CAMLAW: Complementary and Alternative Medicine Law Blog

Licensure of non-medical professionals: researching information

How do you know whether a specific CAM practice -- say, hypnotherapy -- is 'legal' or 'illegal' in a specific state?

Let's say, Florida. Here's a bit of general information about research tools. (Note - the website's disclaimer applies.)

First of all, 'legal' can be a bit misleading. The issue has to be a bit honed down. For example, say you have no health care license but wish to practice hypnotherapy with a certificate from a training course. The issue is whether a lay hypnotherapist, lacking any other professional health care licensure in Florida, is authorized by statute to practice. One has to look at existing licensing statutes and determine whether they would cover the situation.

A good way to jump into this would be to go to the website for the Florida Department of Health, as department of health websites often contain links to relevant law.

Click on Medical Quality Assurance / Individual Licensure Requirements - Applications and Forms.

Locate your provider type (such as medical doctor) and click on Law and Rules (http://www.doh.state.fl.us/mqa/medical/me_statutes.html).

For example, here is the table of contents for the medical licensing laws. You would want to look at these, since a major concern would be the unlicensed practice of medicine. (See A Fixed Star in Health Care Reform: The Emerging Paradigm of Holistic Healing for more detail.)

Title XXXII REGULATION OF PROFESSIONS AND OCCUPATIONS Chapter 458 MEDICAL PRACTICE View Entire Chapter CHAPTER 458

MEDICAL PRACTICE

458.301 Purpose.

458.303 Provisions not applicable to other practitioners; exceptions, etc.

458.305 Definitions.

458.307 Board of Medicine.

458.309 Rulemaking authority.

458.310 Restricted licenses.

458.311 Licensure by examination; requirements; fees.

458.3115 Restricted license; certain foreign-licensed physicians; examination; restrictions on practice; full licensure.

458.3124 Restricted license; certain experienced foreign-trained physicians.

458.313 Licensure by endorsement; requirements; fees.

458.3135 Temporary certificate for visiting physicians to practice in approved cancer centers.

458.3137 Temporary certificate for visiting physicians to obtain medical privileges for instructional purposes in conjunction with certain plastic surgery training programs and plastic surgery educational symposiums.

458.314 Certification of foreign educational institutions.

458.3145 Medical faculty certificate.

458.3147 Medical school eligibility of military academy students or graduates.

458.315 Temporary certificate for practice in areas of critical need.

458.316 Public health certificate.

458.3165 Public psychiatry certificate.

458.317 Limited licenses.

458.319 Renewal of license.

458.320 Financial responsibility.

458.321 Inactive status.

458.323 Itemized patient billing.

458.324 Breast cancer; information on treatment alternatives.

458.325 Electroconvulsive and psychosurgical procedures.

458.3255 Electronic-communications diagnostic-imaging or treatment services.

458.326 Intractable pain; authorized treatment.

458.327 Penalty for violations.

458.329 Sexual misconduct in the practice of medicine.

458.3295 Concerted effort to refuse emergency room treatment to patients; penalties.

458.331 Grounds for disciplinary action; action by the board and department.

458.3311 Emergency procedures for disciplinary action.

458.3312 Specialties.

458.335 Prescription or administration of dimethyl sulfoxide (DMSO).

458.336 Drugs to treat obesity; rules establishing guidelines.

458.337 Reports of disciplinary actions by medical organizations and hospitals.

458.339 Physician's consent; handwriting samples; mental or physical examinations.

458.341 Search warrants for certain violations.

458.343 Subpoena of certain records.

458.345 Registration of resident physicians, interns, and fellows; list of hospital employees; prescribing of medicinal drugs; penalty.

458.346 Public Sector Physician Advisory Committee.

458.347 Physician assistants.

458.3475 Anesthesiologist assistants.

458.348 Formal supervisory relationships, standing orders, and established protocols; notice; standards.

458.3485 Medical assistant.

458.351 Reports of adverse incidents in office practice settings.

Look particularly at the definition of practice of medicine:

REGULATION OF PROFESSIONS AND OCCUPATIONS Chapter 458 MEDICAL PRACTICE 458.305 Definitions.--As used in this chapter:

(1) "Board" means the Board of Medicine.

(2) "Department" means the Department of Health.

(3) "Practice of medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.

(4) "Physician" means a person who is licensed to practice medicine in this state.

