Including herbs in the scope of practice for New York State LAc's

January 25, 2007

For thoses of you who may not know, there's a movement in New York

State to include herbs in the scope of practice for licensed

acupuncturists who meet the necessary educational requirements. We're

trying to get as many practioners as possible to a town hall meeting

on Sunday, February 11 to discuss this.

I'm including the information on the meeting as well as a FAQ sheet on

the initiative. Please pass this along to any New York State

practioners (or interested folks from other states) you may know.

Also, if anyone is planning on coming from far away and would need

housing, please contact me. I'll do my best to help find accommodations.

Best wishes,

Sarah

Sarah E. Rivkin, MS, LAc, Dipl. OM

www.slopeacupuncture.com

NEW YORK STATE COALITION FOR ACUPUNCTURE LEGISLATIVE INITIATIVE

Please Join Us on Sunday, February 11th For A Very Important Town Hall

Discussion On This Legislative Initiative.

TOWN HALL MEETING

SUNDAY, FEBRUARY 11TH, 2007

Touro College, School of Health Sciences, 27 West 23rd Street, 6th

floor, New York, NY 10010

3:00-5:00 PM

FREQUENTLY ASKED QUESTIONS

ANSWERS BY MICHAEL TAROMINA, ESQ. & MARILEE MURPHY, L.Ac., R.N.

Members of the Coalition Steering Committee

1. WHO IS THE COALITION?

The coalition is not new. Traditionally, it has come together

reactively to defend the profession against adverse legislation

(example: the podiatric, chiropractic bid for 300 hour certification

and comment on recently proposed naturopath licensure). The coalition

is comprised of practitioners, alumni associations, acupuncture

schools, professional associations and students This recent assembling

of the coalition is unique in that, for the first time, it will be

proactively seeking to amend legislation in favor of the long-term

interest and protection of the practice.

As of today, three New York acupuncture schools (Touro, New York

Chiropractic College, Swedish Institute) High Falls Gardens, are all

in full support of the coalition's efforts. Other organizations are

involved in the conversation and are expected to participate.

2. WHY IS THERE A NEED FOR LEGISLATIVE ACTION NOW ON THE ISSUE OF

HERBAL PRACTICE?

Legally, acupuncturists can practice herbs in New York solely by

virtue of the fact that it is not presently regulated by New York

State; therefore anyone can do it. (Note: Education and/or experience

do not legally permit acupuncturists to practice herbs under New York

law.)

Several recent indicators, however, strongly suggest that

acupuncturists' are increasingly in jeopardy of losing the tenuous

legal standing to practice herbs:

& #8721; Highly-trained acupuncturists/herbalists in New York have been told

by state regulators

that if they did not stop advertising and practicing herbs under their

acupuncture practice, a professional misconduct complaint

would be initiated against them.

The basis for these threatened misconduct complaints is because New

York State Division of Corporations currently requires acupuncturists

choose only " professional " corporations, i.e. PCs or PLLCs

(non-professional c-corporations, partnerships or limited liability

companies are not permissible acupuncture entities). This corporate

entity regulation thereby prohibits an acupuncturist from practicing

herbs through their business since a " professional " corporate entity

can only offer PROFESSIONAL LICENSED services. Herbs are not a

licensed service or profession, thus they are prohibited under a

professional corporate entity.

& #8721; Other professions are working aggressively in New York to gain herbs

in their scope of practice.

The naturopaths recently failed to pass a bill that would have

introduced a naturopath license in New York. This proposed bill sought

to include the practice of herbs under the naturopath scope of

practice. As soon as another profession, such as naturopathy, gains or

defines herbal practice in its scope, the acupuncture profession in

New York will be at a distinct disadvantage in the marketplace.

Although this won't necessarily preclude acupuncturists or others from

herbal practice it will certainly cede the professional standards,

marketability and protection of herbal practice without restriction to

naturopaths, not acupuncturists. Thereafter, any responsive action by

the acupuncture community will be from a defensive or weaker position.

& #8721; Increasing FDA interest in herbal regulation also poses potential

threats to the future herbal practice by acupuncturists.

