Legislative overview by Leslie Emerick, Lobbyist
In the November election the Democrats took control of the state Senate starting January 8th, 2018 when the Legislative session starts. This means that the Governor, House and Senate will all be under Democratic control in January. The upcoming session is the 60-day short-session of the legislature where they work on the Supplemental Budget. As a reminder, the WA State Legislature is biennial. The 2-year state operating, capital and transportation budgets are determined during the long, 120-day legislative session in odd years such as 2015, 2017…supplemental budgets are created during the short session in even years to fix the larger biennial budgets. This also means that bills live for two years and some bills that we followed last session will be back in 2018.
Some big issues from two state budgets remain on the table. The state Supreme Court does not think the legislature has accomplished their goal of fulling funding education under the McCleary Decision. They are required to have a funding solution by September 2018. The states Capital Budget funding construction projects statewide for schools, colleges and other state institutions has also been on hold due to the Hirst Decision in the Supreme Court. The Democrats may have a majority, but to sign bonds for the state they need 60 votes, so they will still have to negotiate with the Republicans to pay for the bonds.
The Governor has suggested a Carbon Tax in his initial budget as a way of funding education. No one wants a Special Session in 2018 because it’s an election year and the entire House of Representatives are up for reelection and half of the Senate. This is a good year to invest in your WEAMA Political Action Committee (PAC) to keep legislators who support your profession in office by financially supporting their campaigns!
I met with key legislators on the House and Senate Health Care Committees during the 2017 Fall Legislative Days over November 13-17th this year to discuss issues related to East Asian Medicine. I met with some in their home districts prior to that time such as the new chair of the Senate Health Care Committee, Senator Annette Cleveland from Vancouver and Rep Eileen Cody, the chair of the House Health Care committee in West Seattle.
WEAMA Legislative Team
During the 2018 legislative session, Curt Eschels, Jason Taylor and I will meet weekly to review upcoming legislation that might impact EAMPs and make a determination whether we need to sign in or testify on a bill. I will begin preparing weekly reports for the WEAMA Board of Directors to review during the legislative session. Typically, over 2,000 bills are introduced each session and WEAMA tracks about 30-40 bills with potential impacts to EAMPs, insurance or general health care related issues.
WEAMA Legislative Priorities
East Asian Medicine Scope of Practice and Training Requirements
WEAMA has been considering a bill for 2018 that clarifies East Asian Medicine Scope of Practice and Training Requirements. The WEAMA Board decided at the last meeting that the bill needs additional legal review and stakeholder work. They decided to hold off on running legislation in 2018 that would clarify some definitions and get legislative authority for potential future CE’s. We are also reviewing closing some loopholes regarding other professions practicing acupuncture in our statute, RCW 18.06, and will receive legal advice to rework portions of the bill.
Opposing Dry Needling
One of the elements of our clarification bill is that trigger points are included in the definition of acupuncture. This has turned out to be very controversial for the physical therapists (PTs). The PTs were considering running their dry needling bill again in 2018. PTs will not run their dry needling bill if EAMPs does not run our bill with trigger points in 2018. Although this was a consideration, it was not the only reason the board decided to postpone running the bill in 2018.
What I found in my meetings with legislators is that they are not very interested in a scope of practice fight between the PTs and the EAMPs over dry needling and trigger points and were reluctant to sign onto our legislation if that is not worked out ahead of time. As I understand it, the PT’s got the same feedback from legislators regarding dry needling and they would not be successful unless they work it out with EAMPs.
WEAMA has been debating the pros and cons of an invitation by PTWA for a facilitated discussion. This would not be the first time WEAMA has met with the Physical Therapy of Washington (PTWA) association to discuss dry needling related issues, so this is nothing new. The board has decided to participate in one facilitated discussion with PTWA in May 2018 to see if we can find any common ground. Participating in this conversation does not commit WEAMA to any position or agreement on the issue of dry needling.
Support Acupuncture as an Alternative to Opioids
WEAMA submitted a letter to Governor Inslee on acupuncture as an alternative to opioids and included recent evidence based data on the report. Within a week of submitting the letter, WEAMA was invited to attend a meeting with the medical directors of the Health Care Authority, Medicaid and the Dept. of Health. They were very interested in our request for a pilot project for Medicaid to include acupuncturists, chiropractors, PTs and massage therapists. Although the Governor did not include funding for adding acupuncture and other therapies such as chiropractic, massage and PT to Medicaid, there is a lot of interest among legislators to promote these therapies as alternatives to opioids in the state’s largest insurance program.
In the private insurance market, acupuncture treatments for chemical dependency are not limited under the Essential Health Benefits WAC 284-43-5642(5)(a) (vi) Acupuncture treatment visits without application of the visit limitation requirements, when provided for chemical dependency.
