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Foundational
Principles and Recommendations
Safe Harbor Exemption Laws
Complementary and Alternative Health
Regulation
Introduction:
Individual healthseekers value and utilize many healing modalities
and practices that are not inherently harmful and that generally do not
pose an imminent risk of significant harm to the public, such as: ayurvedic
practices; homeopathy; raditional naturopathy; herbalism; traditional cultural or ethnic pracices; aromatheraphy; and
variety of types of bodywork. There
are thousands of these types of healing practices and the persons
practicing them are often not licensed, certified, or registered by the government
because this type of work alone does not rise to the level of regulatory
police power required for a legislature to license a profession. However,
because of the broad definitions within professional practice acts, some of
these behaviors could be considered in technical violation of a practice
act.
For example, in Maryland, the definition of practice of medicine is very
broad and does not include exemptions from criminal charges of unlicensed
practice for most practitioners that are not licensed.
Health freedom bill are a
common sense solution to solve this problem. The basic architecture of a health
freedom of access bill, (which is also called a safe harbor exemption
bill), is that it provides a well spelled out exemption for those
practitioners practicing healing arts who avoid a specific list of prohibit
conduct such as doing surgery or giving out prescription drug, and who do
not pose a significant risk of harm and to their clients, and who give out
client disclosures letting the clients know that they are not licensed by
the state of Maryland and that they are practicing within the safe harbor
requirements.
The basic foundation
principles that health freedom bills are founded upon are listed below for
your information.
Basic Foundational Premises for Safe Harbor
Exemption statutes:
I.
Every
individual has the basic right of self-determination and the right to make
their own personal choices in the process of healing. Each individual person is ultimately
responsible for securing their own health and well being and making decisions
to that end.
II.
The role
of the government in healthcare is to protect citizens from harm and at the
same time to protect citizen rights to individual choice and autonomy.
III.
The basic
right of self-determination dictates that regulations are not to be imposed
that impact consumer individual rights unless they are clearly required for
the safety and well being of citizens.
If regulations are imposed, the following criteria should be
used: 1) necessity to protect the safety
and well being of citizens, and 2) use of the least restrictive means of
regulation possible.
IV.
The
least-restrictive means of regulation, balancing the role of the government
to protect individuals from harm with the role of the government to protect
individual autonomy and choice, should be founded on principles of a
consumer informed environment and clear avenues of consumer recourse for
complaints.
V. In order to have the right of
self-determination, in the fullest sense of the word, every person has a
constitutional right of access to any healing or health care practitioner,
treatment, or information source they desire. This right remains, whether or not
treatment options are generally accepted, well known, recognized, or
researched, and regardless of a practitioner’s education, training, and
experience.
VI. There is a broad range of types of
health care practitioners and healing modalities and treatments available,
be they conventional or non-conventional, holistic, integrative, natural,
or culturally specific, and many of these have provided people with profound
healing effects. The individual has
the ultimate responsibility for assessing whether a particular treatment or
practitioner has been or is likely to be beneficial to them in their
healing process.
VII. Studies
indicate that consumers are placing increased reliance on non-conventional
healthcare providers and healing modalities to avoid the excessive cost of
conventional medical services and to obtain more holistic consideration of
their needs.
VIII. Consumers
benefit from, and deserve to have, truthful information in order to make
informed choices regarding their healthcare. A consumer benefits when a practitioner
is required, before treatment begins, to give disclosure to the consumer
regarding the method of healthcare they provide and their training and
experience in the health care they practice.
IX.
Consumers
benefit from having accessible places to direct their complaints and
deserve to be supported in their expectation of receiving ethical treatment
and truthful information. If a
person has been harmed or put in the position of imminent risk of direct
harm by a modality or a practitioner relationship, the government should
have in place a mechanism for consumer complaint and clear grounds for
disciplinary actions to correct the situation.
Re: State Occupational Regulation
A.
The use of
state licensure, registration, and certification to regulate health care
occupations is not the least restrictive means of regulation and can
sometimes negatively impact consumer options when used as the sole means of
regulation. In fact, licensure is
the most restrictive type of regulation, utilizing the broadest sweep of
police power possible for occupations.
Licensure laws typically describe an area of practice, demand
particular types of education and training and use of exclusive titles for
that practice, demand that the practitioner stay within the prevailing
standard of care of the education and training mandated by the government
for that practice, and then exclude all other persons from practicing in
that area of healing. The main
draw-back of mandatory licensure, registration, or certification for
healing arts is that it requires a presumption that all of the healing arts
are dangerous and needing to be regulated by the government and requiring
permission from the government before a person does any healing act. This is a false presumption. There are many healing arts that do not
pose a risk of harm and that are extremely desirable and helpful to health
seekers. These healing arts should
be left in the public domain as a natural right as opposed to a privilege
given out by the government. The
burden of proof of harm should always remain on the government before
restricting these types of inherently and generally regarded as safe acts.
