credentialing of unlicensed herbalists

July 9, 2004

This is an interesting provision of the CA health freedom act. It

requires the unlicensed chinese herbalist to disclose

(F) His or her educational, training, experience, and other

qualifications regarding the services to be provided.

this provision would seem to implicitly supportive of a credentialing

process for unlicensed TCM herbalists who are out there. Credentialing

by examination would give valuable information to the public and

protect safety without imposing any restrictions or government

oversight. People could choose to be uncredentialed, but the law of

supply and demand would weed them out of the english speaking market as

soon as it became widely known that there were board certified

herbalists out there. the acupuncture profession certainly does not

devote much energy to this matter. If the NCCAOM will not credential

these legal practitioners of herbal medicine, then someone else must do

it.

BTW, once upon a time I was duped by a lawyer from the NCCAOM who

lectured in my ethics class. either she was unaware that what she told

us was incorrect or she had a personal philosophy towards regulatory

authority. I know this woman to be a very liberal democrat. My class

was told in no uncertain terms that it was expressly illegal to

practice herbology in any state in the US unless you had explicitly

stated scope of practice. she answered directly that the various

western and chinese herb shop herbalists in portland were all guilty of

practicing medicine without a license. The only thing that protected

them from prosecution was their low visibility and lack of consumer

complaints. I have parroted this ignorance or deception many times in

public and online. I now know this to be wholly false. Common law has

always protected such herbalists and now healthcare freedom acts are

enshrining common law into statute.

This lecture changed my life and sent me down a path I never intended.

It effectively ended the libertarian phase of my life. My research of

US common law has now revived that spirit. After beating my head

against the wall inside the acupuncture profession for the past decade,

I now realize a good number of those I consider my peers are not

actually part of the licensed profession. Don't get me wrong, I have

many peers within as well and I have no intention to give up my license

as I require it to practice acupuncture. I just don't think there are

enough passionate herbalists in the profession to ever dominate the

attention of the professional organizations. Nothing against

acupuncture, but herbology is the dominant form of OM throughout all of

chinese history and clearly the modality with the most promise in the

treatment of chronic internal disorders. There is clearly a need for

an independent TCM herbal profession that overlaps but is not limited

to the acupuncture profession. Bob Flaws said at CHA that this will

never happen, but I think he was referring to a licensed herbal

profession. The unlicensed herbalists already exist...legally. Let's

gather those with proper training to join this cause and work with

acupuncture organizations when our motives overlap.

Chinese Herbs

FAX:

July 9, 2004

It has always been my understanding, similar to the lawyer you

mention, that, since the 1930s, the overwhelming majority of states

have a Medical Practices Act and that such specific legislation trumps

common law. Those Medical Practices Acts give Western MDs a monopoly

on the professional practice of medicine. In those states with MPAs,

all other professional health care providers (such as LicAcs, DCs,

DOs, DDSs, RPTs, podiatrists, optometrists, etc.) do so legally via a

legisltative exemption to the MPA, i.e., their own act which allows

them to practice and includes a legal scope of practice. This is the

reason why we acupuncturists have had to spend the last 25 years,

countless hours, and lots of money getting legislation legalizing

acupuncture.

So why is the situation any different for herbalists (Western or

Chinese) who are acting as health professionals by 1) charging fees

for services and 2) holding themselves out to the public as

professionals (via advertising, maintainence of professional office

space, a business card, signage, etc.)? The old argument that " if it's

not specifically mdentioned in a law, then it's legal " is spurious

when the MPAs have unequivocally created a universal monopoly on the

professional practice of medicine (defined as the treatment of disease

and relief of pain) in the states where these MPAs exist.

I may have missed something in previous posts on this topic. If so,

can you please clue me in. This is very important to get correct.

Bob

July 9, 2004

I guess the answer to my previous questions is contained in your

posting on CA exact scope. Has this legislation been passed? If so, do

you know of any similar legislation that has been passed in other states?

Bob

July 10, 2004

Bob,

I spent several hundred hours investigating the issues of practicing medicine

without a license (PMWL) in the early 1990's. The result was the following

paper:

http://www.rmhiherbal.org/a/f.ahr3.rights.html

The right to practice herbology, legal history and basis

It was written in 1995, appeared on our website in 1998, and has been read by

many people included lawyers who have sent me comments, essentially agreeing

with the conclusions and offering no rebuttals to any of the points. I train all

of my students to follow all of the guidelines discussed in the article so that

they practice lawfully. (There is a distinction between " legal " and " lawful " -

" legal " is the proper term to use when referring to conformance with statutory

provisions, " lawful " is the proper term to use when referring to exercise of

one's rights at common law. Attorneys, weasels that many are, will try to

confuse people on this point. So the question should not be is it legal to

practice as an herbalist, but is it lawful. I'm not trying to be cute. This is

why people hate lawyers.)

