Regulatory activity, licensure laws, and organizational news impacting LAcs –
Regulatory and Legal Round-Up:
In April the Washington State AG determined that Dry Needling was not within PT scope as currently written. The legislative session ended without success for either of two competing bills to add DN to or restrict DN from PT scope. This fight is likely to continue in future sessions.
The North Carolina Acupuncture Licensing Board’s lawsuit against PT Dry Needling was dismissed “without prejudice” on April 26th with a ruling that the NCALB has not exhausted its administrative remedies and so the Court lacks subject matter jurisdiction. A member of the NCALB distributed an email blast disagreeing with the ruling that seemed to have been written prior to reading the opinion. The NCALB (and anyone else crying foul) should study the Court’s ruling before pursuing the legal battle (and asking for money to fund it).
On May 9th the Texas Attorney General issued an opinion that the Court would likely conclude that the Board of Physical Therapy Examiners has the authority to determine that trigger point dry needling is within the scope of Physical Therapy.
The Virginia Board of Physical Therapy moved forward with regulatory language regarding Dry Needling. The proposed language (which will still go through a public comment period) specifies topics to be covered in the training but not required hours of training. Did the ongoing battle over number of hours in other states play a role?
A rare area of national bipartisan agreement is that Occupational Licensing has gotten out of hand. The right dislikes the burden it places on business, the left dislikes the burden it places on the working class. Add last year’s Supreme Court ruling regarding regulatory boards, and we should expect ongoing efforts to ease licensure routes and to diminish the power of active market participants on regulatory boards.
For example, the Governor of Tennessee (R) just signed The Right to Earn a Living Act, which requires agencies to limit entry requirements to those that are necessary to protect the public, and makes it easy for anyone to challenge professional entry regulations. The Governor of Delaware (D) has created a Regulatory Review Commission to review professional regulations. A North Carolina bill to disband many regulatory boards (including the NCALB) was defeated this session, but it won’t be the last we see of such efforts. (No, the PT’s had nothing to do with the bill.)
KsAOM’s hard work paid off. The Kansas Acupuncture Act became law and licensure will begin in July 2017. The final language was a compromise that includes dry needling within both PT and LAc scope after the initial DN language almost derailed the bill. You can see the text here (see pages 11-17).
The Delaware AAC’s unwillingness to waive the requirement for all LAcs to have full herbal credentialing, even for those uninterested in prescribing herbs, has been an ongoing problem. Legislation has now been introduced which would create tiered licensing (and remove the word Oriental from the law). Tiered licensing puts acupuncture-only practitioners at a disadvantage to all other health care providers, but would nonetheless be an improvement.
Last, but not least, CCAOM has voted to remove Oriental from the name of the organization. No word yet on the new name.
The Acupuncture Observer aims to inform all Acupuncturists of developments in the profession. Fallout from the previous Observer post leaves me without access to several of the newsiest FB groups. I’ll say more about that in a few weeks. In the meantime, if you know of news that deserves to be heard, let TAO know and I’ll get the word out. And, please, share this post with any groups, on Facebook and elsewhere, that could benefit.
© Elaine Wolf Komarow and The Acupuncture Observer, 2013-2033. Unauthorized use and/or duplication of this material without express written permission from Elaine Wolf Komarow is prohibited. Excerpts and links are encouraged, provided that full and clear credit is given with specific direction to the original content.
Well here we are again.
As you know, Elaine, I fought this bill vigorously from the beginning, and multiple times since it passed. I have been ignored by the members of the AAC. I have been ignored by my ‘colleagues’ in Delaware (and elsewhere). I exchanged several letters and emails with the Deputy Attorney General sitting with the board who initially attempted to rebuff me for my efforts. After several exchanges, she at least found my arguments persuasive enough to recommend that the AAC to make a number of regulatory changes. However these, not unexpectedly, have never been implemented or acted upon. I met with my state senator a year or two after that and was told by her that she was ‘comfortable’ with the fact that acupuncturists (even if they only wanted to practice acupuncture) had to be certified to prescribe and dispense herbs despite the fact that no other entity in Delaware must be ‘certified’ to prescribe or dispense them. She told me that every time legislature even tries to regulate herbs that the owners of herb shops and health food stores ‘make noise’. She was not specific about this “noise” and, frankly, I have not found evidence that any legislation involving the regulation of herbs was ever proposed here in Delaware. But, in my experience, politicians just make things up whenever they are caught in a contradiction. I would also wonder about the constitutionality of such legislation (wrt the Comity Clause of the US Constitution), but I do not claim to be an expert in constitutional law.