A.
Consumers are
disempowered by states that only use the most restrictive means of
regulation and do not provide an additional form of safe harbor exemption
regulation that protects consumer options.
Health-care regulations that limit available healing practitioners
and treatments through enforcement of exclusive and restrictive
occupational laws, decrease consumer options in health care and infringe on
the individual’s basic right of self-determination to make choices.
B.
Consumers are
empowered by states that use safe harbor exemption laws which act as
additional least-restrictive means regulations that ensure all
practitioners the right to practice and the right to use the full range of
treatment methods. These states
maximize consumer choice and protect the right of self-determination of the
individual to make informed decisions about their health and acknowledge
and respect consumer needs for meaningful information and reasonable
practitioner/client relationship expectations.
C.
There are
recognized problems that occur when a state attempts to use exclusive and
restrictive occupational regulation for non-conventional, holistic,
integrative, natural or culturally specific types of healing practices:
1.
Multimodality
practices: The natural healing arts
world has many practitioners that learn their trades and professions from a
broad variety of cultures and disciplines. As their knowledge and skill set
increases about holistic health they use these skills in a variety of ways
depending on their client needs. The
intermingling of skills is the strength of the holistic approach to healing
and must be preserved.
2. Education:
Government-mandated educational standards for the multidisciplinary
and the broad domain of healing arts can be inaccurate, misleading, and
unrealistic and can decrease consumer access to practitioners that do not
abide by governments’ mandates.
Attempts by the government to quantify effective preparation needed
for a particular healing art may be inaccurate, too narrow, and may
restrict the pool of practitioners and may serve to eliminate some of the
most effective healers. Government
mandates may miss some of the more intuitive or spiritual dimensions of
healing skills, which may not be easily defined or tested. Attempts to
regulate may involve setting arbitrary numbers of classroom hours at
selected types of educational institutions with the receipt of conventional
types of degrees, but many forms of natural healing cannot be confined to
traditional learning environments or classroom or textbook training. Practitioner effectiveness may depend on
inherent giftedness in the healing art.
Skills may be acquired by mentoring with an individual, self-study,
or other unconventional methods.
a. Governments should allow practitioners to practice regardless of
their education and training as long as they avoid prohibited conduct and
practice within reasonable conduct guidelines and provide consumers with an
informed environment. This will
ensure maximum consumer options.
3. Innovation: Regulation
that restricts health care practice to one group and to one standard of
care can decrease incentive for innovation.
The healthcare field needs healthy competition in the market place
and needs the freedom to expand and develop as understanding of healing
grows.
a. No restrictions should be put in place regarding
dissemination of new ideas and information if the government has not shown
that it poses an imminent risk of harm and there is an informed consumer
environment.
4. Preservation
of Knowledge: Health care regulation must always
safeguard against the elimination of age-old wisdom and knowledge of
healing. Preservation of wisdom is
accomplished only in a free and uncensored society.
5. Cooperation
among Practitioners: Health care regulation that promotes turf
battles instead of an interdisciplinary environment decreases the potential
for cooperation and exchange of information among practitioners. Practitioners practice in fear of being
charged with the practice of medicine without a license or in fear of
losing their existing license for practicing outside of a defined scope or
outside of prevailing standards. The
least restrictive means of communication should be used to promote
acknowledgment and acceptance among practitioners and promote professional
coordination, cooperation and free flow of information.
6. Consumer
Decision-making: Occupational regulations that limit
consumer options take away important rights and motivations of consumers to
decide their own healing path.
Consumer decision-making should be encouraged and regulation should
support the fact that consumers that participate in their own health care
decisions thrive more and have better health outcomes.
In Summary:
Ø State governments need to be vigilant during
health care reform to preserve the balance between government regulation
and an individual’s right of self-determination and right of choice.
Ø Existing regulatory health care statutes should be
reviewed and revised to acknowledge and promote the use of the broad domain
of healing arts and trades in a nonexclusive manner by all consumers and by
all professions both licensed and unlicensed, thus creating the widest
range of choices for consumers.
Ø A regulatory framework such as the safe harbor
exemption bills should be utilized that embodies the least restrictive
means of regulation, and that provides an informed consumer environment and
a system for consumer recourse in the event of a complaint.
Ø For state laws regarding health care practitioners
that are not licensed, certified, or
registered by a state government, and that provide exemption parameters for
practice please review MN Stat. 46A,
Minnesota Complementary and Alternative Health Care Freedom of
Access Act of 2000, CA Stat Chapter 820, Sections 2053.5 and 2053.6 to the
Business and Professions Code, relating to health California Health Care
Freedom of Access Act, and RI Stat 23-74-1, Rhode Island Unlicensed
Practitioner Act, for conceptual planning, or contact National Health
Freedom Action for national Model language.
Ø Government should look to the future and create
laws that allow for the greatest amount of innovations and that ensure
freedom of consumer access to all health care options.
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