Regulation of Complementary Therapies: States of Confusion
Not too many years ago, proponents of massage therapy, acupuncture and acupressure, chiropractic, and other complementary or alternative therapies for animals often were dismissed as part of the lunatic fringe. Today, with apologies to Bob Dylan, the times they are a changing.
According to a 2005 survey conducted by the North Carolina Horse Council, 61% of horse owners who responded reported using massage therapists for their horses, while 46% used the services of an equine chiropractor. Only 24% of the horse owners thought a massage therapist should be supervised by a veterinarian, while 49% felt that veterinary supervision should be required for chiropractic treatment. Four-fifths of the respondents thought that massage therapists and chiropractors should have certifications from an accredited school.
Complementary and alternative therapies might not be in the mainstream for horse owners--at least not yet--but the therapies are being demanded by an ever-increasing number of consumers, and they are being provided by a growing number of veterinarians and practitioners without veterinary licenses.
As demand for, and acceptance of, complementary and alternative therapies grow, state veterinary boards across the United States are facing some thorny questions--how should these therapies be regulated, or should they be regulated at all?
The level of regulation depends on two things, the policing powers of state veterinary boards and the statutory definition of "veterinary medicine," both of which vary from state to state. For example, in states where a veterinary board must wait for a complaint from a licensed veterinarian or the public before an investigation can be initiated, the board's police powers are somewhat limited, at least initially. This might reflect a "no harm (or complaint), no foul" mentality on the part of legislators.
More important is how a state defines "veterinary medicine." This is not as straightforward as it sounds, and people often are surprised to learn that there is no single definition that applies across the country. Whether practitioners of a particular complementary or alternative therapy will run afoul of a state veterinary practice act depends on the jurisdiction in which the individual plies his or her trade. A therapy technique that violates the practice act in one state might be acceptable in another jurisdiction.
If a particular therapy technique falls within the definition in a state's veterinary practice act, the state veterinary board clearly has the statutory power to regulate the practice. In that circumstance, the relevant questions are twofold: should the practice be regulated, and if so, what regulation is appropriate?
If, on the other hand, a particular therapy or practice is not included in a state's definition of "veterinary medicine," the therapy and its practitioners are beyond the purview of the regulatory board, at least in that state.
Regulation of complementary and alternative therapies is a contentious issue on many fronts. In its "Veterinary State Legislative 2007 Year-End Summary," the American Veterinary Medical Association (AVMA) listed practice-related legislative activity in more than a dozen states. For example, according to the AVMA:
- In Alabama legislation was passed extending the state veterinary board's authority to regulate unlicensed individuals practicing veterinary medicine;
- In Colorado legislation was passed allowing licensed physical therapists to treat animals after satisfying certain certification requirements;
- In Maryland, final regulations took effect allowing licensed acupuncturists to treat animals under veterinary oversight;
- In Mississippi approval was given allowing a licensed chiropractor to work as an unlicensed veterinary assistant and treat animals under the direct supervision of a veterinarian.
Legislation under consideration in early 2008, according to the AVMA, included 1) a major revision of the veterinary practice act in Indiana to specifically include performing complementary or alternative therapies on an animal for compensation in the definition of veterinary medicine, 2) the certification of animal therapists in Nebraska, 3) new certification requirements for animal chiropractors in Oklahoma, and 4) related measures in several other states.
The AVMA's stand on the issue is clear: complementary and alternative therapies fit squarely within the organization's definition of "veterinary medicine." Even the often-used, collective acronym "CAVM" stands for complementary and alternative veterinary medicine.
Model Practice Act
The AVMA Model Veterinary Practice Act defines "complementary, alternative, and integrative therapies" as "a heterogeneous group of preventative, diagnostic, and therapeutic philosophies and practices, which at the time they are performed may differ from current scientific knowledge, or whose theoretical basis and techniques may diverge from veterinary medicine routinely taught in accredited veterinary medical colleges, or both. These therapies include, but are not limited to, veterinary acupuncture, acutherapy, and acupressure; veterinary homeopathy; veterinary manual or manipulative therapy (i.e., therapies based on techniques practiced in osteopathy, chiropractic medicine, or physical medicine and therapy); veterinary nutraceutical therapy; and veterinary phytotherapy."
