Written by Varadaan Lipman | 30 May 2011
Credentials of Health Professionals and Practitioners of Traditional and Natural Therapies
By Ben “Varadaan” Lipman, BS, RYT, ASP2
The topic of credentialing those in the healing arts can get a bit complicated. Not only are there different grades of credential in the eyes of government, but it seems there are almost as many kinds of credential as there are practitioners. Every year we see new modalities, trainings, tools appearing, not just in alternativate medicine, but with conventional medicine as well. A new technology or way of thinking begets a whole new field of medicine. The bottom line: most of the legal structures currently in place relate to the confluence of business interests and the legislators’ charge to protect the public. While a practitioner is wise to avoid running afoul of the law, a consumer of health services will do well to understand some of these basic topics, for safety, but also to appreciate who may or may not be following professional standards for their field.
Of course there are some people who are primarily interested in money, but most people engaged in the healing arts desire to help others; their hearts are in the right place. The broad world of healing arts and the realm of law are kind of like oil and water — authentic healing practitioners primarily committed to helping others are not as concerned with making a lot of money or crossing every legal ‘t’. And yet we inhabit a society governed by laws, laws that have been created through an engagement of special interests with the legislative process. So we are wise to appreciate the real hazards, and steer clear of legal trouble, if possible, either as practitioners or as a consumers of services.
The purpose of this article is to offer some perspective on these issues. This is just a report from a fellow practitioner, who has explored these topics in some depth. If you need legal advice, consult a lawyer. If you have any medical condition, it is highly recommended that you get two or more professional opinions before making any treatment decisions. The best way to select a practitioner is to receive a recommendation from someone you trust. It is often very helpful to be referred to a professional from another professional who knows you, your case, and your specific needs, and is committed to your cost-effective path to wellness.
When exploring the concept of credentialing, there are several considerations. On the one hand, there are concerns of legal liability. On the other, there are protected scopes of practice, established in Colorado law, and there are also trademarked business names, efforts to protect the good name of particular ‘brands’ and other ancillary concerns. To begin with, it is important to understand some different terms, such as Licensure, Certification and Registration.
Licensure involves a formal credential, established by State law. However, licensure does not necessarily ensure competence, and says nothing about the potential match of a client to a practitioner on the basis of personality, style, special expertise, etc. Generally, Licensure requires a specific degree and area of training, and oversight by some State or National body or organization. The formal structure of Licensure typically means there are review boards or grievance processes, sanctioning for unethical, incompetent or illegal activities, and generally, public access to records about Licensed practitioners. An exception is the ‘secret letter’ process used by the Colorado Medical Board, whereby doctors may not have public records, even in cases of significant malpractice.
One particular characteristic of Licensure, is the legal codification of a ‘scope of practice’. A scope of practice is a specific legal description of what a particular profession is licensed to do, e.g. Acupuncturists can insert needles into people in accordance with their training, and others allowed to do this activity are Chiropractors, Physical Therapists, Physicians Assistants, Nurses, and MD’s, each with specific limitations. In addition to particular medical specialties, each with their own area of expertise, in Colorado there are particular Scopes of Practice for Nurse Practitioners, Physician’s Assistants, Pharmacists, Physical Therapists, Licensed Counselors, Chiropractors, Acupuncturists, Massage Therapists, etc. These scopes of practice are established in Colorado Law, and are periodically revised.
On the other hand certification programs can take almost any form; in some cases a certificate program involves years of hard work, while another with a similar name may be conferred after attending a weekend workshop. Thus, certificate programs may or may not mean very much – a certificate may or may not imply real expertise in a given modality. While Licensure is a formal legal status emanating from State Law, and is governed by State regulatory bodies, a Certification is only as reliable or meaningful as the entity that has issued it, although State law may interlink with certification or registration programs, as it did with Physicians’ Assistants until a few years ago.
Registration is typically some way the State maintains a database of practitioners. It is a way to attempt to track who is operating within a particular scope of practice, though they may not have sufficient training for Licensure or a particular certification. An example in the State of Colorado is the registry of Unlicensend Counsellors, which is in addition to the Licensure for those who meet the appropriate qualifications.
The main point here, is that for those who are operating within an established, licensed scope of practice, if holding a License to Practice, the legal situation is fairly clear; such a person is not “practicing medicine without a license”. Everyone else, formally, is on thin ice. Unlicensed practitioners includes those offering energetic healing, reiki, shiatsu, Ayurveda, polarity and craniosacral therapy, rolfing, herbalism, homeopathy, naturopathy, and detoxification practices and therapies, among many others including culturally traditional healing practices such as shamanism and prayer.
Specifically without a License to Practice, according to current Colorado state law, there should not be “Diagnosis and Treatment of Disease”. Also there should not be activity that is formally within a protected, Licensed Scope of Practice, such as performing injections or surgery or prescribing what are recognized as ‘drugs’ by the FDA. Meanwhile, prosecution for the practice of medicine without a license is difficult without the legal ability to prove harm. Thus, DORA, the Department of Regulatory Agencies in Colorado, is not especially concerned with therapeutic modalities that are considered ‘harmless’. Therefore, many who are operating without formal licensure are wise to ‘do no harm’, and typically are careful to formally restrict their activities to education about diet and lifestyle. While this particular activity does possibly encroach somewhat the vague terms of CRS 12-36-106, it is generally understood in legal circles to be allowed activity, so long as one is engaged only in Education about Diet and Lifestyle, and otherwise is not operating within an established, protected, Scope of Practice. It is also imperative, that should issues arise that are beyond a practitioner’s scope of practice, that the practitioner refer the client/patient to a suitable professional. A corollary to this concerns medical doctors’ typically limited training on the nuanced use of herbal medicines. In fact, until Ron Tupa’s HB1183 passed in 1997, in Colorado it was illegal for MD’s to practice Alternative Medicine, and at least one doctor lost his license in the year preceding this legal change, for recommending herbs, etc. Times are changing. CAM, complementary and alternative medicine, which can offer important options for challenging diseases, is becoming common in more sophisticated medical offices.
History and Politics of Licensure
To understand the overall context for this realm, perhaps we need to go back to the beginning, to a hundred year old fight between Allopathic Medical Doctors and Homeopathic Doctors. Over a hundred years ago, Homeopathic medicine was widely practiced and considered effective. Ulysses Grant carried homeopathic medicine in the field, as a primary treatment regime, likely in conjunction with emergency surgical techniques. It was a natural evolution of formal medical science, as allopathic medicine took stage center, that the American Medical Association had profound influence in licensing, medical schools, and other areas of medicine. Undoubtedly, it is the AMA that was instrumental in encoding into State Laws, the requirement for licensure and the definition of the legal term “Practice of Medicine”, with very broad definitions. Today, we have a legal situation where Medical Doctors have established an interlinking, licensed tapestry of Scopes of Practice, wherein almost any medical procedure is allowed through detailed regulation, and without some Licensed Scope of Practice, in Colorado very little is formally allowed, per Colorado Revised Statute 12-36-106. Occasionally one professional area, with its association, lobbyists, and so forth will try to extend its scope of practice into another. Some groups are highly aggressive, and turf wars are an ongoing activity. This is serious business, sometimes fought in court. A classic example would be the effort by the AMA to contain and eliminate the Chiropractic profession, which led to four antitrust cases culminating in a verdict against the AMA in 1990.
As you may be aware, different laws sometimes offer conflicting mandates, and law is a dynamic, living condition, always subject to change. Thus we have rulings by the Supreme Court which from time to time, as a matter of interpretation, change the practice and enforcement of law in the United States. The Federal DSHEA law ensures everyone in the U.S. has the right to buy any supplement. So while you can go down to your local health food store and buy any supplement, there are formal legal limits as to how you might be advised in the selection or use of a supplement. If a person walks in and says: “I have been diagnosed by a Medical Doctor with this disease, what do you recommend?” The salesperson can then say “well, for that condition, these supplements have been studied to have these effects”. What is not supposed to happen, might be “Hi, I have these symptoms, what do you recommend?” Salesperson: “Hmm sounds like you have a condition called __________. I suggest you take this supplement, which should treat that condition.” Remember, formally, it is illegal to diagnose and treat a disease without a license to practice medicine.
Current Legal Definition of “The Practice of Medicine” in the State of Colorado
Here is some of the extraordinarily broad language of CRS 12-36-106:
(1) For the purpose of this article, "practice of medicine" means:
(a) Holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate, or prevent any human disease, ailment, pain, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, telemedicine, the interpretation of tests, including primary diagnosis of pathology specimens, images, or photographs, or any physical, mechanical, or other means whatsoever;
(b) Suggesting, recommending, prescribing, or administering any form of treatment, operation, or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition, or defect of any person;
(c) The maintenance of an office or other place for the purpose of examining or treating persons afflicted with disease, injury, or defect of body or mind;
CRS 12-36-106 is so broad that:
A woman watching her neighbor’s children, and upon feeling a forehead and detecting slight fever, then decides to serve chicken noodle soup, she is eligible for prosecution under the current language of CRS 12-36-106., as would be someone seeing a friend who is overweight recommending they stop eating cheeseburgers. DORA does not prosecute in such instances, or for that matter currently for most alternative health practitioners, but that does not alleviate the issue where there is language enshrined in the statutes that creates a vague and murky legal condition for perhaps 16,000 practitioners in the State, and for the perhaps two million Coloradoans who depend upon them for wellness care.
Colorado’s 12-36-106 sets the backdrop for discussion of what people should be allowed to do, whether they are licensed or not, and how licensure can in some cases serve government’s purpose to ensure public safety while protecting fee and fair markets. While this statute enables DORA to pursue criminal litigation when harm has been done, it creates complication and a climate of fear for the thousands of non-licensed wellness providers. While some would like to see all non-licensed wellness practitioners put under licensure, registration or certification, others feel that is either not possible because of the incredible diversity that is present, or disagree with a bureaucratic approach that will ultimately and needlessly increase the cost and complexity of providing care.