One additional important problem that needs to be mentioned is that the AAC made a number of changes in regulations that were not in accord with the intent of the law long after enactment. I understand this because I was quite active in advocating for particular language and provisions in the law before it was finalized. Many of these were ignored or changed dramatically before the law was finalized. It is important though to make sure that whatever changes are made to licensing laws cannot be overridden by the subsequent exercise of regulatory mischief driven by regulatory capture.
You can’t really blame the licensed practitioners in Delaware since they were the beneficiaries of the dysfunctional legislation and subsequent regulation. Like most occupational licensing laws they have been legitimately criticized as forms of “regulatory capture”. As put by James Wilson, “Regulatory capture occurs when special interests co-opt policymakers or political bodies — regulatory agencies, in particular — to further their own ends” (James Q. Wilson, Bureaucracy, 1989, p. 76). How do the ensconced practitioners (many of whom cannot meet the requirements they would impose on any other applicants for Delaware licenses) benefit? From reduced competition is the only obvious answer.
I have been more active than anyone in the state in connection with trying to change things but have been both ignored and criticized for my efforts. Part of the problem is that members of the AAC have never been held accountable for either their actions or inactions. I think that part of the reason the BOM is moving forward with proposed changes is that the law has been successfully challenged on two occasions. Everyone backed off and issued the licenses that were initially denied, knowing full well that had the matter gone before a court the law, or portions of it, would quite likely have been struck down. The BOM who, in Delaware, have the final responsibility for issuing or denying licenses have become tired of meeting the legal challenges and are perhaps a little concerned that someday the current law would actually be challenged before a judge.
On the issue of the change in name from “Oriental Medicine” to “Eastern Medicine” I have far too much to say and I am almost certain that no one is interested in hearing it. I have yet to see a single argument from the acupuncture community (or anywhere else) discussing why the change is contemplated. Since the term Oriental is derived from the Latin “oriens” meaning “east” I am not sure that changing the designation of Oriental Medicine to “Eastern Medicine” clarifies anything. There are of course arguments made that the term “Oriental” and the concept of “Orientalism” may be bound in history with racist ideologies and cultural imperialism originating in “the West” but these discussions are very complex and hotly debated. Historically speaking the earliest origin of the use of the term “orientalism” in the West actually corresponds with the creation of the chair of Arabic at Oxford University in 1640 (Macfie, 2002 p.25). Of course many uses the word were made earlier for example in Chaucer in 1336 (The Knight’s Tale). But I doubt that the undisclosed cast of characters driving this proposed change is even aware of any of this.
Why has no one “stepped up” to work on the language of the bill in Delaware? I know why I won’t do it. I am tired of being lied to by our power brokers and by the complete lack of accountability that seems to pervade every aspect of lawmaking and regulation—at least in Delaware. I am tired of fighting for changes, and reaching agreements, which are never implemented. Not once did I get any support from a single member of the acupuncture community here-even while this very ugly law was being passed. They are not interested. Why would they be? They are just fine. They have their licenses and can work here if they wish. To them-no competition is a good thing. As for me, I do not think that the proposed changes in the Delaware law go nearly far enough. Furthermore the regulations also have to be completely rewritten. They will not be. I can almost guarantee that. In the end we will be left with as big a mess as we already have, if not worse. As for me enough is enough. If it were not for the presence of the NCCAOM at the table while this law was being written I am quite sure acupuncturists would have come out much better. Their representative inserted herself at critical points in the debate to assert that not including the herb certification requirement would imperil the public. Toxic nonsense.
When the law was passed the person lobbying on behalf of the power brokers in Delaware trumpeted that this was a law that would not have to be changed “for a long time”. Well, here we are again–but I repeat myself. I wish everyone the best of luck but, collectively, we have to do much better. We do not seem to be moving in that direction.
Macfie, A. L. (2002). Orientalism. London: Longman.
Wilson, J. Q. (1989). Bureaucracy: What government agencies do and why they do it. New York: Basic Books.
To be clear, I am not blaming anyone for not stepping up, and understand your reasons (and the reasons of many of my colleagues) quite well. Doing this sort of work — if you’re lucky it’s likely to be thankless, if you’re unlucky, which is likely, you’ll be harassed and blamed. I wish some of our organizations would focus their resources on things like this, rather than the losing DN battle. Then again, given some of their past efforts, I don’t go in trusting anyone of them not to make mistakes. (So, I admit I’m part of the reason why people might feel this work is thankless at best. I have no qualms telling people or groups they’re on a path that will lead in the wrong direction.)