The definition is quite a mouthful, and that's for a good reason. It seems intended to encompass any and all complementary and alternative therapies, both now and in the future. The phrase "include, but are not limited to" is boilerplate legalese for "everything I can think of now, plus anything that might come to mind later."
The AVMA Model Practice Act then defines the "practice of veterinary medicine" to include "the use of complementary, alternative, and integrative therapy."
The Model State Veterinary Practice Act drafted by the American Association of Veterinary State Boards (AAVSB) specifically includes animal chiropractic and animal physical therapy in the practice of veterinary medicine. "Animal physical therapy," according to the AAVSB, is a comprehensive term that includes the use of stretching, massage therapy, rehabilitative exercise, hydrotherapy, application of heat or cold, and stimulation through the use of low-level lasers, electrical sources, magnetic fields, and non-invasive ultrasound.
Complementary and alternative therapies were included in the AVMA's definition of the practice of veterinary medicine due to a perceived need to protect the public.
"If these definitions are excluded," the official Commentary to the Model Act explains, "the state has no authority to discipline an individual, whether a licensed veterinarian or not, who causes harm to an animal as a result of practicing such therapies." Enforcement options set out in the Model Veterinary Practice Act include an injunction against the practitioner along with possible fines and jail time for anyone practicing veterinary medicine without a license.
Mercedes Clemens, a licensed massage therapist suing for the right to practice on animals in Maryland.
Practice In The Real World
The AVMA Model Veterinary Practice Act and the AAVSB Model State Veterinary Practice Act were put forward as guides to state veterinary boards to be used as templates to encourage uniformity across the country. Uniformity hasn't happened, however, and states generally have forged ahead individually in the regulatory arena.
Practice acts in most states include at least some forms of complementary and alternative therapies in the definition of veterinary medicine, either explicitly or by implication. Some states specifically exclude particular therapies from the definition of veterinary medicine, while a few jurisdictions allow the practice of complementary and alternative therapies through non-specific statutory language.
In Kentucky, for example, "veterinary medicine" is defined very broadly by Kentucky Revised Statute 321.181(5)(a):
"To diagnose, treat, correct, change, relieve, or prevent: animal disease, deformity, defect, injury, or other physical or mental conditions, including the prescription or administration of any drug, medicine, biologic, apparatus, application, anesthetic, or other therapeutic or diagnostic substance or technique, and the use of any manual or mechanical procedure for testing for pregnancy, or for correcting sterility or infertility, or to render advice or recommendation with regard to any of the above."
Subsequent sections add to the definition: veterinary surgery, obstetrics, embryo transfer, dentistry, acupuncture, manipulation, and the prescribing, administering, or dispensing of drugs. Read expansively, veterinary medicine in Kentucky could encompass all complementary and alternative therapies--and almost anything else that can be done to an animal, from emergency colic surgery to bandaging a superficial wound.
The blow to non-veterinarians is softened somewhat by a list of nine statutory exceptions. For example, it is not a violation of the Kentucky practice act for anyone to treat an animal in an emergency, provided that individual is not paid and does not claim to be a veterinarian, or for an owner (or the owner's fulltime or part-time regular employees) to treat the owner's animals. Statutes of most other states have similar provisions, some more restrictive and other less so.
In Florida, for example, recent legislation expanded the exception for an animal's owner and regular employee to include individuals hired on a part-time basis or as independent contractors. This exception specifically includes farriers and equine dentists who float teeth by hand, and by implication could include practitioners of other complementary or alternative therapies.
The veterinary practice act in Illinois includes exceptions for an animal's owner and the owner's employees, plus the owner and employees of a "service and care provider of livestock caring for and treating livestock belonging to the owner." Illinois also allows non-veterinarians to provide complementary or alternative therapies to animals as long as the practitioner does not claim to be a veterinarian and if the animal's owner gives written and informed consent for the treatment.