The general trend in the United States, is toward creating more freedom and access to alternative and natural therapies. A number of states have found a different approach, that is working, and keeps a substantial amount of money and energy within the activity of promoting wellness for people, as in New Mexico. Licensure and bureaucracy tends to increase costs; deregulation opens markets. DSHEA represents this kind of “Health Freedom” legislation, as does the recently passed Health Freedom Legislation in New Mexico, HB0664-2009, which gives alternative practitioners the legal right to practice, but also clearly outlines what is not within any unlicensed practitioner’s scope of practice, such as performing injections or surgery, or prescribing prescription drugs. When we are facing the kind of access problems, excess costs and other issues with our healthcare system, it is important that we find a way to enable alternative practitioners to participate meaningfully in providing care, without fear of vague overly broad legal language like we currently have in Colorado. Unlicensed alternative practitioners need to be given a legal way to practice the full scope of their safe healing arts, and specific direction as to what they can and cannot do. This is the main thrust of Health Freedom efforts throughout the country. Strategically it may be important for Health Freedom Legislation to pass first, so that efforts by particular Alternative Medicine modalities to secure licensure can then avoid the difficult conflicts over scope of practice. This will reduce costs, increase access, and improve our collective wellness.
Nationally, Ayurveda Professionals are advocating Health Freedom legislation instead of Licensure. The reason is a feeling that access to any safe therapy should be unregulated, and generally available. There is an understanding that Licensure increases costs, and healthcare in general needs to be more accessible and more affordable. In the case of Ayurveda, we discuss Doshic Balance and make diet and lifestyle recommendations to enhance wellness in terms of Doshas, Dhatus, etc. Thus we do not diagnose or treat disease as recognized by Allopathic medicine. We do work with underlying states of wellness, and actually attempt to prevent an imbalance from going so far that an Allopathic physician will have the opportunity to diagnose a condition or disease, assign a diagnostic code, and treat it with conventional medicine.
Right now, professional massage with Ayurvedic oils, called Abhyanga, requires a massage license, per DORA and the newest Massage Therapy Legislation, circa 2008. Why? Because oil massage on skin is a very sensuous activity, and without sufficient training about the hazards of potential ‘sexual contact’, the practitioner and client are at risk on various legal, ethical, psychological levels. While it is the case that not every Ayurvedic practitioner agrees with the implications of the change of language for the Massage Licensure, many at least understand the importance of addressing the associated issue, to protect the public. One day, we may have a training program just for Abhyanga practitioners that does not require all of the detailed anatomical training required for standard massage therapists, but is sufficient to protect practitioner and client from these hazards. With a training and certification or licensure process in place, then we might petition the State legislature for a change in language allowing Abhyanga practitioners to proceed without needing the full training of Massage Therapists, as required in the State of Colorado.
Back to Licensure
A few years ago in Colorado, a man calling himself a Naturopathic Doctor injected hydrogen peroxide into a cancer patient. The young boy did have end stage cancer, and traditional Allopathic medicine had nothing to offer, but sadly he died on the table of this practitioner. Because this practitioner was injecting substances into the human body without a license of any kind, he was clearly practicing medicine without a license. He called himself ‘Doctor’, and was wearing a white coat. How was the family to know that this person was practicing outside his ‘scope of practice’?
In other words, where there is a clear danger to the public, it is quite reasonable to have clear legal instruction about what can and cannot be done, and by whom. This is how a society protects its members. What we need to be vigilant about, however, is when special business interests use the legislative process to protect their turf and to lock out competition from shared scopes of practice. When we get into the alternative health realms, there will be more scopes of practice and likely, less clear boundaries about who should ‘own’ what territories of activity. Complicating everything is lack of agreement about what should be allowed, by whom, for whom, etc. Ultimately we enter a political discussion, a matter of philosophy.
But there is also the reality that two people going through similar training will attain different degrees of competency. This is true in any field. So we come back to referrals – get a referral from someone you trust, if possible. Interview your prospective practitioner – do their philosophies about wellness and care match your own? Do the two of you agree about the balance point for using allopathic and alternative approaches? How long have they been doing what they do? What is their training? Can you talk to someone familiar with their work? Does this practitioner work in an integrative way, with other practitioners, possibly including MDs? If you are facing in important treatment decision, have you talked to more than one practitioner, and is there some convergence of opinions that leads you to go forward with this particular modality and this particular provider?
This article ©2011, Ben “Varadaan” Lipman, 302 Pearl St, Boulder, CO 80302, USA. All Rights Reserved. A version of this article with additional material specific to Ayurvedic practitioners can be found at www.coloradoayurveda.org, on the legal tab.
Varadaan is the principal practitioner of Boulder Ayurveda, Inc., and President of the Colorado Ayurvedic Medical Association (COLORAMA). Visit www.coloradoayurveda.org and www.BoulderAyurveda.com for more information.
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For a pdf of this article, click here.Last Updated on 30 May 2011