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by David M. Sale, J.D., LL.M.
I wish to express my deepest gratitude to Robert M. Duggan, MA, MAc, President of the Traditional Acupuncture Institute, for his enthusiastic response to the initial proposal for this study and for his key role in laying the groundwork for its accomplishment. I would also like to thank Sherman Cohn, J.D., Professor of Law at Georgetown Law Center, for his review and comments concerning the study and for his role in coordinating the legal data base research performed by law students Stephen A. Saxe, Julia A. Tchernysh, and Rick Madden of Georgetown Law Center. To these law students I offer my sincere appreciation for a job well done.
I would also like to thank the numerous alternative practitioners and professional associations for providing copies of pending and recently enacted legislation before general publication of these documents and for contributing important insights into the legislative issues affecting their particular professions. To the professional staff of the various state health boards and agencies who also provided relevant materials and important clarifications concerning administrative practice, I thank you for your assistance and insights.
Finally, I express my sincerest gratitude to the John E. Fetzer Institute for its financial support for this study, its foresight in acknowledging the critical importance of the legal dimension of alternative health care, and its continuing commitment to the field of mind/body research.
A recent study published in the New England Journal of medicine reported that the use of alternative therapies is widespread in the United States and that some 61 million Americans made about 425 million visits to alternative providers in 1990. According to the study, consumers spent approximately S13.7 billion on alternative care in that year and paid three fourths of this amount ($10.3 billion) out of their own pockets. Moreover, the use of these therapies was not limited to a narrow segment of American society, but ranged from 23 to 53 percent in all sociodemographic groups considered by the study.
In addition to significant consumer demand for alternative health care services, current interest in this field is evident in the establishment of the Office of Alternative Medicine at the National Institutes of Health,3 the growing interest of private insurers in providing coverage for various alternative treatments,4 unification efforts within the alternative health care community for concerted political action,5 provision of alternative therapies in selected clinical and hospital settings,6 incorporation of alternative care curricula as part of medical school education,7 and what appears to be a dramatic increase in the literature of this field and the number of alternative practitioners and therapies. The synergistic relationship among these patterns of activity provides a powerful impetus for recognition of an alternative health care paradigm and challenges both alternative and conventional health care communities to seek common ground in a healing ideal that is primarily centered on the best interest of the patient.
Efforts by alternative and conventional constituencies to adjust to the changing paradigm also occur in judicial and legislative arenas. In these forums alternative practitioners and their patients and clients may seek greater practice and access rights concerning therapies that lack formal legal recognition and governmental agencies and others may endeavor to preserve and enforce existing standards of health care. In recognition of the importance in its own right of recent statutory activity, particularly as evidence of official public policy concerning specific alternative modalities and as a further reflection of the continuing paradigmatic shift in health care generally, this study provides a general overview of legislative developments in the United States concerning alternative forms of treatment.
Parts I and II of the study note statutory developments primarily at the state level with some reference to selected federal laws governing particular modalities. These developments are presented in three categories to coincide with the general pattern in which alternative health care legislation currently exists in the United States: (1) provider practice acts regulating a particular alternative modality comprehensively through licensure, registration, or certification; (2) single references to specific complementary therapies or techniques, typically in the context of a statute that defines the scope of practice for a more systematically regulated modality, and (3) provisions of medical practice or uniform disciplinary acts conditionally authorizing physicians or other providers to employ unspecified alternative therapies.
As is true for health care professions generally, the form of legislative authorization in which a state chooses to sanction the practice of an alternative modality may be through licensure, certification, or registration with the appropriate administrative entity. State laws conferring licensure on alternative practitioners generally represent the most formal and extensive authorization of practice rights and typically specify the scope of practice for the therapy, the academic, examination, and other qualifications requisite to acquisition of a license, the regulatory authority of an administrative unit, grounds for disciplinary action against practitioners, and penalties for violations of the licensure act. In some states, however, laws that embody a certification or registration scheme for an alternative modality may not differ substantially in content from enactments that mandate licensure.