Individually, state veterinary practice acts can be confusing at best. Collectively, the acts are a mishmash of prohibitions and exceptions that frequently cannot be reconciled with one another. Ultimately, enforcement of a state's veterinary practice act comes down to interpretation.
A Word Here, A Word There
The AVMA list includes final approval of regulations allowing the Maryland Board of Acupuncture to certify individuals to treat animals among 2007 legislative developments. This is a true statement, as far as it goes, but there is more to the story. While final regulations took effect on Jan. 1, 2007, wrangling between the Board of Acupuncture and the Board of Veterinary Examiners over who can do what in Maryland stretches back more than a decade. Eventual resolution of the dispute turned on a single word.
The Maryland Board of Acupuncture was created by the legislature in 1994, with the general power to establish criteria for the licensing and discipline of individuals practicing acupuncture. The Board's authority to regulate acupuncturists treating humans was obvious from the legislation. Less clear was the question of whether the Board of Acupuncture also had the authority to license non-veterinarians to practice acupuncture on animals.
The Board of Acupuncture asserted that it did, pursuant to the general authority granted to the Board to regulate the practice of acupuncture in the state. The Board of Veterinary Examiners, not surprisingly, argued that acupuncture (when performed on animals) fits nicely into the state's definition of veterinary medicine and that the Veterinary Examiners had the exclusive authority to license the use of animal acupuncture through the state veterinary practice act.
Both sides dug in their heels, and the Maryland Attorney General was asked to interpret the Acupuncture Act. In a September 1995 Opinion, the Attorney General came down on the side of the Board of Acupuncture. The Attorney General agreed that acupuncture fell within the broad definition of veterinary medicine in the state's practice act, but then explained that it was possible for more than one agency to share regulatory authority over the practice.
In other words, the Board of Veterinary Examiners could license veterinarians to perform acupuncture on animals and the Board of Acupuncture could, in theory at least, authorize licensed non-veterinarian acupuncturists to do the same thing. Such overlap, the Opinion explained, fosters "consumer choice" in the selection of services.
The real question was how to define the scope of the practice of acupuncture.
Maryland law in the mid-1970s required that acupuncturists work only under the supervision of a physician, clearly implying a limitation to the treatment of humans. In 1982, the law specifically defined the practice of acupuncture as stimulation of points "on or near the surface of the human body."
Things changed in 1994, when the Board of Acupuncture was created and the law defining the practice of acupuncture was broadened. The descriptive--and limiting--word "human" was deleted, leaving a reference only to "the surface of the body." The Attorney General said that the word "body," without a qualifying adjective, included both human bodies and animal bodies. The Opinion concluded that after the adoption of appropriate regulations, a properly trained and licensed acupuncturist could also be certified by the Board of Acupuncture to treat animals. Licensed acupuncturists, in other words, could treat animals, even if they were not licensed veterinarians and even though animal acupuncture was included in the definition of veterinary medicine.
The Board of Acupuncture took the hint from the Attorney General and promptly adopted emergency regulations governing acupuncture treatment for animals. The new regulations established separate certification requirements for licensed acupuncturists who wanted to expand their practices to include animals and also required cooperation and consultation with a veterinarian.
Statutory interpretation led to different results in New Hampshire and Michigan, however. In similar cases, licensed chiropractors wanted to practice their skills on animals without being licensed as veterinarians. Veterinary boards in both states argued that practicing chiropractic techniques on animals should be regulated as the practice of veterinary medicine requiring an appropriate license, and courts agreed.
In Sidell v. New Hampshire Board of Veterinary Medicine, the New Hampshire Superior Court explained that while the state's Veterinary Practice Act did not specifically include veterinary chiropractic in the statutory definition of veterinary medicine, the catch-all phrase "all other branches or specialties of veterinary medicine" was sufficiently broad to encompass chiropractic work on animals. The Court also noted several references to the word "person" in the Chiropractic Board's enabling legislation as indicative of a legislative intent to allow chiropractic practice only on humans.
