Testimony on Training, Education, Credentialing of CAM Practice

I just found this testimony on Testimony on Training, Education, Credentialing of CAM Practice given to the White House Commission on Complementary and Alternative Medicine Policy.

The archive from a 2001 meeting of the White House Commission on Complementary and Alternative Medicine Policy is online. In it, the Commission asked, and grappled with, some very complex considerations regarding licensing of complementary and alternative medicine providers.

This is always an issue, particularly as many non-licensed alternative medicine providers can provide useful services to patients; many fall in the zone between treating illness (cure) and addressing related bio-psycho-social and spiritual issues (healing); many risk prosecution for unlicensed medical practice; and in general, the world of conventional medical physicians does not know how to handle requests for referrals to non-licensed practitioners, with all the attendant liability considerations. Here are relevant portions of my testimony and the subsequent Q&A:
Plenary Session III: CAM Credentialing and Licensure

MR. COHEN: Thank you. Distinguished Commissioners, I would like to present five key ideas concerning licensure and complementary and alternative medicine and conclude with some thoughts on the future directions for regulatory authority.

Let's go back in history. During colonial times, the state neither provided nor required health care licensure so anybody could practice treating the sick, but in the 1760s, physicians began becoming licensed for two reasons: first, to present dangerous or unqualified practitioners from injuring the public, known as fraud control; and second, to ensure greater education, training, and standards for practice, and I call this quality assurance.

Later, states made it a crime to practice medicine without a license. Under these licensing laws, naturopaths, massage therapists, acupuncturists, spiritual healers and others were prosecuted for practicing medicine without a license. In fact, "go to jail for chiropractic" was an early slogan for the profession. Since then, four major groups of providers in CAM have gained licensure in various states: chiropractic, massage therapy, acupuncture and traditional Oriental medicine, and naturopathy.

There are at least three historic models for licensure: mandatory, title and registration. These are three distinct models, although a lot of times legislatures confuse the terms. Mandatory licensure is exclusive. It means that practicing the profession without a license is prohibited.

Title licensure means that anyone can practice, but only persons with the designated title, for example, certified massage therapists, can use that title. Registration means that, to practice, a provider has to register their name, address and training with the state agency, which has the power to receive consumer complaints and revoke registration.

Now there are two additional avenues for regulating professional practice: the first is exemption. For example, often religious healers are exempt from medical licensing laws so long as they are practicing within the tenets of a recognized church and do not recommend medication.

The second is the Minnesota model, which you may have heard something about, which allows non-licensed providers to practice, as long as they meet a number of requirements. For example, they must not render a medical diagnosis or engage in fraudulent advertising or deceptive conduct. So these five approaches represent basic models for licensing and regulating.

Now the Tenth Amendment to the U.S. Constitution reserves to the states the police power, the authority to determine who will be granted a professional health care license and what the requirements are for that license. State control makes licensure enormously complex.

Each state has a different licensing scheme with different statutory language regulations and then judicial decisions interpreting all of these rules. State legislatures usually rely on national professional groups to establish education and training standards for practitioners and accreditation standards for educational programs and institutions, but members of CAM professions themselves dispute such things as how much training should be required to get a license in any field or the extent to which their training should incorporate conventional medical models or whether such training and standards can truly encourage individualized treatment.

So licensure presents attention between the desire to increase state legitimization and standardization of CAM practices and the desire to keep CAM practice flexible, nonstandardized and linked to intuitive aspects of care. The possibility of decreased individualization and decreased time per patient that licensure presents, presents a possible dark side to licensure that can temper calls for increased standardization and nationalization, and this can create conflicts about the desirability of licensure, even within CAM professions, and temper interest in more uniform practice guidelines.

Now, once states decide to license a given class of providers, they must address the scope of practice. The map of licensure in CAM is complicated by the fact that some modalities, such as homeopathy or acupuncture, may be included within a scope of practice of several different professions. In other words, quite frequently no single profession has a monopoly on any given modality.