As for Oriental. One reason is that the term is seen with disfavor among many. Another reason (not really resolved by this fix) is that it isn’t really accurate given the addition of things like auricular acupuncture or other more recent developments. Last, but certainly not least, state and federal governments are moving away from the term.
Thanks for the reply Elaine and for permitting this to be posted. Just so I am clear-I do not really think you are blaming anyone for “not stepping up” especially me. But I do know how much you have had to tolerate in your efforts to make things right and I know that I would not have the patience or the stomach for the rancor that has been directed your way. This is a time for serious and well motivated people to do some serious reflection, serious study, and a lot of serious work. It has to happen or there will be little that we recognize remaining in a decade or two. Are we up to it?
“I’m conflicted — I know the bill should be better, I know the current situation sucks, I don’t have the resources to take this on myself.” Your malaise is all too common in this profession. No income = no resources. I agree with throwing $$ at “causes” that are not well articluated or understood. DN battles differ state to state. An approach that presumes they are alike in general is mistaken. Encorachment of prtactice scope is commonplace in medicine. Fam docs won ultrasound as a procedure despite objections from the Obs. The solution: training by Obs who broke from the pack. Podiatrists grabbed the “ankle down” for their purview incl surgery. Helped by OPEIU. These goals cannot be accomplished by a few individuals…or a profession unaware of its place in mainstream.
Well, Steve, I know you are involved with the NGAOM, who claims to have some real resources. Unfortunately, the NGAOM seems more eager to use those resources to push for a malpractice mandate that does not make life easier for practitioners. Perhaps some of strength could be used to support common-sense licensure laws that open the door to qualified practitioners?
Though, I must admit, given how the malpractice thing went I don’t actually trust the NGAOM to assess what language really would help the profession.
Steve, I think you’ve misunderstood the context of Elaine’s comment. She wasn’t talking about dry needling, she was talking about changes to the acupuncture license in Deleware that would make it easier for acupuncturists without Chinese herbal training to get a license to practice acupuncture. Are you suggesting that NGAOM has a horse in this race? If so, which side are you taking? Do you think all acupuncturists should be board certified in Chinese herbs in order to qualify for an acupuncture license? Or do you think practitioners with acupuncture-only certification should qualify as well?
Great summary of current activities on DN. I was wondering what happened with the NC case. Did not work out as anticipated. Thank you.
It is important to note thst the NC case was dismissed die to a filing error – there was no judgement and it can be refiled. Thank you.
Yes, “dismissed without prejudice” means that the case can be brought again. However, having read the ruling (the link is in the post) I don’t believe it is accurate to say it was dismissed due to a “filing error.” For instance, the language “Therefore, because the Acupuncture Board has brought this suit without seeking relief from the Physical Therapy Board under section 150B-4 and 150B-20,
which are adequate remedies available to it, the Acupuncture Board has not
exhausted its administrative remedies under the Administrative Procedure Act.
The Court therefore concludes that it lacks subject matter jurisdiction over this
action and grants the Physical Therapy Board’s Motion to Dismiss under Rule….”
That’s not exactly a filing error.
I read through the Delaware law and it’s unclear what they’re trying to do. The word “license” is given only one meaning, but then they have this ill-defined concept of Eastern Medicine that would provide the practitioner with what? The right to use a different title? This sounds too vague to pass.
I agree that the language leaves a lot to be desired. I believe that’s because this bill is not originating from the Acupuncture community – it is coming from the BOM and the AG’s office. They are tired of the multi-year appeals process that they keep having to go through when the AAC refuses to grant waivers to people who are clearly qualified to practice. Or, more accurately, the AAC is inconsistent in granting waivers. For instance, an MD who has studied acupuncture but has no herbal training at all and no experience will be granted license, but the Acupuncturist safely practicing for twenty years with no herbal training gets denied.
So, the AG’s office and the BOM are trying to create a system in which Acupuncture-only folks can get a license to do acupuncture, but you still need full herbal credentialing to use herbs. The AAC membership is still either folks who were part of the old system and want to keep it, or folks who are new and learning the regulatory ropes. It would be great if there were people who could work on this language and create something that really would be better, but no one is stepping up to do that. Despite the vagueness in just might pass, because the powers that be want it to pass and have pretty much said to the AAC that they should support the bill. Then again, I’m not sure anyone has really taken on the task of moving it forward.
I’m conflicted — I know the bill should be better, I know the current situation sucks, I don’t have the resources to take this on myself.