Of the many possible topics that could be discussed concerning alternative modalities subject to regulation under state provider practice acts (e.g., regulatory history, educational and training requirements for practitioners, extent of interstate reciprocity, use of professional titles, advertising rights, extent of insurance coverage for the modality, standard of care, etc.), the portion of the study which considers provider practice legislation (PartI-A) is, for purposes of an overview, generally limited to an identification of scope of practice rights, the operative administrative structure for the modality, and the practice rights of other providers. Some deviation from this topical scheme occurs to treat statutory provisions which seem significant in their unique application to particular modalities (e.g., medical supervision of acupuncture, recognition of acupuncture in substance abuse legislation, and state deference to local regulation of massage).
Although legislation directly applicable to alternative health care is primarily found at the state level, significant federal legislative developments of a general nature also exist. Accordingly, Part III of the study notes-the establishment of the Office of Alternative Medicine in the National Institutes of Health and the regulation of dietary supplements by the federal Food and Drug Administration, as well as several unenacted measures proposed during the 103d Congress that were of interest to the alternative health care community.
The principal purpose of the study is to present an informational overview of legislative enactments concerning a number of well-known and less familiar alternative therapies. While the list of therapies treated in this study is not exhaustive, the modalities selected for consideration collectively comprise a substantial portion of the statutory mosaic of alternative health care. In order to identify relevant legislation, a search of legal data bases was conducted for the modalities and terminology listed in Appendix 1. Owing to the voluminous number of entries for the professions of chiropractic and osteopathy, as well as what is arguably the substantial incorporation of these therapies into mainstream health care, the study does not provide an overview of legislation concerning these forms of treatment. (8)
While every effort has been made to provide only the most current
statutory information concerning treatments discussed in the study,
the law in the alternative health care field changes rapidly and
the reader is advised to check the most recent supplements to
existing codes and session laws for definitive guidance.
I. SPECIFIC ALTERNATIVE MODALITIES
This part presents an overview of primarily state legislation
concerning four well-known alternative modalities regulated by
provider practice acts in at least three jurisdictions ( i.e.,
acupuncture, homeopathy, massage, and naturopathy) and some twenty-seven
other alternative therapies generally referenced by statute only
in the context of the scope of practice for more comprehensively
regulated modalities. Where applicable, this part also notes selected
federal laws that pertain to a specific alternative therapy.
A. Provider Practice Acts
1. Acupuncture
The ancient healing art of acupuncture is presently regulated
by practice acts in twenty-six states and in the District of Columbia
(Appendix 2). Although most states enacted acupuncture laws in
the 1970's and 1980's after the favorable personal account about
this modality in 1971 by James Reston, a columnist for the new
York Times, there has been significant legislative activity in
recent years with the adoption of new practice acts in Iowa, Texas,
and North Carolina in 1993 and the creation of an independent
board of acupuncture in Maryland in 1994.1 In states that have
not enacted acupuncture practice acts, the use of this modality
may be deemed the practice of medicine with practice rights limited
to designated medical providers or granted to non physician acupuncturists
who are medically supervised.2
Scope of Practice. Although statutory definitions of what constitutes the practice of acupuncture vary, the modality is frequently described as the stimulation of certain points on or near the surface of the human body by the insertion of needles to prevent or modify the perception of pain, to normalize physiological functions, or to treat certain diseases or dysfunctions of the body.3 The distinctively energetic quality of acupuncture is noted in several statutes which reference its utility in "controlling and regulating the flow and balance of energy in the body," or in "normalizing energetic physiological function."4 Many statues define acupuncture on the basis of "traditional" Chinese or Oriental medical concepts, while laws in other jurisdictions also reference modern Chinese or Oriental medical concepts or modern techniques of diagnostic evaluation.5
State enactments authorize acupuncturists to employ a wide variety of adjunctive therapies in the course of administering acupuncture treatment. The number and type of specific therapies differs from state to state, but the following composite list drawn from applicable practice acts illustrates the broad range of supplementary techniques authorized under current law:
Licensure is the most common form of authorization for the practice of acupuncture and is granted in sixteen states.11 Three states mandate registration for acupuncturists12 and five states issue certifications for this modality.l3 The basic structure and content of many of the laws that register or certify acupuncturists often does not differ substantially from that found in the licensure statutes. Indeed, provider practice acts in several states utilize mixed forms of authorization in
requiring both licensure and registration or in mandating a choice between registration or certification.14 Atypically, a very brief enactment in South Carolina requires "approval" from the state medical board to practice acupuncture and makes no reference to licensure, registration, or certification.15