I take an interest in all major cases of prosecutions for PMWL. My observations

are that prosecutors will pursue only the most blatant cases in which the

practitioner clearly violated various taboos (listed in my article) on multiple

occasions. The most recent case was that of Hulda Clark in Indiana. She referred

to herself as " Doctor " Clark (strike 1), she diagnosed people as having AIDS and

other medically defined conditions using relatively vaporous methods (strike 2),

she claimed to be able to " cure " these conditions (strike 3). In spite of three

strikes against her, for which she had to hire a lawyer to defend her, and was

out $50,000 for this defense, she won her case. Juries are generally so

sympathetic to alternative practitioners, unless they kill someone or are guilty

of maliciousness, that prosecutors are reluctant to prosecute anything but cases

that clearly violate guidelines issued in case law by the higher courts. But the

important lesson from this case is that she was prosecuted because there was

evidence that she did violate these clearly stated guidelines. The statutory

wording of medical practice acts is generally consistent with this case law

(common law), not in conflict with it.

Such case law is rarely overturned by medical practice statutes. Statutes cannot

demand things, at least in principle, that would be ruled violations of

constitutional rights - at least that was generally true until the Patriot Act

insanity came along. Licensing acts must be consistent with case law defining

the extent of " police powers " , and when natural rights are at issue, the police

powers must follow very strict guidelines so as to not violate these rights.

Even with the Patriot Act, state and local reactions to this are heading in the

opposite direction. The Health Freedom Acts are merely one example of how local

and state laws have been passed to support a more libertarian agenda, in

reaction to the tyranny at higher levels. Witness the number of communities and

states that have passed statutes stating that their officials shall not

cooperate with federal agents to enforce provisions of the Patriot Act. I

predict this trend will escalate.

---Roger Wicke, PhD, TCM Clinical Herbalist

contact: www.rmhiherbal.org/contact/

Rocky Mountain Herbal Institute, Hot Springs, Montana USA

Clinical herbology training programs - www.rmhiherbal.org

> " Bob Flaws " <pemachophel2001

>Re: credentialing of unlicensed herbalists

>

>It has always been my understanding, similar to the lawyer you

>mention, that, since the 1930s, the overwhelming majority of states

>have a Medical Practices Act and that such specific legislation trumps

>common law. Those Medical Practices Acts give Western MDs a monopoly

>on the professional practice of medicine. In those states with MPAs,

>all other professional health care providers (such as LicAcs, DCs,

>DOs, DDSs, RPTs, podiatrists, optometrists, etc.) do so legally via a

>legisltative exemption to the MPA, i.e., their own act which allows

>them to practice and includes a legal scope of practice. This is the

>reason why we acupuncturists have had to spend the last 25 years,

>countless hours, and lots of money getting legislation legalizing

>acupuncture.

>

>So why is the situation any different for herbalists (Western or

>Chinese) who are acting as health professionals by 1) charging fees

>for services and 2) holding themselves out to the public as

>professionals (via advertising, maintainence of professional office

>space, a business card, signage, etc.)? The old argument that " if it's

>not specifically mdentioned in a law, then it's legal " is spurious

>when the MPAs have unequivocally created a universal monopoly on the

>professional practice of medicine (defined as the treatment of disease

>and relief of pain) in the states where these MPAs exist.

>

>I may have missed something in previous posts on this topic. If so,

>can you please clue me in. This is very important to get correct.

>

>Bob

---Roger Wicke, PhD, TCM Clinical Herbalist

contact: www.rmhiherbal.org/contact/

Rocky Mountain Herbal Institute, Hot Springs, Montana USA

Clinical herbology training programs - www.rmhiherbal.org

July 12, 2004

My understanding from as an herbalist is if using TCM we use terms such as

related to 5 element/8 principle....since according to MD's yin and yang is a

bunch of gibberish and all we do is balance energy we are not practicing western

med. As a past western herbalist it was a game of terms; I could not treat or

fix LDL levels but I could support the digestion and circulatory system. IBS aid

in stool development at no time can I ever say that I treat or cure a western

disease.

For any that are not familiar with the American Herbalist Guild, this is an

organization that is attempting to create a level of training for herbalist in

the US, great organization and some top notch conferences. Not the usual rehash

of what you learned at school.

Bob Linde, AP

Bob Flaws <pemachophel2001 wrote: