Contributed by Kathryn Z. Berg, MA, CCH
There is a movement in the United State to pass Safe Harbor Laws, in lieu of licensure, to make it legal for homeopaths, and other natural health practitioners, to practice their craft is growing. Although the nation’s first Safe Harbor law in Minnesota was passed in 1999, it wasn’t in effect until 2000. The 20th anniversary is the perfect time to examine what Safe Harbor Laws are, their history, how they work to protect consumers and practitioners, and why they are superior to licensing laws for homeopaths.
The year was 1999. I was beginning my first year of homeopathy school at the Northwestern Academy of Homeopathy in Minneapolis. My two-year old son spent some time at daycare, so it enabled me to have time to respond to a notification that there would be another attempt to make homeopathy and other natural modalities legal.
A few years prior, a popular naturopathic doctor had been set up for investigation for “practicing medicine without a license” by Minnesota Attorney General, Skip Humphrey. (Yes, he is the son of the former Vice President.) In fact, the ND was so popular and had helped so many people that the case was eventually resolved due to a flood of phone calls and letters. Some years before that, Sister Rosalind Gefre was arrested for prostitution for starting a massage therapy school.
The Issue Starts with the Definition of the Practice of Medicine in Minnesota.
MN Stat 147.081, Subd 3 (3), is where the problem is. Subd. 3.Practice of medicine defined.
For purposes of this chapter, a person not exempted under section 147.09 is “practicing medicine” or engaged in the “practice of medicine” if the person does any of the following: […]
(3) offers or undertakes to prevent or to diagnose, correct, or treat in any manner or by any means, methods, devices, or instrumentalities, any disease, illness, pain, wound, fracture, infirmity, deformity or defect of any person;
With this definition, even a pre-school teacher could be charged with violation of this law by helping a child zip his or her winter jacket because it prevents illness. All other states have similar definitions.
A group of citizens who were either practitioners or had been helped by local practitioners got together and decided something had to be done about it. Just because the case was resolved didn’t mean that the overall problem was going to go away. Should we go for licensing? Are there any other options?
An organization called The Minnesota Natural Health Coalition, a 501c3, was formed, along with its sister organization, The Minnesota Natural Health Legal Reform Project, a 501c4 which allows unlimited lobbying. Through discussions with Diane Miller, JD, Jerri Johnson, a homeopath, and other practitioners and consumers of natural health, the flaws in licensing were recognized. Licensure requires Scope of Practice (which is coded into law) and a Standard of Care (which is not coded into law). This means that you can’t offer other modalities in your natural health practice. For example, if a homeopath is licensed as a homeopath, that means they can’t practice gemmotherapy which is considered herbalism by the Food and Drug Administration. This is called “siloing” (also known as turf protection), and it has been researched extensively and recognized to put consumers and practitioners at a disadvantage, unnecessarily.
The group settled on the concept of a Safe Harbor Law. According to the National Health Freedom Coalition, Safe Harbor Exemption laws for these practitioners [safe, natural health practitioners] protect consumer access to the broad range of health care and healing practitioners, such as herbalists, traditional naturopaths, homeopaths, body workers, and culturally specific healing practices, that are not currently regulated by the states and that do not rise to the level of concern requiring state oversight, certification, registration, or licensure. https://nationalhealthfreedom.org/safe-harbor-laws
In other words, as long as the practitioners stay within the realm of doing what is generally recognized as safe, they are not in violation of the medical practice laws. They are, in fact, exempt from the Medical Practices Act. In addition, practitioners aren’t limited to practice just homeopathy, or just massage therapy, or just herbalism.
Minnesota was the first state to pass a Safe Harbor Law for natural health practitioners in 1999. Stacks and stacks of letters and countless phone calls were directed at legislators. Hundreds of people attended hearings. Messages were sent onto the floor by constituents during the floor debate, and this was before everyone had email. The bill had one dissenting vote in the Minnesota Senate and only a handful in the Minnesota House. It became Minnesota Statute 146A.
Minnesota was followed over the years by ten other states, who have used the Minnesota model bill as a starting point for their Safe Harbor Laws. Fifteen additional states have introduced legislation following the Safe Harbor Law model. Fifteen additional states have introduced legislation following the Safe Harbor Law model.
How Does the State Know What is Safe?
As seen regularly in the media and research studies, practices such as drugs and surgery are often not safe. Licensing those practitioners is in effect licensing them to do harm. It seems that with a license, it is acceptable if patients are harmed, as long as the practitioner is not negligent.
States have their own definitions, to be sure. In Minnesota, we have statute 214.001 Subd 2.
Subd. 2.Criteria for regulation.
The legislature declares that no regulation shall be imposed upon any occupation unless required for the safety and well-being of the citizens of the state. In evaluating whether an occupation shall be regulated, the following factors shall be considered:
(1) whether the unregulated practice of an occupation may harm or endanger the health, safety and welfare of citizens of the state and whether the potential for harm is recognizable and not remote [emphasis mine];
(2) whether the practice of an occupation requires specialized skill or training and whether the public needs and will benefit by assurances of initial and continuing occupational ability;
(3) whether the citizens of this state are or may be effectively protected by other means; and
(4) whether the overall cost effectiveness and economic impact would be positive for citizens of the state.