Medical Supervision. Acupuncture laws in some states require nonphysician practitioners to be supervised by a licensed physician or occasionally by some other provider. The nature and extent of this requirement varies depending on the particular statute and may necessitate a referral from a physician before the commencement of acupuncture treatment, prior evaluation of the patient by a physician, direct employment or supervision of an acupuncturist by a physician or physician acupuncturist, or formal notification to a patient at the time of acupuncture treatment of the importance of consulting a medical doctor concerning the patient's condition.16 In some jurisdictions, the degree of physician oversight is predicated on the nature of patient's condition.]/
Practice Rights of Other Providers. As is true of several other alternative modalities, the right to practice acupuncture may extend to a variety of providers from other health disciplines. This right may be conferred explicitly by the practice act of another modality or through an administrative interpretation which recognizes acupuncture as within the scope of practice for another therapy. The acupuncture practice rights of other health care providers exist both in states where there is no acupuncture practice act and in those jurisdictions that have enacted acupuncture legislation. There is little uniformity, however, in the categories of other practitioners who are eligible to practice acupuncture. Depending on the state, practice rights may extend to medical doctors, osteopaths, chiropractors, physician assistants, naturopaths, homeopaths, podiatrists, nurses, veterinarians, and dentists.18 Training requirements in acupuncture for other practitioners are similarly diverse and apparently formally nonexistent in many
Recent Legislative Developments. The lack of uniformity among state acupuncture laws is well-illustrated by recent legislative developments in this field during 1993-1994. The new law in Iowa, for example, requires acupuncturists to register with the state medical board and to meet examination and training standards established by the board. Before receiving acupuncture treatment, an acupuncture client must have a medical evaluation by and a referral from a medical doctor, osteopath, chiropractor, podiatrist, or dentist. The law holds an acupuncturist to the same standard of care as a licensed medical doctor or osteopath.20
The legislative preference for direct medical control of acupuncture evidenced in the Iowa law is moderated somewhat under the new Texas statute which creates a State Board of Acupuncture Examiners composed of four nonphysician acupuncturists, two physicians experienced in the practice of acupuncture, and three members of the general public. Among other powers, the board may establish educational and training
qualifications for the practice of acupuncture, administer an examination, prescribe forms, establish a procedure for complaints, and recommend rules to administer and enforce the law. The statute, however, expressly disclaims any independent regulatory authority in the board, provides that the powers of this unit are subject to the advice and approval of the state medical board, and vests the medical board with authority to issue acupuncture licenses. The Texas law is similar to the statute in Iowa in mandating evaluation of a patient by a doctor or dentist before acupuncture treatment, but waives this requirement if the patient has been referred by a chiropractor or if the acupuncture treatment is for smoking addiction, weight loss, or, if allowed by administrative rule, substance abuse.21
In contrast to the Iowa and Texas statutes, the new North Carolina law establishes an Acupuncture Licensing Board with independent regulatory authority over the profession. The act mandates licensure for all acupuncturists, except physicians, chiropractors, and students practicing under the direct supervision of a licensed acupuncturist. The six-member board consists of four physician acupuncturists, one physician acupuncturist who must complete 200 hours of category I AMA credit in medical acupuncture training (as recommended by the American Academy of Medical Acupuncture), and one layperson. Among other powers, the board is authorized to exercise disciplinary authority over licensees, to establish requirements for and approve schools of acupuncture in the state, and to formulate practice parameters for acupuncture.``
In 1994 Maryland also established an independent State Acupuncture Board, thereby ending the long-standing regulation of nonphysician acupuncturists in that state by the medical board. The new board consists of five acupuncturists and two consumer members and is charged with issuing licenses and performing other duties incident to the full regulation of acupuncture. The law also repeals a requirement that a patient receive a medical examination before acupuncture treatment and mandates that physician acupuncturists undergo 200 hours of approved training or instruction in acupuncture and continue to register with the state medical board.23
Substance Abuse Legislation. The utility of acupuncture in treating substance abuse is recognized in a number of "drug court" programs throughout the country. A drug court is a specifically designated court within a particular jurisdiction to which are referred cases involving drug use offenders who are eligible for court ordered drug rehabilitation through probation, diversion, or pre-trial supervision.24 Some drug court programs offer a "diversion option" in which drug use offenders who successfully complete drug rehabilitation may have their criminal charges dismissed.25 A recent survey of drug court programs in the United States- indicates that acupuncture is often an integral part of the rehabilitation plan for drug use offenders.26 The Violent Crime Control and Law Enforcement Act of 1994 authorizes $1 billion in federal grant funds over fiscal years 1995-2000 for drug court programs at the state and local level.27
Authorization for the use of acupuncture in treating substance abuse is formally recognized in the statutory law of a number of states.
New York, for example, permits the use of acupuncture to treat alcoholism or substance or chemical dependency in approved hospital or clinical programs. The law allows individuals who do not otherwise meet the requisite state qualifications for the practice of acupuncture to provide acupuncture treatments if they have been trained to administer this modality for the limited purposes sanctioned by the statute. These providers, however, must work under the supervision of a physician or dentist who is certified to practice acupuncture or under a licensed acupunturist.28
In 1993 Connecticut established a two-year pilot program at fifteen selected settings to implement and evaluate the use of auricular acupuncture for detoxifying and rehabilitating substance abusers. The law defines "auricular acupuncture" as treatment by the insertion of needles at a specified combination of points on the surface of the outer ear to facilitate detoxification and rehabilitation. The statute generally restricts the right to provide auricular acupuncture to persons who are certified to perform this service by an organization approved by the state Commissioner of Health Services. Treatment may be administered only in accordance with a written protocol developed by an authorized physician.29
Under Oregon law, treatment programs for drug-dependent persons must involve detoxification with acupuncture and counseling. The applicable statute makes the use of synthetic opiates to treat a drug-dependent person secondary to the use of acupuncture and counseling, unless acupuncture and counseling are ineffective or a physician shows a medical need for synthetic opiates. The law further authorizes the appropriate state agency to enter into contracts with acupuncturists to supply treatment services.30
Acupuncture may also be applied in treating chemical dependency under Minnesota's Challenge Incarceration Program. One of the goals of the program is to treat eligible criminal offenders through a culturally sensitive chemical dependency program. Participating offenders must submit to a chemical use assessment and receive an appropriate level of treatment as indicated by the assessment. To this end, the offender may be required to undergo acupuncture treatment during each of two six-month phases of this program. 1
Virginia authorizes the use of acupuncture as part of its substance abuse treatment program for prisoners in state correctional facilities. Moreover, the statutory duties of probation and parole officers include the appropriate placement of persons on probation or parole in a substance abuse treatment program that may include the use of acupuncture. Virginia law also recognizes acupuncture as an appropriate method of treatment under the state's Community Diversion Incentive Act which provides the court system with a sentencing alternative for nonviolent criminal offenders.32
Federal Developments In 1973 the federal Food and Drug Administration (FDA) deemed acupuncture needles to be "experimental devices" and subject to cautionary labeling requirements and restrictive classification under the Food, Drug, and Cosmetic Act. The FDA's
determination reflected its view that "[u]ntil evidence is obtained demonstrating that acupuncture is a safe and effective medical technique acupuncture devices must be limited to investigational or research use."33 Accordingly, the use of acupuncture needles, stimulator and other accessories had to occur under the direct supervision of a licensed medical or dental practitioner and with the informed consent of the patient, who was viewed as a research subject. If any acupuncture device were shipped in intestate commerce under a claim that the device had diagnostic or therapeutic effectiveness, the FDA would regard the device as misbranded under the law.34
The FDA subsequently modified its position in 1987 to the extent of permitting health professionals who are not physicians or dentists, but who are otherwise legally qualified as health care providers, to conduct acupuncture investigations. Acupuncture devices, however, must still be labeled as investigational and may not be advertised or promoted or contain claims for therapeutic use or specific medical conditions.35
In 1994 multiple citizen petitions were filed with the FDA on behalf of the acupuncture community to reclassify the status of acupuncture needles under the Food, Drug, and Cosmetic Act from experimental devices (Class III) to devices for which performance standards exist to provide reasonable assurance of their safety and effectiveness (Class II).36
Reclassification of acupuncture devices by the FDA as safe and effective would enhance the prospect of coverage for acupuncture treatment under federal Medicare and Medicaid. The federal Health Care Financing Administration (HCFA), which is responsible with administering the Medicare Program, currently denies coverage for acupuncture pending establishment of the scientific efficacy of this modality. With a showing of such efficacy, HCFA may consider acupuncture as a "reasonable and necessary" service for which coverage is authorized under the federal Social Security Act.37
2. Homeopathy
Homeopathy practice acts currently exist in three states--Arizona,
Connecticut, and Nevada (Appendix 3). The Arizona and Nevada statutes
were enacted in 1980 and 1983 respectively, while the Connecticut
act dates from In states that do not have homeopathy practice
acts, practice rights for this modality may be recognized within
the scope of practice for other health care professions.39
Scope of Practice. In Arizona, homeopathy is legislatively defined as a "system of medicine employing substances of animal, vegetable or mineral origin which are given in microdosage and prepared according to homeopathic pharmacology, in accordance with the principle that a substance which produces symptoms in a healthy person can cure those symptoms in an ill person."40 The statute permits homeopaths to employ as adjunctive therapies acupuncture, neuromuscular integration, orthomolecular therapy, nutrition, chelation therapy, pharmaceutical medicine, and minor surgery.41.