A related complexity is that licensed providers in CAM who exceed their scope of practice can be prosecuted for unlicensed medical practice, and some boundary issues between professions include whether acupuncturists can recommend Western, as well as Chinese herbs, whether chiropractors can recommend nutritional advice, and to what extent massage therapists can offer emotional counseling and support. So the potential for criminal liability creates fear and uncertainty in CAM practice, as it may be difficult to spot boundary violations.

Now, licensure, as you know, is one of several key legal issues, and they are all related, and some of the related issues include informed consent, malpractice liability and professional discipline. Some of the cases suggest that licensed providers may find that merely integrating CAM into conventional care, in and of itself, could result in malpractice liability, as well as professional discipline.

The regulatory framework governing CAM emerged in the late 19th Century, and regulation in this century requires wisdom and vision. Abraham Maslow proposed that human beings evolve along the hierarchy of personal needs. He called them survival, safety, "belongingness," esteem and self-actualization.

Similarly, from my perspective, legal authority might evolve along a hierarchy of regulatory needs. These include fraud control, quality assurance, health care freedom, integration and human transformation. These needs are not exclusive, but they do potentially represent different stages of thought about regulating CAM.

For example, fraud control and quality assurance, which you have heard a lot about, are important aspects of licensure, but they are neither the only nor the controlling variables. I will briefly describe the other three as I see them.

The value of health care freedom respects the flow of information such that consumers can make intelligent, voluntary, and autonomous decisions. Integration reflects the value of learning ways in which different medical systems, across cultures and across time, can teach our health care system today.

Finally, transformation reflects the value of protecting the aspect of CAM that deals with personal, as well as social, wholeness. At its broadest and deepest level, transformation involves the maturation of humanity toward notions of individuation, fulfillment, happiness and even enlightenment and planetary evolution.

A unified approach to regulation would account for all five levels. For example, (1) How can states protect consumers against fraud; (2) How can states encourage standards; (3) What kind of licensure or regulation most clearly enables consumers to make their own informed choices about health; (4) Which approach best respects the integration of different healing models, cultures and traditions; and (5) What kind of licensure or other regulation will best facilitate human transformation.

Such a unified approach has the potential to transcend the sectarian factionalism, turf battles, and professional monopolies that have dominated licensure, and thereby focus on compassion, healing and the best interests of the patient.

So, to summarize, there are five overarching policy considerations that set the framework for licensure in CAM:

First, many providers want licensure to gain legitimacy and avoid criminal liability under medical license laws.

Second, licensure is largely a matter of state law. States rely on the professional organizations to set standards and structures.

Third, licensure has a potential dark side, in terms of diminishing the heart and soul of CAM practice.

Fourth, several licensed CAM professions may share legal authority to practice a given modality.

Five, there are at least five different models for licensing CAM providers.

A state may choose mandatory licensure, title licensure, registration, exemption, the Minnesota model or some variation or combination of the above. Such a choice may emphasize varying combinations of controlling fraud, quality assurance, health care freedom, integration or facilitating transformation.

I hope that these five overarching principles can serve as touchstones in future debates concerning CAM licensure. By articulating these principles, the White House Commission can help guide the states in their own deliberations.

Lastly, the power to articulate principles is the power to create. Let us create the world that we choose and not the world we have inherited.

Thank you.

DR. GORDON: Thank you, Michael.
I was drawing on ideas that were becoming part of my new book, Future Medicine, with regard to a regulatory hierarchy of needs. The Q&A that followed was interesting. Boyd Landry, who was representing unlicensed healers, quoted one of my books, as follows:

Attorney and author, Michael Cohen, who sits to my right, in his first book stated, "Licensure, creating specialization and professional monopoly, has always allowed licensees to fend off non-licensed competitors." He further notes that medical licensure has proven ineffective in controlling incompetent or fraudulent practitioners.

Mr. Cohen also astutely observed, "Since medical licensing boards are staffed by individuals drawn from and committed to promoting the licensing profession, medical licensing accentuates the protections of the interests of parties other than patients."

Here are excerpts from the Q&A, including my response to the unexpected quotation of my own work:
DR. LOW DOG: I want to thank all of you for your presentations. I would like to actually talk to both Mr. Cohen and Mr. Landry.

I would certainly agree with you that, as far as comparison of pharmaceutical drugs and other things, that when you compare most natural remedies that are used appropriately, that there is far less risk of side effect or adverse reaction because they are far more dilute compounds, which is why, often, they take longer to work and they are usually less associated with so much toxic side effects.

I think we would all agree, though, that plants are pharmacologically active substances, and they can be used inappropriately, and that given the right circumstance, people can use them harmfully.

We had a patient recently, it was a couple of years ago at the VA Hospital, who was admitted in what looked like florid Digoxin cardio-toxicity, who had been given, from a local healer, a remedy for his failing kidneys, which had actually worked quite well for his failing kidneys, but he didn't have failing kidneys. He had congestive heart failure.

The plant that he had been given is very effective for congestive heart failure. It is inmortau [ph], which actually contains the cardenolide cardiac glycoside. However, he was toxic from it. It wasn't an interaction, it wasn't used with anything else. There are better ways to deal with congestive heart failure. Sometimes the problem with unlicensed therapists is that we don't know what we can't treat. We don't know where we step out of our boundaries or our scope of practice.

Now, do you feel, either one of you, when you are talking about licensure and scope of practice, other than an informed consent, should there be any scope of practice for herbalists, just an herbalist? Should there be any type of scope of practice there? Should there be any sort of licensure, education requirement, anything, so that we don't harm the public?

MR. COHEN: If I could just add a couple of correctives. First of all, thank you for quoting me, but it was not my conclusion that licensing boards are ineffective. I simply cited other scholars who have done original research, who have done that conclusion as a kind of warning that licensing boards don't always do what we hope and expect that they will.

Secondly, I am personally neither in favor of nor opposed to licensure. I simply tried to point out that there is a possible dark side that has to be taken into account as a kind of corrective.

Thirdly, the purpose of licensure is not simply to control fraud and create standards, but there are other potential values that come into the mix. Specifically, in terms of scope of practice there is a legal rule called the Duty to Refer, which basically says that when providers, such as chiropractors, exceed their scope of competence, they must refer to a medical doctor.

I would say that the Duty to Refer is a good generalizable principle for other professions, but at the point of the scope of competence, not the scope of practice, which is set by the standard, but the scope of what they are skilled and trained to do. At the point that that is exceeded, one should then refer the patient to somebody else, and that provides a kind of safety valve of protection.

It is a little bit complicated with herbs because, as I mentioned, one modality can be the province of several disciplines. So that is a big political battle, largely at the state level: who should have the authority to recommend herbs; what kind of evidence is required; should there be comparable training for M.D.s and non-M.D.s in this area. These are all open questions.

DR. LOW DOG: But you have made an assumption, though, about scope of practice and the ability to refer, the duty to refer. A chiropractor has training and is licensed.

I am not talking, really, about culturally intact healers. I am really talking about a lot of people who have read a few books and are healers. They are probably very well-intentioned and big-hearted, good people, but they may not have the training to actually know when they should refer. You have to have some basis to know when you are supposed to refer.

Giving an herb for your kidneys not working --

DR. GORDON: Tieraona, excuse me. Are you asking a question?


DR. LOW DOG: That was my question. Again, my question just comes back to, how would you know to refer?

DR. GORDON: So, Michael, do you want to be any more specific about any thoughts about licensure in this area?

MR. COHEN: Sure. Let me just clarify that if I could.

The duty to refer applies to licensed professionals. If somebody is unlicensed, and they are doing something that could fall into a licensed category, for example, diagnosing and treating disease, they could be prosecuted for the unlicensed practice of medicine, and possibly other professions as well.

So the unlicensed herbalist who recommends an herb and doesn't know what they are doing could be prosecuted for unlicensed medical practice. I hope that helps.

DR. GORDON: Okay. Thank you.

Wayne, George, and Tom.

DR. JONAS: Even if they do know what they are doing, they could be prosecuted.

It seems like we have an experiment going on, a natural experiment going on right now, at least with the Minnesota model, that might be worth evaluating. Although, I dare say it would be clear that you would see less adverse effects from natural treatments precisely because the insurance malpractice data that you described, which has, in my opinion, to do with the severity of the illness and of the treatments that are provided, not because one system is any worse or better than another.

