained in far less than 2000 hours. We know, because we used to do it all of the time.5
  • Minimize the expense of the necessary training. Much could be accomplished through distance education. Bring back apprenticeships which served us well for many generations (we can call them clinical internships, if we’re afraid of what the mainstream will think). Employers can provide additional post-graduate training in specific techniques and modalities.
  • Demand that the NCCAOM develop licensure exams that test minimal standards for safe and competent practice, not specific knowledge irrelevant to practice.6 The NCCAOM bears the responsibility of designing a JTA that supports the development of an appropriate exam. Particular settings or styles that want to do additional testing can chose to do so. Schools bear responsibility for assessing  knowledge of their particular traditions/lineages.
  • Protect licensure for everyone who has sufficient training in acupuncture, which includes teaching that all health providers have a duty to limit their practice to their own training and experience. Requiring all Acupuncturists to have additional training in herbs, or any other specific, optional, modality shall not be a requirement for licensure.
  • Understand that our success as a profession depends upon our having sufficient LAcs to provide treatment in a timely and affordable fashion in most communities in the US, not on whether the Cleveland Clinic has a few OMD’s on staff. We must provide resources to help and support those willing to practice in underserved areas.7
  • Drop the expectation that “the system” will pay us what we think we deserve. Everyone wants to pay less for health care – people, insurance companies, governments.

We must reclaim Acupuncture as a simple, straightforward interaction between a practitioner and a patient, and recreate the accessible path to licensure we once had. Otherwise, we are creating a future with fewer Acupuncturists, who may manage to pay for their extensive education and keep up with demand only by handing off patient care to minimally-trained assistants working for low wages.

Individual acupuncturists and our professional organizations must acknowledge that we have a problem. It may be a little uncomfortable, but we have the power to make changes that will, at least, delay the day when an Acupuncturist in the US is as rare as the critically endangered Sumatran Orangutan.8 It’s not too late.

 

Notes:

1) Please read this, and comment, on the CMS proposal! Deadline August 15!

2) The ASA did a great job with their first conference. Excellent speakers, well-organized, great facility. Very impressive right out of the starting gate.

3) “The sole purpose of a licensing examination is to identify persons who possess the minimum knowledge and experience necessary to perform tasks on the job safely and competently–not to select the “top” candidates or ensure the success of licensed persons. Therefore, licensing examinations are very different from academic or employment examinations. Academic examinations assess how well a person can define and comprehend terms and concepts. Employment examinations can rank order candidates who possess the qualifications for the job.” (from https://www.clearhq.org/resources/Licensure_examinations.htm)

4) Vermont recently deregulated auriculotherapy. Here’s an opinion from Washington state regarding Nurses and Acupuncture.

5) Other Professions have altered training and education in order to address worker shortages and minimize debt (which also encourages increased diversity). Acupuncturists in Nevada were finally able to bring their licensing requirements closer to what we find in other states.

6) My individual conversations with NCCAOM reps at the ASA conference didn’t move beyond quick chats in passing. I’ve got some hope that they’ll work to improve the recertification process. I’m less hopeful that there will be progress in the other areas in which I’ve expressed concerns. Meanwhile, a big congratulations to Mina Larson on her appointment as the next NCCAOM CEO. I know that she understands the challenges facing the profession.

7) Dealing with the shortage of rural providers.

8) Current population of the Sumatran Orangutan estimated at 14,613.

 

 

Third Night – Lowering Standards!?

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In recent conversations with colleagues I’ve heard a few exclaim “we won’t agree to lower our standards!” and “we aren’t going to go backwards on our education!”

I haven’t heard anyone suggesting that we lower our standards or go backwards, so I was baffled.

Only momentarily, though, because then I remembered -The Acupuncture Revisions Proposal from the POCA Tech BOD to “revise acupuncture education and testing standards so as to benefit current and future (1) acupuncture students, (2) acupuncture schools, (3) acupuncturists, and (4) the general public.”

They make clear that their proposed standards are based around students meeting all of the competencies required for ACAOM accreditation and preparing graduates to be safe and effective practitioners. (The proposal is concise, well-written, and worth reading. Please do.)