The Nevada homeopathy practice act similarly defines homeopathy by reference to the administration in microdosages of animal, vegetable, or mineral origin, but also notes the application of nosodes and sarcodes which may be given in macrodosage. The statute indicates that homeopathic substances are prepared according to homeopathic pharmacology involving methods of Hahnemannian dilution and succession, magnetically energized geometric patterns, applicable in potencies above 30X as defined in the official Homeopathic Pharmacopoeia of the United States, or Korsakoffian. The Act further recognizes the homeopathic principle that a substance which produces symptoms in a healthy person can eliminate those symptoms in an ill person, thereby resulting in the elimination and prevention of illness through utilization of classical methodology and noninvasive electrodiagnosis.42
The Connecticut statute does not define homeopathy or specify adjunctive therapies. Applicable administrative guidelines provide, however, that the required licensing examination is based primarily upon the principles of classical homeopathy.43
Administrative Structure. Both Arizona and Nevada have independent homeopathy boards.44 In Connecticut, the state Homeopathic Medical Examining Board functions principally as an advisory unit to the state Department of Public Health and Addiction Services, but has independent authority to hear and decide matters concerning suspension or revocation of licenses, to adjudicate complaints against practitioners, and to impose related sanctons.45
All three states utilize licensure to authorize the practice of homeopathy. The laws in Arizona and Nevada specify the powers and duties of the independent homeopathy boards, qualifications for licensure, disciplinary grounds against licensees, and prohibitions and penalties for violations of the law.46 By contrast, the Connecticut licensure scheme is not contained in a discreet practice act for homeopathy alone, but consists of only a few references largely intermingled with the statutory provisions concerning the practice of medicine and the general regulatory authority of the Department of Public Health and Addiction services over other health professions.
Practice Rights of Other Providers. The homeopathy practice act in Arizona indirectly acknowledges the right of physicians and osteopaths in that state to practice homeopathy by providing an arbitration procedure if the separate boards for these three professions disagree concerning which board has jurisdiction over a complaint against a dual licensee.48 Although formal homeopathy practice acts exist in only three jurisdictions, the right to utilize homeopathy is granted in other states as part of the scope of practice for such alternative modalities as naturopathy, oriental medicine, and chiropractic.[49] Moreover, physicians would seem able to administer homeopathic preparations in jurisdictions that either tolerate or formally authorize the use of unspecified alternative therapies under a state medical practice act.[50] Indeed, a recent North Carolina law permitting physicians
to use alternative modalities was enacted in the wake of disciplinary action by the state medical board against a medical doctor who employed homeopathic remedies without any harm to his patients.[51]
Federal Developments. The federal Food, Drug, and Cosmetic Act deems articles listed in the Homeopathic Pharmacopoeia of the United States (HPUS) as "drugs" and recognizes HPUS as the official compendium of standards for source, composition, and preparation of homeopathic products.[52] Policy guidelines published by the FDA in 1988 note the transition of the homeopathic drug market in the United States from a historically limited position to a multimillion dollar industry and indicate that homeopathic products offered for the treatment of serious diseases must be dispensed under the care of a licensed practitioner. For self-limiting conditions that are recognizable by consumers, homeopathic preparations may be marketed over-the-counter.[53]