Anesthesiologists have very, very high malpractice, and it is because of the risk of the type of practice that they are involved in. This, to me, is data that is not very useful. It is more polemic than anything.

My question really is, is there a role for the federal government in licensure, since it is under the state purview? What is our job here? Do we have any role on this, as a federally commissioned agency, to be involved in this at all? And if so, what would that be?

DR. GORDON: Michael, do you have any thoughts?

MR. COHEN: I wrestled long and hard with whether I could come up with any recommendations, and I think I made the choice not to, not to pass the buck or get off the hook, but simply because so much of it is dependent on state law, and so much of it occurs on a local level and is experimentation involving public bodies, a lot of debate, and a lot of it really is judge-made law, things like scope of practice, the duty to refer.

And so, in part, I think the debate is out of the hands of the Commission. But I think, that having been said, one can set overarching principles to try to shape the debate: What are the values that CAM represents; what are the values that this body has said is its overarching themes; are there other things to look at once we get beyond the debate about standards; and is licensure a good thing or a bad thing; and, what are the pros and cons.

So I think that by creating a very rich template for the debate, the Commission can then guide the states that are going to go on and repeat the debate in their own terms.

DR. GORDON: Sharon Hall, any thoughts?

MS. HALL: I agree pretty much with what Michael has said. From the medical malpractice perspective, we utilize standards of practice or scope of practice to identify or to defend a claim.

First of all, we do not insure anybody who is unlicensed or not certified, and I don't feel that my company would go into a state that did not have licensed or certified, say, naturopathic physicians or acupuncturists, and insure them.

So, from that perspective, we are focusing on a certain type of CAM practitioner that we feel very comfortable with that gives a certain standard of care. By their very nature, I think we have isolated some of those type of practitioners to provide the type of care that, from an insurance perspective, we would like to see given to the public.

DR. GORDON: Thank you.


MR. LANDRY: I would like to respond to the question, Dr. Gordon.


MR. LANDRY: I think one thing that should be abundantly clear, in the history of this country, we are constantly debating and battling over to what extent government gets involved in the lives of the people. Where something may have been appropriate 50 years ago, may not be appropriate today, and I think that is something we always have to pay attention to because some of the things that may have been appropriate 50 years ago may be exactly what has caused the problems today.

That is always something that has to resonate in the back of our minds as we grapple with the role of government in the lives of the people.

DR. GORDON: Thank you.

George, and Tom, and then Joe.

MR. DeVRIES: Question for Michael Cohen.

I know in the organization I work with -- I work with health plans to help them provide benefits for employers -- and I think, consistent with what Sharon Hall has said, the understanding of what we see is if the provider isn't licensed, then there is really no ability to work with them from a position of third-party reimbursement.

From the position of the Commission, as they look at what kind of influence they can have across the country as related to CAM, while the states regulate health care, potentially the White House Commission could recommend minimum statutes related to licensing of provider groups like acupuncture and naturopathy.

What would be your thoughts related to that? It ultimately would come down to the states' decisions, and they would have to enact licensure or statute, but would we be appropriate to make a recommendation?

MR. COHEN: I am trying to understand your question. Are you asking whether you should recommend that specific providers be licensed in all states?

MR. DeVRIES: There is a tremendous inconsistency, for example, with acupuncture, on how it is licensed across the country. Naturopathy is only licensed in roughly 11 or 12 states, and there are active efforts to have it licensed in other states. Yet, for many states, they don't have a guidepost on which way to go with these statutes, and they are looking to what has been done before, but there is not a strong guideline for them in terms of what they could emulate and enact in their states.

MR. COHEN: I think a couple of things could be done. One is the House of Lords recommended, basically, that the professions consolidate their regulatory bodies so that they make more sense.

You could recommend that if there is a non-licensed profession, for example, energy healing, that groups in that therapy, aroma therapy, that they come together and create more coherent professional structures because those professional structures can be prerequisites to licensing, as they have been in the other professions. So if that is a desirable goal, that is one recommendation.

