On the Sunset of the New Mexico Practice Act and Safeguarding the Profession into the Future by Dr. Robert J. Bibeau, DOM

Written for Healthcare Systems, Dr. Thomas Miles, DACM, 06/29/2021
by Dr. Robert J. Bibeau, DOM, DACM Graduate Student

Abstract

There is great cause for excitement in the acupuncture profession as many practitioners feel the medicine is moving forward and integrating with the medical establishment in the United States at an accelerating rate. Recent advancements such as provision 2706 of the Patient Protection and Affordable Care Act (PPACA), the so-called “non-discrimination in health care” clause (PPACA, 2010), and the US HR 1183 Acupuncture for Heroes and Seniors Act of 2019 (US HR 1183, 2019) often referred to as the “Judy Chu Bill” are some examples of the cause for such excitement. On the other hand, the profession is often facing the concerns posed by forces outside the profession which seemingly seek to ride the coattails of the efficacy of Acupuncture such as “dry-needling” among Physical Therapists. It seems, however, that few are examining how to secure and safeguard the profession’s previous victories. This paper seeks to explore the need to ensure that our profession can continue to move forward in light of the fact that the sunset of various practice acts is rapidly approaching and examines the practice act in the State of New Mexico and the various threats posed to its renewal.

On the Sunset of the New Mexico Practice Act
and
Safeguarding the Profession into the Future

Sunset

Practitioners of acupuncture in the State of New Mexico enjoy a broad scope of practice, indeed it is recognized as one of the top 3 most prominent scopes of practice within the United States. Practitioners in New Mexico are considered Primary Care Physicians and bestowed the prestigious title, Doctor of Oriental Medicine. This prominence was surely hard fought by practitioners of the era in which the Act was passed. In this era of safeguarding the profession against those who detract from its benefit to patients as well as those who seek to borrow its credibility, the idea that we might not even have a profession to safeguard is likely far from thought or realization. However, the New Mexico practice act passed by the New Mexico legislature has a sunset, a date at which the Act, and thus the profession in New Mexico, expires if not renewed in that year’s legislative session. There is very little literature on the topic and that is likely in part because there hasn’t been much discussion on the matter. However, it is not an affair that has been hiding. The Act itself, in plain language on every single aspect of the table of contents of the Act specifically identifies the repeal of that portion of the Act; and in every instance it states “Repealed effective July 1, 2024” (Acupuncture and Oriental Medicine Practice Act). A requirement for licensure as a DOM in New Mexico is the passage of a jurisprudence examination regarding the Act and Rules. Presumably, every DOM in that state ought to have been intimately familiar enough with the Act to have at least read the Table of Contents and identified that timeline and the need to ensure a renewal of the Act through legislative means by their own participation in the processes of our governmental system. Thus this paper ought to serve as the town cryer to convey the urgency with which we as a profession act.

Although there is little literature on the issue of this imminent sunset, and again presumably little discussion, we ought to be cognizant that other professions are surely watching to see what we do. There are threats to the continued advancement of our profession and many dedicated professionals have carried those fights. To presume that there are not threats to the profession is wildly irresponsible when they present with alarming frequency. Perhaps one of the best examples is dry-needling techniques utilized by the physical therapy industry and its practitioners. In 2020, the US District Court for the District of New Mexico, Judge Judith C. Herrera opined that “the Court concludes that the Board’s determination that the Act permits dry needling is highly persuasive” (NMSAAM v. Kinetacore Holdings, LLC, et al., 2020. p.10). The NMSAAM v. Kinetacore Holdings case is only one local example of the potential threats to the profession. Many practitioners in New Mexico mistakenly view the outcome of that case as a loss to the profession overall. In fact, Judge Herrera dismissed the case in its entirety. Thus the case was a fortunate draw for New Mexico practitioners as those representing the physical therapy profession in the case sought a counterclaim against the acupuncture profession for violations of anti-trust laws… certainly a notable argument and one which the profession would be well advised to take heed of. In particular the use of “anti-trust arguments” were used with profound effect by the chiropractic profession in the 1980’s in the case Wilk v. American Medical Association (1990).

Other Assaults on the Profession

New Mexico has been witness to other events which rightly ought to be viewed as assaults on the profession. During the 2020 regular Legislative Session, an act was proposed by Senator Gerald Ortiz y Pino of Albuquerque, NM which sought to “allow the establishment of a requirement for an additional national practical examination for those applicants” (S.B. 140, 54th Leg. State of NM, 2020.) By all accounts of my own personal acquaintances with those professionals active in the profession in New Mexico, Senator Ortiz y Pino is and has been a friend to the profession and an advocate of it. It was therefore quite a surprise to see legislation introduced which would, in effect, have out right killed the ability of new Doctors to enter the profession. Why? The answer is clear upon familiarization with the requirements for licensure in New Mexico and the various National examinations available to our profession. To gain licensure as a Doctor of Oriental Medicine in New Mexico, an applicant must have completed a Master’s Degree level of education from an accredited institution in Oriental Medicine. This includes many didactic hours in both acupuncture and Chinese herbal medicine and clinical hours in both disciplines. Additionally, an applicant must have successfully completed Clean Needle Technique certification, a Jurisprudence examination, all four National Board Modules from the National Certification Commission for Acupuncture and Oriental Medicine (NCCAOM) – which is comprised of modules in Foundations, Acupuncture and Point Location, Chinese Herbology, and Biomedicine. Finally, an applicant must also pass a rigorous State Clinical Skills Examination which has been independently validated, incorporates all necessary elements to ensure that an applicant is ready to enter the profession and thus safeguard the public (Acupuncture and Oriental Medicine Practice Act). Senator Ortiz y Pino’s SB 140 (2020) which would have required this State Clinical Examination be replaced by a National Clinical Skills Examination was, again by all accounts, well intentioned by him. It has been historically difficult to schedule such State Examinations at various times according to several former Board members I have personally spoken with as well as other “veterans” of the profession in New Mexico. However, where the well intentioned bill falls short is the lack of a National Clinical Skills evaluation of any sort within the profession. In fact, the closest such certification would be the Clean Needle Technique certification… which is already a requirement. In the absence of such an examination, the ability of persons interested in entering the profession in New Mexico would have been completed barred. In March of 2020, the Board of Acupuncture and Oriental Medicine (BAOM), directly questioned members of the New Mexico Regulation and Licensing Department (RLD) regarding this proposed, but failed legislation. I was at that meeting and although Senator Ortiz y Pino was not present for it, it became apparent to me then that Senator Ortiz y Pino had likely believed he was aiding the profession and had been mistakenly or perhaps willfully deceived as to the existence of a National Clinical Skills Examination. The understanding presented to the public by persons present at that meeting was that as the senator became more clear on the unintended consequences of his proposed legislation through the advocacy efforts of practitioners and advocates, he quickly permitted SB 140 to die. Yet the question is stilled begged, who initially made efforts to stymie the flow of new doctors into the profession and why did they do so? Of course this is only a relevant question if one suspects nefarious intent, but the matter certainly stank enough to those involved at the time – myself included – to warrant at least some healthy degree of skepticism.

What then to do? If the local events of SB 140 and NMSAAM v. Kinetacore et al. in 2020 can be viewed as “threats” to the profession, would it not be wise to assume that those players interested either in the failure of the Acupuncture profession or in the borrowing of its credibility in the public’s eye, would also advocate against or attempt to preclude the renewal of the Practice Act in 2024? Even if such malevolence is not levied at the profession would it not be a greater malevolence if practitioners too busy to take notice of the impending expiration date of their profession failed to advocate for its renewal out of sheer ignorance or dare it be said – laziness? Surely something can be done to safeguard the benefits of battles already won many years ago!

Fortunately, members of the NMSAAM Legislative Committee are hard at work attempting to ensure that the practice act is renewed. Full disclosure, I myself am proudly a member of this committee, but to my knowledge, this is the first writing produced on the need for such efforts. Because the various practice acts in the various states began to emerge in the same general time frame of the 1970’s and 1980’s, it is a safe bet that practitioners in other states will soon be facing this very dilemma. The coming period of renewal opportunities will likely offer a chance at expanding the scope of practice in many states but it would be foolish to believe that competing agents would not like to see our scope diminished. Thus we must be prepared to intellectually defend those gains earned only a short 40 or 50 years ago and protect them legislatively. Furthermore, we as a profession must ignore the red-herrings which distract us and the fights we are unlikely to win. We are as likely to lose the dry-needling debate in the courts and legislatures as the AMA did to chiropractors under Sherman Anti-Trust interpretations (Wilk v. AMA, 1990), so don’t focus on whether or not physical therapists should dry-needle, focus on why our service is better. For decades in America, acupuncture has thrived in free market environment because our service is better than what our patients were receiving in mainstream medicine. It is why they came to us. Don’t bicker with a physical therapist (who is not a primary care physician by the way) about whether or not they should be practicing our medicine without a license, demonstrate why you can help their patient achieve better outcomes. Finally, involve yourself in your state organizations to represent and defend the profession, into the future.

References

Patient Protection and Affordable Care Act of 2010, 42 U.S.C. 18001, § 1001, § 2706, (2010).

Acupuncture for Heroes and Seniors Act, H.R. 1183, 116th Cong. (2019).

Acupuncture and Oriental Medicine Practice Act, Chapter 61, Article 14A, NMSA (1978).

State of New Mexico, ex rel. New Mexico Society for Acupuncture and Asian Medicine v. Kinetacore Holdings, LLC, Edo Zylstra, Keri Maywhort, John and Jane Does, No. 1:17-
cv-00250 JCH/SMV (2020). https://law.justia.com/cases/federal/district-courts/newmexico/nmdce/1:2017cv00250/359012/83/Wilk v. American Medical Association, 895 F.2d 352 (7th Cir. 1990).

Act Relating to Licensure; Mandating Establishment of a Requirement for a Practical Examination for Licensure Applicants Pursuant to the Acupuncture and Oriental Medicine Practice Act; Allowing Establishment of a Requirement for an Additional National Practical Examination, S.B. 140, 54th Leg. State of NM, (2020).

Please note: This article expresses the opinions and research of the author, and does not necessarily reflect all views or policies of NMSAAM members, the NMSAAM BOD, or the ASA.