The law goes on to say what needs to happen to determine where the potential for harm is recognizable and not remote. In other words, is the group seeking licensure must be able to prove that harm is both significant and common place. This law recognizes that some things just don’t reach that threshold, and that it is often turf that is being protected and not the consumers.
Protections for Consumers
The Safe Harbor Laws are consumer protection laws. As such, they can and do include a number of consumer protections. Minnesota, Statute 146A includes prohibited behavior; reporting obligations (mandated reporter); an investigative arm in the state Department of Health; the ability of the Department of Health to prohibit practicing any modality that is covered by the statute in the event of a violation of the prohibited behavior list; a Client Bill of Rights, which indicates the training of the practitioner to the client ahead of time among other things; and notifies the consumer that if they have a complaint, which would normally go to a licensing board, they can complain to a division of the Department of Health and how to reach them. The Office of Complementary and Alternative Practices (OCAP) in Minnesota even has a brochure online. https://www.health.state.mn.us/facilities/providers/compalt/docs/ocapbroc2016.pdf
A quick look what has been investigated by OCAP over the years in Minnesota, shows that the law does have teeth, and it is enforced. https://www.health.state.mn.us/facilities/providers/compalt/dispactions.html
The history shows that it is mostly male massage therapists who have been investigated. However, the important thing is that the citizens do have a place to complain, and the law has teeth that can actually shut down practitioners who have violated the statute. It could be argued that licensing isn’t necessary for the protection of the consumers.
What About Licensed Practitioners?
When the 1999 Safe Harbor Law was introduced in Minnesota, licensed practitioners were also included in the bill, which would allow MDs, dentists, nurses, etc., to also learn and practice the unlicensed modalities such as homeopathy. MDs who had attempted to do so in the past had been investigated by the Medical Board. Unfortunately, the Minnesota Medical Association and the Medical Board had that stripped from the bill almost immediately. Approximately six years ago, the ability for licensed practitioners to practice these modalities was added to the Safe Harbor Statute (MN Stat 146A), so now they can safely practice without fear of being investigated so long as they practice within the standard of care, and referrals can be made directly to natural practitioners, rather than a vague suggestion of “find a homeopath.”
Why Do So Many Natural Health Practitioners Want to Be Licensed?
Licensing is historically directed at occupations that are dangerous.
I have worked as a volunteer citizen lobbyist for 10 years in the Minnesota Legislature, protecting MN Statute 146A (we even got the Governor upset with us for that) and successfully fighting licensure attempts by those currently covered by 146A.
Every group has a different reason for wanting to be licensed. The most vocal group in Minnesota is the massage therapists. Many states do have licensing for massage therapists. The therapists want to be distinguished from those who are actually engaging in prostitution but calling themselves massage therapists. Cities have implemented their own licensing, sometimes as a business license and sometimes as an occupational license. Some cities don’t trust the state or want to give up their licenses. With a business license, the police can knock and enter to inspect the premises. With an occupational license, someone has to complain before they can investigate. Experience has shown that this state licensing, however, does not stop the prostitution rings from operating. When you can find a massage therapy clinic entitled Happy Ending Massage Therapy on a Google search in a state that requires licensing, one has to question the effectiveness of such licenses. A license for this reason, in fact, punishes the law-abiding citizens, not those who are breaking the law.
The ability to have their services covered by insurance is a reason that most professional groups mention as a reason why they would like to have their practitioners licensed. Practical experience has shown that it doesn’t make a difference. In Minnesota, accupuncturists/traditional Chinese medicine practitioners are licensed and still not covered in a way that allows the consumer to utilize their insurance to cover them. For example, a former insurer of my family required that you pursue an allopathic regimen for six months before they would cover acupuncture, and they only covered pain. They wouldn’t cover acupuncture for any other reason. Our current insurer charges a much higher monthly premium to include coverage of acupuncture.
If being covered by insurance is what practitioners want, it would inevitably result in higher costs for the practitioner which would be passed on to the consumer, which is also true of merely having a license. An interesting side note is that the groups behind the massage therapy licensure movements include organizations which provide continuing education, a requirement for any licensed practitioner. A Safe Harbor Law that is enforceable in each state should be sufficient to be covered by health insurance. An experienced lobbyist in Minnesota has suggested that getting natural health modalities to be covered by health insurance should actually be done through the Department of Commerce, who in most states regulates insurance companies. That way, you don’t have to deal with the licensing boards in trying to pass laws.
In summary, while a license for homeopathy may seem like a good idea on the surface, closer examination of the unintended consequences of licensing show that it may not be beneficial to the practitioner or the consumer. The least amount of regulation and interference by the state as created by Safe Harbor Laws creates a better environment for both the consumer and the practitioners.
Kathryn Z Berg, MA, CCH is a Certified Classical Homeopath and has been practicing for 19 years. She owns and practices at Lotus Homeopathy, Inc. in Woodbury, MN. She is married and has two adult sons, both of whom had homeopathic treatment before they were born.