The Michigan Court of Appeals reached a similar conclusion in Department of Consumer and Industry Services v. Hoffman. Based on a number of "prior statutory definitions of chiropractic that explicitly limited all aspects of the practice of chiropractic to humans," the Court concluded that Hoffman's "action of performing spinal adjustments on horses is contemplated by the statutes regulating veterinary medicine." Hoffman, in other words, was guilty of practicing veterinary medicine without a license.
In both Sidell and Hoffman, as in the Maryland acupuncture wrangling, the line between the legal practice of a legitimate complementary or alternative veterinary therapy and the illegal practice of veterinary medicine without a license turned on statutory interpretation of a word or phrase. It should go without saying that practitioners of any complementary or alternative therapy technique must be familiar with the veterinary practice act in the state where he or she intends to work.
Less obvious, but equally important, is the necessity for animal owners to be aware of the veterinary practice act in their states. Neither state regulation of a particular therapy technique nor licensing of its practitioners can guarantee a successful outcome. A basic understanding of a state's licensing scheme for veterinary and non-veterinary practitioners can, however, provide some direction about how and where complaints should be directed if things go awry.
Internet sites for state legislatures and for state veterinary boards are among the best sources to retrieve current veterinary practice acts. The University of Tennessee Canine and Equine Rehabilitation Gateway (canineequinerehab.com) also has links to state veterinary practice acts, and the American Veterinary Medical Association posts a frequently updated summary of exceptions to state practice acts at avma.org/advocacy/state/issues/sr_cavm_exceptions.asp.
More important than the bare bones language of a state practice act might be an understanding of how that language is likely to be interpreted by courts in the jurisdiction. Failure to consult with an attorney versed in this specialized area of law is an invitation to a state veterinary board investigation, a cease and desist letter, fines, and possible criminal charges.
A Harm-Based Model for Regulation
Regulatory bodies exist for one of two general and well-recognized purposes, either to protect the public against harm caused by unskilled or dishonest persons, or to raise revenue for the state through the issuance of licenses. During a day-long session on the Legal Aspects of Regulation of Complementary and Alternative Veterinary Medicine at the 2007 meeting of the American Veterinary Medical Association in Washington, D.C., the role of state veterinary boards was defined to include:
- Protection of the public interest through licensing of veterinarians;
- Enhancement of the position of veterinarians as health care professionals;
- Provision of the best treatment available for animals;
- Fostering of certainty and continuity for the profession.
Acknowledging that state veterinary boards have a legitimate interest in protecting the public raises two related questions:
First, how far should any regulatory body go to protect the public if the public does not want to be protected? Is it inconsistent to argue, for example, that a person who has free choice to seek pain-relieving acupuncture from a non-physician acupuncturist should be denied the opportunity to obtain similar treatments from a non-veterinarian acupuncturist for her horse? The converse argument, of course, is that lay people lack the expertise to distinguish between competent and incompetent practitioners or therapies.
Second, if the goal of regulation is to protect the public--and the public's animals--from harm due to the practice of complementary/alternative therapies by non-veterinarians, should an actual showing of harm be required before a particular practice is regulated? Or is speculative harm sufficient to warrant regulation?
There are no easy answers to either question. The growing demand for, and acceptance of, non-traditional therapies suggests that animal owners want to exercise freedom of choice when deciding on care for their animals. The only certainty is that regulation of complementary and alternative veterinary therapies will continue to be a contentious issue in the years to come.
About the Author
Milt Toby is an author and attorney who has been writing about horses and legal issues affecting the equine industry for more than 40 years. Former Chair of the Kentucky Bar Association's Equine Law Section, Milt has written eight nonfiction books, including national award winners Dancer’s Image and Noor. He teaches Equine Commercial Law in the University of Louisville's Equine Industry Program.