Unfortunately, “high standards” in this profession has come to mean number of hours spent in school. So any change in the number of hours is interpreted as a lowering of standards.

I understand how it happened. When we’ve fought for acceptance, we’ve stressed our hours of training to establish our worth. When clients mention that they got acupuncture from their Chiropractor, we talk about how much time we spent in acupuncture school compared to the D.C.’s short courses. Hours of education has been a battle cry in the dry needling fight. (Which has been mostly unpersuasive since the PT’s 1) deal in competencies, and 2) we use different rules when we count our hours and we count theirs.)

Actually, a standard is “a conspicuous object (such as a banner) formerly carried at the top of a pole and used to mark a rallying point especially in battle.” (Merriam-Webster).

So, hours has become our standard. But it’s such a meaningless standard. I’m sure I’m not the only person who’s been to three-day CEU classes that have been a complete waste of time while a one-hour class contains a transformative nugget. I’ve spoken to people who have taught at some acupuncture schools and the picture they paint is not of hour after hour of quality programming.

We’ve got a workforce that needs to grow. And levels of educational debt that are an impediment to professional success. Affording graduate school and repaying loans isn’t going to get easier.

Read the Acupuncture Revisions Proposal with an open mind.

Our banner should be more meaningful than a number.

 

 

Second Night – Census Time!

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How many Acupuncturists are there?

As we strive to increase opportunities for acupuncturists, we should know if we have the workforce to fill the demand we’re trying create. If we don’t have the workforce available, others will step up to fill the need. That may still be a win for the population able to receive acupuncture from other providers, but it won’t be the win the profession has been working for.

The new Standard Occupational Code with the BLS may, eventually, give us a good sense of our numbers. In the meantime, different sources give wildly different numbers of our strength. The NCCAOM, relying on state figures and their active Diplomate data gives a count of under 20K. Others who have gathered date from all of the states (no easy task) have been presenting a figure of almost 35K (Fan AY, Faggert S. Number of Licensed Acupuncturists and Educational Institutions in the United States in Early of 2015. J Integrat Med. 2017 September; Epub ahead of print. doi:10.1016/S2095-4964(17)60371-6).

I’ve historically used the numbers provided by Acupuncture Today. They’ve had the resources to purchase mailing lists and the financial incentive, at least in the days of paper publications, not to send multiple copies to the same practitioner, even if they were licensed in multiple states. I’m not sure their numbers are as accurate in the days of their digital edition, but they are currently showing about 28K LAcs.

In my experience a significant number of practitioners are licensed in multiple states, and a not insignificant number keep an active license when they are rarely or never treating. When getting a license is complicated and expensive, we don’t let them go lightly. For instance, if there were actually 25,000 practitioners, and 20% are licensed in two states, 5% in 3, and 2% in 4, there would be 34,000 state issued licenses.

(To put the numbers in perspective, there are 456,389 primary care physicians in the US. And a lot of patient care is still provided by nurses, PA’s, and other providers.)

Whether there are 20,000 of us or 34,000, it’s a small number to serve the population we hope to serve. And if we’ve got inaccurate numbers we may be writing checks with our ego that our bodies can’t cash.

The Hanukkah story celebrates a miracle – one night’s worth of oil lasted for eight nights. Maybe we’ll have a workforce miracle too. But it would be better if we knew how much “oil” we were starting with. And if we used that information when deciding where to focus our limited resources.

 

 

Accomplishments of the Acupuncture Profession

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We know acupuncture can treat pain and chronic illness, assist with recovery from addiction, increase fertility, and help people manage stress (just to start). Acupuncturists know it would be good if more people could get more acupuncture.

Many dedicated individuals have devoted significant qi to increase insurance coverage, to add acupuncture to Medicare covered services, and to bring acupuncture to hospitals and clinics. All with the hope of increasing access.

Other practitioners are committed to gaining mainstream respect and acceptance to further the goal of greater access. They’ve published research, increased training and credentialing requirements, and fought to keep others from using acupuncture techniques without that training and credentialing.

Our “return on investment” has not been great.