Homeopathic drugs must meet standards specified in HPUS for strength, quality, and purity[54] and comply with labeling, packaging, and manufacturing requirements specified in the federal act and applicable regulations.[55] In recognition of the unique, highly diluted nature of homeopathic drug preparations, the FDA exempts these products from rules concerning expiration dating,[56] as well as requirements for laboratory testing to determine the identity and strength of each active ingredient before distribution of the product.[57]'
A recent petition submitted to the FDA asks the agency to hold
homeopathic remedies to the same standards of safety and efficacy
that apply to over-the-counter drugs. The petition declares that
claims on behalf of homeopathic preparations are unsubstantiated
and urges the FDA to issue a public warning that, although the
agency has allowed the sale of homeopathic products, it does not
recognize them as effective.[58]
3. Massage
Provider practice acts recognizing massage as a credentialed profession
presently exist in twenty jurisdictions (Appendix 4). In recent
years there has been substantial legislative activity concerning
massage with nearly one-third of these states enacting practice
acts after 1991. Massage is also often regulated by political
subdivisions within a state, even in jurisdictions that have adopted
practice acts at the state level.3Y
Scope of Practice. Although the legislative definition of massage is not uniform among the states, most statutes refer to this modality as the manipulation or treatment of the soft or superficial tissues or muscles of the body by manual or mechanical means.[60] A few enactments specify that, in addition to using the hands, a massage provider may employ the feet, arms, and elbows.[61] Collectively, over half of the practice acts authorize such core massage techniques as friction, stroking (effleurage), percussion (tapotement), kneading (petrissage), and vibration.[62] The Delaware statute,
which applies to both massage and other forms of bodywork, defines "massage/bodywork" broadly to mean systems of activity applied to the superficial or deep tissue, or muscle or connective tissue, by application of pressure with the hands, feet, arms, or elbows in nonpathological conditions.[63]
The laws are diverse in specifying methods adjunctive to massage, but the following composite list is illustrative of the range of procedures currently permitted under the various practice acts:
Substantial legislative diversity also exists concerning the nature of the health conditions for which a provider may administer massage. Some laws permit the use of this modality broadly for enhancing or maintaining good health or good physical or mental condition, for instilling a greater sense of well-being, or for "any purpose."[64] Similarly broad are authorizations to employ massage for unspecified "therapeutic purposes." [65] In some jurisdictions, practice acts allow massage to be applied for specific conditions, such as increasing range of motion, improving circulation, relaxing the muscles, improving muscle tone, reducing or contouring of the body, reducing stress, or relieving pain.[66] In Ohio, administrative regulations of the state medical board provide that if a patient has been referred in writing by a licensed physician, chiropractor, or dentist, massage may be applied to treat temporomandibular joint dysfunction.[67]
Administrative Structure. Among those jurisdictions that recognize massage as a credentialed profession, eight states have established massage boards with independent or substantially independent regulatory authority.[68] In eleven states the profession is regulated at the departmental level, or by a departmental division, usually with the assistance of a massage board or advisory unit.[69] Exceptionally, Ohio treats massage as a limited branch of medicine under the jurisdiction of the state medical board.[70].