On the other hand, I think we have already talked about some of the problems, in terms of having uniform standards, the second part of it. There would be more consistency. Inconsistency is a problem. For example, for physicians who want to refer across the states, they don't know what an acupuncturist means in Tennessee versus in Alaska.

On the other hand, the problems of greater consistency should also be acknowledged, the uniformity, the standardization. So that, some of the problems of medicine might be repeated in CAM, which I refer to as losing the heart and soul of practice, again, recognizing that tension.

So I would not necessarily be in favor of mandating consistency, but perhaps encouraging a study of what could be done to harmonize some of these issues.

Finally, I think it would be difficult to come up with a recommendation as to which providers should be licensed uniformly across the states. Acupuncture, there are 37 to 40 states that license non-M.D. acupuncturists, but when you look at the broad spectrum of CAM, which professions are you going to recommend that they obtain licensure, and on what basis, and what are the criteria that you would select that would give a profession candidacy for licensure?

In my own experience ... these issues are very, very thorny at the state level, and they are very complex and really require a lot of input. So it would be nice to have national policy on these issues, but I think that it is very complex and, in practice, may be a hard thing to achieve.

I hope I have started to answer your questions.

DR. GORDON: Thank you.


MR. CHAPPELL: Michael Cohen, I would like to ask, since you have made clear that you don't have a recommendation for licensure or non-licensure, could you tell us how you would go about, as a consumer, discerning a CAM practitioner for you or a member of your family?

MR. COHEN: If I understand the question, it is whether licensure is important, or how important a variable is the fact that somebody is licensed and making a choice.

MR. CHAPPELL: That is another way of looking at it. I am really just asking, how would you make a selection, as a consumer, and is licensure important?

MR. COHEN: If I take off my "scholarly hat," I personally go to providers through a variety of routes, some of them are recommended by a physician, some are licensed, some are not. Some people have the highest certification and use science- and evidence-based medicine. Others use intuition.

When I go into a health food store, how do I pick echinacea versus some other supplement? Do I read what the JAMA says? Do I consult with a physician? Do I listen to my grandmother? Do I throw the bones and consult the spirits? Do I trust my own intuition? Do I talk to friends? I think that all of these things are important to me.

So, from a public policy perspective, the question is which sources of information, if I could just reframe it a little bit.


MR. COHEN: Are there sources of information, in addition to or beyond the mere fact that somebody is licensed, that one should allow into the mix, into the system, to influence consumers; is there a different way of thinking about it.

That is why, provocatively, I put in this goal of transformation, because, it seems to me, that transformation is the heart and soul and essence of a lot of therapies that we don't understand, that we don't know how to look at, that may require skills training or an experiential base to incorporate.

Thereby, if that is an important goal, it just opens up the way that we look at this a little bit.

MR. CHAPPELL: So discovery might be dampened by a licensing requirement. I think you have said that, actually, in your paper. That is helpful. Thank you.

MR. COHEN: I am just saying I think we should keep an open mind, and I think, as Wayne Jonas said, we are in a period of experimentation, where things that came in in the 1700s might look different in 50 years.

DR. GORDON: Thank you.
James Gordon, MD was Chairman of the Commission.
The Law Offices of Michael H. Cohen offers corporate legal services, litigation consultation, and expertise in health law with a unique focus on holistic, alternative, complementary, and integrative medical therapies. The law firm represents medical doctors, allied health professionals (from psychologists to nurses and dentists) and other clinicians (from chiropractors to naturopathic physicians, massage therapists, and acupuncturists), entrepreneurs, hospitals, and educational organizations, health care institutions, and individuals and corporations.

Michael H. Cohen is Principal in Law Offices of Michael H. Cohen and also President of The Institute for Integrative and Energy Medicine, a nonprofit organization exploring legal, regulatory, ethical, and health policy issues in the judicious integration of complementary and alternative medical therapies (such as acupuncture and traditional oriental medicine, chiropractic, naturopathic medicine, homeopathy, massage therapy, energy healing, and herbal medicine) and conventional clinical care. Michael H. Cohen is author of books on health care law, regulation, ethics and policy dealing with complementary, alternative and integrative medicine, including Healing at the Borderland of Medicine and Religion, 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).
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