The American Medical Association (AMA) published an article on licensing of complementary and alternative medicine practitioners in Virtual Mentor.

Michael H. Cohen co-authored an article on licensing of CAM practitioners in the AMA’s Virtual Mentor.  

The article begins by informing readers how and why states control health care licensure. Essentially, licensing health care providers comes out of the 10th Amendment, which delegates regulation of health to the states and not the federal government,  A key U.S. Supreme Court case, early on (Dent v. West Virginia) enshrined this principle in Constitutional law:

Around the time of Dent, the states began enacting medical licensing statutes. Today, all states define the “practice of medicine,” in part, by using such words as diagnosis, treatment, prevention, cure, and prescribe, in connection with disease, injury, and mental or physical condition [3]. State law came to designate the practice of medicine without a license as a crime.

Subsequent cases relied on the Dent holding to interpret the medical licensing statutes and uphold prosecutions against a variety of complementary and alternative medicine (“CAM”) practitioners. For example, in People v. Amber, an acupuncturist argued that the statutory prohibition on unlicensed “practice of medicine” referred only to “Western allopathic medicine” and did not encompass systems such as Chinese acupuncture, which differs in its “philosophy, practice and technique” [4]. The court disagreed, holding that any “‘sizing up’ or a comprehending of the physical or mental status of a patient” constitutes diagnosis, which is part of the practice of medicine [5]. Similarly, other cases involved prosecutions of practitioners of modalities such as hands-on healing [6], iridology [7], and homeopathy [8]. In each case, courts interpreted statutory terms such as “diagnosis” and “treatment” broadly. Courts have also resisted constitutional challenges to health care licensure on a variety of fronts, including challenges based on free exercise and due process limitations [3].

Licensing of allied health providers, such as dentists, psychologists, and nurses, followed:

In response to the prosecution of CAM practitioners for unlicensed medical practice, efforts arose to garner statutory licensing for different CAM professional groups. Presently, chiropractors are licensed in every state; acupuncturists and massage therapists, in over 40 states; and naturopathic physicians, in at least 15 [10].

Like allied health professionals, CAM practitioners have limited licensure and a designated scope of practice. For example, chiropractors can manipulate the spine and provide certain ancillary therapies but may not diagnose and treat disease or otherwise practice “medicine;” massage therapists may deal with emotional content that arises during bodywork, but may not practice “psychology.” The legal boundaries of scope of practice vary and are sometimes difficult to ascertain [9].

The article discusses different types of licensure, from mandatory licensure to title licensure and registration:

States also use exemptions to licensure as a mechanism to authorize health care practices. For example, in response to the proliferation of interstate electronic communications among clinicians, some states have elected (in lieu of explicit telemedicine statutes) to carve out exemptions from state licensing laws to provide that out-of-state physicians who periodically consult with in-state physicians about in-state patients are not considered to be practicing “medicine” within the state [9]. Similarly, some states exempt practices such as reflexology from medical and massage therapy licensing laws [9].

One interesting variation is a California statute authorizing health care practices by nonlicensed health care professionals, so long as they do not practice “medicine,” make appropriate disclosures to consumers, provide appropriate informed consent, and meet other specified requirements [12].

Licensure as Opposed to Certification, Accreditation, and Credentialing

The article goes on to distinguish licensure from related concepts such as certification, accreditation, and credentialing….

Another key concept is the debate as to whether licensure is a net good or detriment to CAM practice.

The article continues with thoughts about how health care reform is changing the landscape of CAM:

The trend towards medical pluralism and inclusion of CAM practitioners appears to be accelerating as a result of the federal Patient Protection and Affordable Care Act (ACA) enacted in March 2010. Notably, for example, Section 2706 of the ACA includes a nondiscrimination provision, championed by chiropractors, that prohibits health care payors from discriminating “against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law” [15, 16]. Elsewhere, the ACA calls for the inclusion of CAM practitioners in new community-based, interdisciplinary health teams (Section 3502) and recognizes both CAM practitioners and chiropractors as part of the health care workforce for purposes of a new National Healthcare Workforce Commission. It will be interesting to see whether the expanding role (and possibility of federal funding) for CAM services leads to an influx of new practitioners and changes in state licensing requirements.

For the full reference, see Virtual Mentor, and also see Michael H. Cohen, Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (Johns Hopkins University Press, 1998) on which much of the article was based.

Attorney Michael H. Cohen was lead author on the article, and co-author was Harry Nelson at Fenton Nelson, LLP, a Los Angeles based law firm,

Michael H. Cohen is a thought leader in health care law, pioneering legal strategies and solutions for business law clients in traditional and emerging healthcare. wellness, and lifestyle markets.  As a corporate and regulatory attorney who has also handled litigation matters, Mr. Cohen represents conscious business leaders in a transformational era.

Clients seek Mr. Cohen’s specialized expertise on business structure and entity formation (corporations, partnerships, LLCs); health care licensing matters; employment contracts and independent contractor agreements; dispute resolution; e-commerce; intellectual property issues; informed consent and malpractice liability issues; HIPAA and confidentiality and privacy issues; Stark, self-referral, anti-kickback, patient brokering, and fee-splitting questions; dietary supplement labeling; medical device and FDA matters; insurance reimbursement and Medicare issues; website disclaimers; concierge medicine legal advice; telemedicine; and other business law and health care regulatory compliance arenas.  Whether advising start-ups or established companies, he brings his entrepreneurial spirit and caring insight to cutting-edge legal and regulatory challenges.

Mr. Cohen is admitted to practice in California, Massachusetts New York, and Washington, D.C.  Contact our attorneys at our Beverly Hills, California law firm today.