We’re still a lot of money and many years away from Medicare inclusion. How much time and energy gets taken from clients to deal with insurance? How many potential patients have meaningful coverage, and how long will that last? Increased training and credentialing and variations in requirements from state to state slows entry into the field and increases expenses, further diminishing our political strength. In areas with few LAcs, efforts to block other professionals from utilizing pain-relieving acupuncture techniques leaves the public with no access at all.

We’re not using our qi efficiently. Our efforts haven’t done much to shorten the path between most practitioners who want to treat, and most people who want treatment.

It’s motivating, helpful, and informative to read a book illustrating the power of a direct path between practitioner and patient. Acupuncture Points are Holes, is a great read.

It’s several books in one: a captivating personal story, an exploration of the process of establishing an acupuncture practice, and an analysis of some common limitations in acupuncture training. It examines the focus required to keep the path between practitioner and patient clear. The book and appendices contain lots of direct, straightforward, easy-to-read help for you and your business, whether it’s a POCA clinic or not.

The author’s decision to directly address the impediments that keep people in need from accessing acupuncture led to: adoption of a practice model which was then shared with others, establishment of a Co-op to support the system and interested practitioners, and, as of 2014 , an affordable acupuncture school to train future POCA practitioners. The 158 POCA clinics that answered a 2016 survey provided 880,596 treatments. One three-location group sees over 8000 unique patients each year. So far, POCA Tech students have a 100% pass rate on NCCAOM Exam Modules.

All this in less than twenty years.That’s a lot of accomplishments.

Getting the book will be an excellent return on investment. Get the e-book here, the paperback here or here. All proceeds go to POCA Tech.

 

Delaware’s Revised Acupuncture Law: Good Will, Good Sense, or Good Riddance (Guest Post)

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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.)

9 Reasons why Acupuncture Regulations There Matter Here!

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Changes in acupuncture regulation in any state matter to each of us individually, and to the profession as a whole.

Here are 9 reasons why —

  • We don’t know what the future holds. Unexpected moves happen.
  • You may need to hire practitioners or sell your practice. Can interested parties easily move to your state?
  • Your patients might move and want a practitioner just like you. Will one be available?
  • Growth in the profession is not keeping up with demand. Regulatory uncertainty diminishes the appeal of the profession.
  • High educational and credentialing costs interfere with business growth. If the requirements vary from state to state, the impact is multiplied. (See this report on Occupational Licensing.)
  • Regulatory differences lead to divisions within the profession. With fewer than 25k acupuncturists in the US unity is critical.
  • What happens in one state impacts every state. States look at what has happened elsewhere when considering regulatory changes.
  • Changes in one state can lead to changes for everyone. When CA increased required educational hours every school and ACAOM soon changed as well.
  • Different regulations, training requirements, and titles make it difficult to educate the public about our qualifications, draw contrasts with other professionals, or advocate for our profession as a whole.

Staying informed is not easy. Neither is getting involved. We are all busy, we don’t always know how to assess the pros and cons of a possible change, and things can get heated and unpleasant when there are differences of opinion.

And, the future of our profession and our businesses is greatly impacted by regulatory changes – even those happening across the country.

Please, stay involved.

Forgive two posts in quick succession, but regulatory changes are on the way. You’ll hear from me again soon.

(Note — I advocate for standardizing and simplifying the regulatory process for acupuncture licensure. I am not advocating for standardizing the medicine itself. Our diversity is powerful indeed.)

Herbal Regulation and the Acupuncture Profession – A Better Way.

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We’ve got competition. PT’s, MD’s, and DC’s are excited about filiform needles and LAcs are freaking out.

While our energy has been focused on that competition (our training and skills are superior, right?) we haven’t been paying attention to increasing restrictions on our ability to practice the fullness of our medicine. Adding insult to injury, the restrictions on practice are “coming from inside the house.”

I’m talking about restrictions on our use of herbs.

Yes, herbal medicine is powerful and complex and carries both potential risk and potential benefit. Yes, it takes many thousands of hours to come close to mastery of this branch of our medicine. Yes, people have been harmed by the improper use of herbs and supplements. And, yes, at some point the damage done by the misuse of herbs may result in stricter regulation. We may indeed lose access to more herbs.

