Technical Details on COLORAMA’S POSITION – NO ON HB1173

Written by Administrator | 27 February 2011

Offered by Varadaan (who is not a lawyer):

Some people have written that they look at the language of HB1173 and don’t understand what the concern is about.  Indeed, the ND’s claim the bill will not affect other practitioners.  COLORAMA did its own due diligence with Counsel before taking a NO position on the bill, because we are an independent organization.  This analysis resulted in our FAIR ACCESS AMENDMENT.  There are additional concerns about allowing one subgroup of alternative and natural therapies to have licensure while others are unlikely to fit within that model, and longterm implications for legislation such as we have in New Mexico with HB0664 since 2009, that clarify the whole matter.  But, here I will be offering our chief concern with Colorado HB11-1173, as we know it now:

First we have to understand two things.  One is that law is not always straight, uncomplicated, and clear, especially once it is applied to the real world.  Sometimes what makes sense in terms of English, ends up having other implications in a legal context.  One reason for this, is that a body of law, such as the Colorado Revised Statutes, may have laws that relate to and interact with each other, not unlike modules in computer code.  Efforts are made to ensure these modules interlink with each other, but laws are made by people engaged in political processes, who often are representing special interests.  Thus it is not uncommon because of this political process for bills to become law while containing vague and broad terms.

The second thing that must be understood is that there is an existing law that complicates matters for anybody offering natural, alternative, or traditional wellness therapy in Colorado.  This is CRS 12-36-106, which defines “the practice of medicine.” 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.

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 fair and free 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 bloated bureaucratic approach that will ultimately and needlessly increase the cost and complexity of providing care.  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.

Returning to the current issue at hand. . .

The term that is causing trouble, because of its potential implications, in HB11-1173, as drafted, is “a person’s lawful rights”.  This sounds reasonable and innocuous, but lets examine how it plays out in this context.  If we were to summarize the bill, it might be like this:
Naturapathic Doctors, graduating from some 6 schools in North America, are hereby licensed to do almost any therapy, including practices usually reserved only for MD’s.
Other practitioners may do a few things, but just limited to making recommendations, so long as
1)    “the therapy is within the person’s lawful rights” or the person is a licensed health care provider
AND
2)    The person or practitioner does not hold him/her self out to the public as practicing as a naturopathic doctor.

If 2) was the only concern, as the ND’s assert, then we might ask, why is 1) here?  Furthermore, the term “person’s lawful rights” cannot be found in any other law in Colorado, and will be subject to fresh interpretation – there is no precedent for use of this term in law in Colorado.  The concern is that this innocuous looking term may in fact exclude all non-licensed practitioners from practicing under the very broad scope of practice that is here defined for “Naturopathic Doctors”, and may even do so should they wish to  do so under the direct supervision of an MD, per 12-36-106(3)(l).  DORA pursues on a complaint basis, and while they won’t be arresting thousands right away, thay can issue cease and desist orders.  The prospect of putting the most successful, competent and responsible non-licensed practitioners out of business, including those using Ayurveda, Homeopathy, Herbalism, Yoga, etc., is of real concern.


Some of our legal concerns, presented by counsel, are in print:
http://www.dailycamera.com/boulder-county-news/ci_17435124

Boulder's Daily Camera Editorial, suggesting this all may indeed be more about turf wars than protecting the public:  http://www.dailycamera.com/ci_17483870

Link to New Mexico’s Unlicensed Health Care Practice Act, HB0664, which established specific guidelines for practice and clarifies the law for unlicensed wellness providers.

More information on NM’s HB0664 (2009) is on offer at: www.nmcaamp.org