The administrative structure for the regulation of massage in Delaware is unique. In what may become a model concept for the joint regulation of massage and other alternative modalities involving bodywork, Delaware in 1992 established a seven member Committee on Massage/Bodywork Practitioners composed of four professional members and three representatives from the general public. No more than one of the professional members of the Committee may be from the same national organization or school in the massage/bodywork field. Among other functions, the Committee is authorized to compile a list of schools and certified teachers to be used as reference sources in the voluntary certification process the law establishes for massage/bodywork practitioners. The eclectic focus of the statute is evident in the Committee's authority to recognize schools and teachers of any method of massage/bodywork, including Alexander technique, therapeutic technique, Feldenkrais, Hellerwork, Oriental bodywork, Rolfing, Trager, bioenergetics, and shiatsu.[71]
Licensure is the most common form of authorization for massage practice rights and is conferred in fifteen states. Three jurisdictions require registration[73] and one state issues certifications for the profession. Maine has a bifurcated system in which "massage practitioners" receive registrations and more formally qualified "massage therapists" receive certificates.[75] The language of the massage practice acts in the three jurisdictions that mandate registration parallels the textual requirements of licensure laws in other states and typically specifies educational and examination standards for massage providers, disciplinary grounds, prohibitions, penalties, and the like.[76] By contrast, the certification scheme under the Delaware statute is voluntary, although the law does prohibit an uncertified individual from claiming to be certified by the state. [77] Further, once certified on the basis of prescribed educational and examination qualifications, a provider under the Delaware statute is subject to the disciplinary authority of the state Committee on Massage/Bodywork Practitioners.[78]
Practice Rights of Other Providers. Owing to the breadth of existing statutory definitions of massage and the real or apparent similarity between certain techniques of massage and other forms of bodywork, the scope of practice for this modality may affect the right of other alternative providers to practice their own distinctive modalities. The massage practice acts are not uniform in addressing this issue and, depending on the state, current laws may explicitly subject practitioners of reflexology, shiatsu, acupressure, polarity, touch therapy, and unspecified forms of "body therapy" or "bodywork" to requirements applicable to massage.[79] As previously indicated, such bodywork modalities as Alexander technique, Feldenkrais, Hellerwork, Oriental bodywork, Rolfing, Trager, bioenergetics, and shiatsu are eligible for certification under Delaware's Massage/Bodywork Practitioners Act.[80]
In other jurisdictions, however, massage practice acts deliberately exclude certain alternative providers. Maine, for example, does not apply its massage law to practitioners of Rolfing, Trager, reflexology, shiatsu, reiki, and polarity, if these providers do not use the title "massage therapist or "massage practitioner."[81] New Mexico exempts sobadores and Native American healers from the requirements of the state massage practice act as long as these practitioners use traditional Hispanic or Native American healing practices.[82]
Although some massage acts authorize osteopaths and chiropractors to practice massage,[83] most enactments are not explicit concerning the massage practice rights of these providers and either exclude osteopathy and chiropractic from the requirements applicable to massage[84] or declare that massage does not include any service or procedure provided by an osteopath or chiropractor.
The legal right to administer a massage treatment is also expressly granted by affirmative authorizations in scope of practice laws for other health occupations. For example, in certain jurisdictions massage may be lawfully practiced by naturopaths[86], acupuncturists[87],
chiropractors,[88] podiatrists,[89] and particularly by physical therapists.[90] Scope of practice conflicts involving the respective practice rights of physical therapy and massage providers form the basis of at least one pending lawsuit which challenges the authority of a state physical therapy board to reserve the right to practice "therapeutic massage" for physical therapists only, thus relegating massage providers to the administration of nontherapeutic massage for the limited purposes of stress reduction or relaxation.[91]
Local Regulation. Unlike other alternative modalities, massage is often regulated directly at the local level within a state by counties or municipalities. Even in jurisdictions that have state massage practice acts, legislative deference to local regulation is generally present, although the degree and specific type of deference varies under the practice acts that address this issue. The accommodation of local interests seems most pronounced in Maine, which authorizes local jurisdictions to adopt even more restrictive massage standards than those required at the state level, and in New Hampshire, which sanctions local prohibition of massage altogether.[92] Substantial deference to local law is also evident in the Washington practice act which expressly declares that the state enactment is not exclusive for purposes of regulating massage and that local jurisdictions may require additional registrations or licenses for massage and charge any fee for this or a similar purpose.[93]
In the remaining states which address the issue of local regulation
of massage, the degree of deference is less pronounced than in
the preceding jurisdictions. Utah, for example, permits local
regulation of "massage establishments" and unlicensed
individuals, but ensures that only the state can regulate massage
therapists.[94] Florida and New Mexico allow local regulation, but