Also look at Medical Quality Assurance Information on Regulated Professions to see which professions are licensed or otherwise regulated. Check for allied health as well as CAM professions that might be applicable. Look at scope of practice of licensed professions, and see whether any rule regulates non-licensed (unlicensed) health care practitioners in Florida.

That should get things started....

Interestingly, if you look in the laws and regulations at the providers and health care practices regulated, you will see hypnosis:

Title XXXII
REGULATION OF PROFESSIONS AND OCCUPATIONS Chapter 485
HYPNOSIS View Entire Chapter

CHAPTER 485

HYPNOSIS

485.001 Short title.

485.002 Legislative intent.

485.003 Definitions.

485.004 When practice of hypnosis prohibited.

485.005 Penalties.

Follow the links - notice in particular the definitions of hypnosis and of the various healing arts that are relevant, and the prohibitions:

REGULATION OF PROFESSIONS AND OCCUPATIONS Chapter 485 HYPNOSIS View Entire Chapter 485.003 Definitions.--In construing this chapter, the words, phrases, or terms, unless the context otherwise indicates, shall have the following meanings:

(1) "Hypnosis" shall mean hypnosis, hypnotism, mesmerism, posthypnotic suggestion, or any similar act or process which produces or is intended to produce in any person any form of induced sleep or trance in which the susceptibility of the person's mind to suggestion or direction is increased or is intended to be increased, where such a condition is used or intended to be used in the treatment of any human ill, disease, injury, or for any other therapeutic purpose.

(2) "Healing arts" shall mean the practice of medicine, surgery, psychiatry, dentistry, osteopathic medicine, chiropractic medicine, naturopathy, podiatric medicine, chiropody, psychology, clinical social work, marriage and family therapy, mental health counseling, and optometry.

(3) "Practitioner of the healing arts" shall mean a person licensed under the laws of the state to practice medicine, surgery, psychiatry, dentistry, osteopathic medicine, chiropractic medicine, naturopathy, podiatric medicine, chiropody, psychology, clinical social work, marriage and family therapy, mental health counseling, or optometry within the scope of his or her professional training and competence and within the purview of the statutes applicable to his or her respective profession, and who may refer a patient for treatment by a qualified person, who shall employ hypnotic techniques under the supervision, direction, prescription, and responsibility of such referring practitioner.

(4) "Qualified person" shall mean a person deemed by the referring practitioner to be qualified by both professional training and experience to be competent to employ hypnotic technique for therapeutic purposes, under supervision, direction, or prescription.

The bottom line will reveal itself ....

REGULATION OF PROFESSIONS AND OCCUPATIONS Chapter 485 HYPNOSIS View Entire Chapter 485.004 When practice of hypnosis prohibited.--It shall be unlawful for any person to engage in the practice of hypnosis for therapeutic purposes unless such person is a practitioner of one of the healing arts, as herein defined, or acts under the supervision, direction, prescription, and responsibility of such a person.

But it will take a bit more investigation to tease out the language above ... perhaps initially by digging in and researching whether there are any relevant cases. It may also be worth checking whether hypnosis or hypnotherapy are mentioned in any other Florida statutes. There might also be regulations by one or more of the regulatory boards within the department of health. That, again, should get the first round of research launched.
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Law Offices of Michael H. Cohen offers general corporate legal services, litigation consultation, and expertise in health law with a unique focus on alternative, complementary, and integrative medical therapies.

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Michael H. Cohen is Principal in Law Offices of Michael H. Cohen and also President of the Institute for Integrative and Energy Medicine (also known as the Institute for Health, Ethics, Law, Policy & Society), a forum for exploration of legal, regulatory, ethical, and health policy issues involved in the judicious integration of complementary and alternative medical therapies (such as acupuncture and traditional oriental medicine, chiropractic, massage therapy, herbal medicine) and conventional clinical care. The most recent published book by Michael H. Cohen on health care law, regulation, ethics and policy pertaining to complementary, alternative and integrative medicine and related fields is Healing at the Borderland of Medicine and Religion. This is the fourth book in a series, following Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (1998), Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (2000), and Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health Care and Healing in Human Transformation (2003).

Health care and corporate lawyer Michael H. Cohen has also been admitted to the Bar of England and Wales as a Solicitor (non-practicing), adding to Bar membership in four U.S. states.
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