Absent statutory protection in New York State, unregulated herbal

practice remains at high risk to be regulated, restricted or

prohibited in a manner not favorable to acupuncturists.

In summary:

a) Lack of regulation is the present legal status of herbs in NY

(Note: This is the weakest form of " legal protection " );

b) NY prohibits the practice of herbs under " acupuncture " corporate

entities

c) Other highly-marketable, professional competitors are seeking

herbal scope and

regulation in NY.

This combination of factors, the coalition believes, demands an

immediate, proactive, legislative initiative to secure the present and

future of the profession by asserting the affirmative legal right in

NY to practice herbs under the acupuncture statute.

3. WHAT IS THE LIKELIHOOD FOR SUCCESS?

Despite the enormous hurdles to enact legislation in New York State

the coalition believes that success is possible provided:

& #8721; THE FINAL DRAFT OF THE BILL IS WRITTEN TO MAXIMIZE ITS LEGITIMACY

AND LIKELIHOOD FOR SUCCESSFUL POLITICAL PASSAGE. The most important

(and difficult) reality for any profession seeking legislative change

to grasp is the political reality. Proposed legislation will be

quickly dismissed and defeated as an attempt to self-serve the

profession unless it is presented to legislators containing the

highest of standards and assumption of responsibilities. More

specifically, to be credible in an attempt to ask politicians for

further legal protection it is the profession's responsibility (and

political reality) to present language that first and foremost

protects the public, not the practitioner's economic interest. It

cannot be stressed enough that we will ask for securer legal

protection from politicians not necessarily inclined or friendly to

our cause and potentially strongly counter-influenced by opponents;

accordingly, we must present a proposal that offers the highest

standards of public protection in exchange for their support.

LIKEWISE, IT IS CRITICAL TO MINIMIZE THE LEGITIMACY OF ARGUMENTS MADE

BY POTENTIAL OPPONENTS LOBBYING AGAINST THE PROPOSED BILL. Written and

overwhelmingly supported by the acupuncture profession to establish

and maintain the highest of standards in order to protect and better

serve the public, the proposed bill will be effectively immune to

legitimate arguments against passage that may be made by other

professions and opponents—some of whom will be well-funded and skilled

in their defensive lobbying efforts. Once again it must be stressed,

the profession cannot legislatively obtain " ideal " terms of practice;

therefore the Coalition intends to seek changes that are both needed

and politically-feasible at this time in this State.

& #8721; THE ACUPUNCTURE COMMUNITY AT-LARGE IS ABLE TO COME TOGETHER AND

PARTICIPATE IN THE CAUSE BY DEDICATING THE NECESSARY EFFORT AND

RESOURCES. This Coalition cause cannot succeed without the

overwhelming support and commitment of the majority acupuncture

community.

4. IF I DON'T PRACTICE HERBS, HOW WILL I BE AFFECTED?

As proposed, not at all. Only future acupuncturists who want to

practice herbs will be affected.

5. WHAT HERBAL STANDARDS WILL BE PROPOSED?

This is currently being researched by the Coalition in a comprehensive

state by state canvassing project. However, it must again be stressed,

that the final outcome of standards must be based upon what can be

achieved politically in a very difficult state to navigate.

To that end, the current educational standards in the United States

are established by Accreditation Commission for Acupuncture and

Oriental Medicine (ACAOM). Additionally, National Certification

Commission for Acupuncture and Oriental Medicine (NCCAOM) has

established a testing and herbal certification standard. Failure to

link proposed New York standards, at minimum, in accordance with the

aforementioned standards will undermine the credibility of the

legislative purpose—to afford legal protection in exchange for the

profession adopting and maintaining the strictest of professional

standards.

6. IF I HAVEN'T STUDIED HERBS BUT I CURRENTLY PRACTICE HERBS, WILL I

STILL BE ABLE TO DO SO?

The Coalition is proposing a grandfathering clause be included in the

new bill so that current practitioners will be able to continue to

practice herbs. The bill would set a future date after which all new

acupuncture licensees would need to meet the newly-established

standards to be able to practice herbs.

7. WHY CAN'T THERE BE A TWO-TIERED SYSTEM SO THAT PRACTITIONERS CAN

PRACTICE PATENT HERBS WITH LESS TRAINING?