It’s good that we want to be proactive, protecting the public and the profession from harm. It’s not so good if our actions don’t have the desired result. And not good at all if our actions increase risk to the public and the profession.

Let’s consider the terrain —

  • What portion of harm from herbs/supplements is the result of poor practice by Acupuncturists?
  • What portion of harm from herbs is from the use of raw herbs, what portion is from pre-made herbal formulas?
  • Does preventing certain LAcs from recommending herbs or supplements limit public access to these products?
  • Is the average LAc, even without herbal training, likely to have a positive or negative impact on client’s proper use of herbs and supplements?
  • Which are better tailored to the individualized treatment that is a hallmark of Chinese Medicine — pre-made/patent formulas or raw herbs?
  • Which are more likely to be contaminated with banned substances or prescription medicine – patent formulas or raw herbs?
  • Is it possible to draw a bright line between dietary therapy and herbal therapy?
  • Does limiting LAc recommendation of herbs interfere with the ability of other health care providers or salespeople to recommend or sell herbs or supplements?

See where I am going with this?

Anyone can get Chinese herbs, even dangerous ones. Increasing the regulatory burden on Acupuncturists would make sense if it would protect the public or our access to the full pharmacopoeia on an ongoing basis. It would make sense if LAcs were routinely endangering the public through unregulated use of herbs.

It doesn’t make sense for a subset of our profession to become the only group of health professionals not able to recommend herbs to their clients.

If the only groups weighing in are the schools and NCCAOM, formal (and expensive) training and credentialing will be increasingly required.

Let’s stand united against unnecessary restrictions. LAcs have an excellent safety record. Stay tuned for real-time developments and your opportunity to weigh in on the regulation of herbal medicine for Acupuncturists.

 

Acupuncture Licensing and Regulation – The Future

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Imagine that your acupuncture license meant you could easily practice in every state.

Imagine that licensure exams focused on the skills and knowledge needed to practice safely.

Imagine that acupuncture schools used the time spent teaching things “you won’t need in practice but they’ll be on the exam” to teach things that you really will need in practice, including all that business stuff.

Imagine that acupuncture boards, associations, and organizations worked to make it easier and less expensive for practitioners to obtain and maintain licenses and practice within their skill set.

I wish I could say “it’s easy if you try” – but for most of us it isn’t. (Unless you look to other professions.)

The Florida Acupuncture Board now requires all new practitioners to spend thousands of hours and tens of thousands of dollars on additional education and testing to become Board-certified in herbs. Even though there was no evidence of public harm under the previous rules, and even for those who won’t use herbs in practice.

The Nevada Board is trying to change the regulations to require a DOM or DAOM of all applicants (about 40K on top of an 80K MAOM). Not because there is evidence of public harm, but because that’s the way it is in China. And never mind that the entire state is served by fewer than 50 acupuncturists.

In July 2015 the White House released Occupational Licensing: A Framework for Policymakers. While acknowledging that licensing can provide health and safety protections to consumers and benefits to workers, it concludes,

“State legislators and policymakers should adopt institutional reforms that promote a more careful and individualized approach to occupational regulation that takes into account its costs and benefits, and harmonizes requirements across States. If they are successful, the collective effect of their efforts could be substantial: making it easier for qualified workers to find jobs and move where they choose, increasing access to essential goods and services, and lessening heavy burdens on certain populations….”

Acupuncturists are the policymakers in our profession. Wouldn’t it be great to determine what’s truly needed for public safety and to adjust educational and licensing requirements accordingly? Rather than blaming others for our difficulties, wouldn’t it be more productive to direct our energy to changing the things we can control? We can demand that the insurance companies pay us more because our education cost so much, or we can make our education less costly. We can sue the PT Boards to try and protect our turf, or we can make sure that anyone who wants acupuncture is able to access convenient and affordable services from an acupuncturist.

I’ll be sharing actions you can take to change our practice environment for the better. Like the Acupuncture Regulation US page on Facebook and stay tuned in here, at The Acupuncture Observer, for updates.