only to the extent of consistency with the state practice act.[95]
Louisiana and Texas generally preempt the regulation of massage
by political subdivisions in those states, but recognize exceptions
for purposes of zoning, imposition of occupational licensing taxes,
or regulations that do not relate directly to the practice of
massage therapy.[96] The Texas statute also generally prohibits
local requirements that are more restrictive than standards applicable
to other health care providers or establishments.[97] The principle
of provider parity evident in the Texas act is also present in
Iowa's prohibition against the enactment or enforcement of local
requirements concerning massage therapists that "are not
equally enacted or enforced regarding all health care professions,
including but not limited to zoning, building code, health, and
sanitation regulations."[98]
4. Naturopathy
Naturopathy practice acts currently exist in nine jurisdictions
(Appendix 5).[99] Recent legislative activity in this field is evidenced
by the adoption of new enactments in Montana in 1991 and in New
Hampshire in 1994.[100] In states that do not have naturopathy practice
acts, the use of this modality may constitute the practice of
medicine for which a medical
license is required or may require licensure in another health profession with a scope of practice that permits the use of naturopathic methods. methods.[101]
Scope of Practice. A common characteristic of the legislative definitions of naturopathy is an emphasis on the use of "natural" forms of health care treatment. Accordingly, references may be found in the practice acts to treatments by "natural means," "natural methods," "naturally occurring substances," "natural medicine," "natural therapeutics or procedures," or "nature's remedies."[102] Several enactments also define this modality in terms of an understanding regarding a natural human capacity for self-healing. The recently adopted law in New Hampshire is perhaps the most explicit affirmation of this understanding in defining naturopathic medicine as "a system of primary health care practice by doctors of naturopathic medicine for the prevention, diagnosis, and treatment of human health conditions, injuries, and diseases that uses education, natural medicines and therapies to suppers and stimulate the individual's intrinsic selfhealing processes. "[103]
In some jurisdictions, the scope of practice for naturopathy includes such well-known alternative modalities as acupuncture, biofeedback, homeopathy, hypnotherapy or massage.[104] A few statutes permit naturopaths to perform minor surgery[105] and naturopathic or natural childbirth.[106] In general, the practice acts allow naturopaths to utilize an extensive array of adjunctive therapies and procedures, a fact well-illustrated by the following itemization in the New Hampshire law:
With the exception of the very brief registration law in the District of Columbia, the various practice acts specify licensure as the required form of practice authorization.[111] In several states, naturopathy licensees must also have a special certificate to practice natural childbirth or acupuncture or to dispense a natural substance or device.[112] The basic statutory scheme in the naturopathy practice acts parallels that found in the licensing laws for other alternative providers in defining the scope of practice for the modality and in specifying the qualifications for practice, disciplinary grounds, prohibitions, penalties, and related matters.
Practice Rights of Other Providers. Unlike the alternative modalities of acupuncture, homeopathy, and massage, which may be explicitly authorized as adjunctive therapies in the practice act of another health care discipline,[113] the right to practice "naturopathy. as such does not appear to be positively conferred in the practice acts of other providers. On the other hand, the multiplicity of therapies and techniques that typically comprise the legislative definition of naturopathy may often fall within the scope of practice for other professions. The Montana naturopathic practice act expressly acknowledges this fact:
This [naturopathy practice act] recognizes that many of the therapies used by naturopathic physicians, such as the use of nutritional supplements, herbs, foods, homeopathic preparations, and such physical forces as heat, cold, water, touch, and light, are not the exclusive privilege of naturopathic physicians, and their use, practice, prescription, or administration by persons not licensed to practice naturopathic medicine is not prohibited by this [practice act].[114]
Accordingly, naturopathy practice acts in Montana and in several other jurisdictions broadly provide that these enactments are not applicable to persons authorized to practice other health professions under state law.[115] The effect of these general exclusions is indirectly to authorize
the excluded providers to use specific therapies and techniques common to naturopathy, if these procedures are also within the scope of practice for the health professions of the excluded practitioners. In other states, however, naturopathy practice acts limit the categories of providers who may indirectly benefit in this way by excluding specific practitioners only, such as physicians, osteopaths, chiropractors, Christian Scientists, or providers of Oriental] medicine, Oriental herbology, or of other dietary or nutritional advice.[116]
Implicit authorizations for other providers to practice naturopathic therapies may also arise under a statute that prohibits the practice of naturopathy as a distinct profession within a given state. Tennessee law, for example, provides that the practice of naturopathy is a class B misdemeanor, but renders this prohibition inapplicable to "persons who comply with the regulatory laws of the state with respect to the practice of the various healing arts."[117] Without a similar textual qualification, however, a South Carolina statute prohibits the practice of naturopathy and subjects offenders to a criminal fine of not more than one year, or both fine and imprisonment in the discretion of the court.[118]