Currently, ACAOM standards do not allow acupuncture and Oriental

medicine schools to " partially train " students in herbs therefore a

two-tiered system would be contrary to current national accredited

educational standards. Suggesting that our practitioners can " self

train " for patent herbs is not a credible or politically-feasible

approach for protecting public safety as there is no clear line that

can easily be drawn for such a practice. Simply stated, asking for two

standards in NY without credible, adopted precedence (or a clear

enforceable line) will be quickly rejected by legislators— who are

largely not well-instructed on the issues or inclined to favor any new

acupuncture amendment.

8. IF A PROFESSIONAL DOCTORATE IS COMING IN THE FUTURE, WOULDN'T IT BE

BETTER TO WAIT TO MAKE LEGISLATIVE CHANGES?

There are indications that the national discussion and standards for

the professional doctorate are NOT far enough along to warrant

postponing this agenda for many reasons. First, if ACAOM approves a

professional doctorate program, the Council of Colleges of Acupuncture

and Oriental Medicine (CCAOM) has clearly stated its support for the

master's degree to remain the entry-level degree for many more years

(possibly 8 years more). There will be a transition time as some

schools offer the masters program while others transition to the

doctorate. There is a question as to whether a legislative change will

be required once the professional doctorate is offered since degrees

are not a legislative issue and schools can (and do) offer programs

that exceed the licensure requirements.

Secondly, there is a concern about New York State Department of

Education's perception about approving professional doctorates

programs that lead to a licensure that still does not include herbs

within its scope. Having herbs in the scope of practice before the

onset of professional doctorate may only potentially support the

option of offering a DAOM as well as a D.Ac. in the future.

9. WHY IS CONTINUING EDUCATION INCLUDED AS PART OF THE INITIATIVE?

Continuing education is a necessary component of professional

standards, particularly in medicine where standards are always

advancing. (Western medicine has long required continuing education.)

Accordingly, any profession seeking to raise and/or maintain high

standards of practice must commit itself to continuing education.

Continuing education requirements will not only legitimize the

proposed bill, it will also enhance the educational credibility,

parity and status (thus employment opportunities) of New York

practitioners in the eyes of hospital credentialing committees, other

medical providers, and the public. (Note: Continuing Ed is already

required for practitioners maintaining NCCAOM certification.)

10. WHY IS THERE A NEED TO INCREASE ACUPUNCTURE REPRESENTATIVES ON THE

STATE BOARD?

The goal to increase the acupuncture representation on the board is an

outcome of data showing that this increase would bring the acupuncture

board in line regarding representation consistent with other

professional boards. While the current board may be functioning

adequately, it is dependent upon the present group of personalities

working well together and the future of acupuncture in New York State

is better protected by increasing the number of Licensed

Acupuncturists and stabilizing acupuncture representation on the board.

11. IS THIS INITIATIVE THE FINAL EFFORT FOR THE COALITION?

Hopefully this initiative is the beginning of a larger proactive

effort on behalf of the profession in New York. Important

non-statutory issues will require on-going effort and organization.

COALITION'S PROPOSED LEGISLATIVE GOALS

1. Include herbal practice in scope of practice for acupuncturists

such that it is acknowledged and protected in the scope of practice.

& #8721; For those wanting to practice and recommend herbs, documentation of

training would be required.

& #8721; A grandfathering clause will be included so that the impact of the

new scope would take effect on a designated date for all future licensees.

& #8721; Only LICENSED ACUPUNCTURISTS who are practicing herbs will be

affected. The new law would not impact those individuals who practice

herbs without an acupuncture license.

2. Require New York State Mandated Continuing Education Units for

license renewal – equivalent to 12 hours per year.

3. Increase the number of members to State Acupuncture Board, to

specifically include a higher number of licensed acupuncturists. Data

supports that this would bring the acupuncture board in line with

other professional boards.

4. Allow for visiting faculty to perform acupuncture inside of an

educational context. This will mirror the provision in the Certified

Acupuncturist (Certified Acupuncturist -MD, DDS, Osteopath) practice act.

January 26, 2007

good luck to you. i hope that the coalition is successful in its efforts. a

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