Support Prior Authorization Revisions
WEAMA has been working with the chiropractors and PTs on a prior authorization bill for about 3 years now. A new bill will be proposed this session. The draft bill states “A health carrier may not require prior authorization for an initial evaluation and management visit or an initial, and up to 12 consecutive treatment visits with a contracting provider in a new episode of care of chiropractic, physical therapy, occupational therapy, East Asian medicine, massage therapy, or speech and hearing therapies within the benefit limits of the health plan.” We will be following this bill closely this session.
State Agency Regulatory Update
Acupuncture and ARNPs Medical Acupuncture Advisory Opinion with NCQAC
Fujio McPherson, a former member of the EAMAC and a dual licensed EAMP and ARNP, submitted a proposal to the Nursing Care Quality Assurance Commission (NCQAC) to allow advanced registered nurse practitioners (ARNPs) in Washington state to be able to do “medical acupuncture” similar to what the medical doctors and osteopaths are allowed to do for 300 hours.
He was successful in his request and the NCQAC approved the ARNP Medical Acupuncture Advisory Opinion at their November 17th, 2018 meeting. Dr. Yang and Curt Eschels, WEAMA Board members, testified in opposition at the public portion of the meeting. They each had 3 minutes to speak. NCQAC determined that acupuncture is within their current scope of practice. The Commission said an ARNP should obtain training through a national or international accredited program.
The NCQAC recommended the following amounts of training:
- For those practicing acupuncture and East Asian medicine: 1500 hours
- For those adding medical acupuncture techniques: not less than 300 hours
- For those practicing a medical acupuncture protocol (e.g., NADA or battlefield acupuncture: variable)
The NCQAC also denied a request by the East Asian Medicine Advisory Committee (EAMAC) to carry out rulemaking regarding ARNPs performing medical acupuncture. The NCQAC has 60 days from November 17, 2018 to respond to the EAMAC’s request for rulemaking. WEAMA will monitor how the EAMAC responds to the NCQAC denial for rulemaking.
WEAMA is concerned that the Advisory Opinion would seem to set a precedent for sharply reduced training for acupuncture by other professions. Furthermore, the opinion fails to specify any required content for acupuncture training. Not containing any substantive standards would seem to make the allowance arbitrary and leave the Commission without a sound basis to regulate nurse acupuncturists. The Opinion recommends a model “similar to the AAAOM model”, which has only vague qualitative attributes, but no quantitative standards.
The Commission implies that it can allow nurse practitioners to practice a substantively and legally different system of medicine without adopting specific standards for training and competence and standard of care.
The Advisory Opinion would allow undefined “medical acupuncture” but does not differentiate it from acupuncture regulated under Chapter 18.06 RCW. Therefore, the Commission would have no clear legal basis to decide if an action by a nurse practitioner constitutes “medical acupuncture” within the scope of practice, or if it constitutes acupuncture defined in Chapter 18.06 RCW,
There was no nationally accredited program for “medical acupuncture” training available to nurses when the Advisory Opinion was adopted. Not long after adoption, Helms started offering a 200-hour “medical acupuncture” training to ARNP and physician assistants of mostly online classes. It is unclear whether the new offering is accredited by any accrediting body.
WEAMA testified at the meeting about our concerns for consistent standards for the practice of acupuncture in WA State. The NCQAC claim they have the statutory authority to determine what is in their scope of practice. They decided that they will not do rulemaking in relation to the advisory opinion and WEAMA and the public will not have additional opportunity to comment. WEAMA will evaluate the legality of this decision and the board will be reviewing options to address their concerns regarding the adopted ARNP Advisory Opinion on Medical Acupuncture.
East Asian Medicine Advisory Committee at DOH
The East Asian Medicine Advisory Committee (EAMAC) requested rulemaking on the Advisory Opinion on ARNPs practicing Medical Acupuncture and submitted it to the NCQAC. As stated above, the request was denied by the NCQAC. We need further discussion about this with the EAMAC. Their next meeting is February 9, 2018 at the Department of Health. Creekside Two Center Point, Room 307, 20425 72nd Ave. S., Bldg 2, Ste. 310 Kent, WA.
DOH Rule making: Chapter 246-803 WAC East Asian Medicine Practitioner.
DOH is considering revising the East Asian medicine practitioner rules consistent with statutorily authorized five-year rule review. They have not set a date yet for the initial stakeholder meetings.
This rule review is being done consistent with the five-year rule review under RCW 43.70.041. As part of the review, the department will be looking at areas to consolidate and clarify requirements to better reflect best practices and complete general housekeeping. In the process, the department is also considering adding new rules for record keeping, infection control and expired licenses. Rulemaking maybe necessary to update, clarify, and modernize rule language to assure alignment with current practice and increase patient safety. Establishing clear record keeping and infection control rules will provide guidance to practitioners, potentially reducing the number and cost of disciplinary actions related to East Asian medicine practitioners.
The rules hearings will be held with the East Asian Medicine Advisory Committee meetings in the future. If you are aware of any changes that need to be made in the existing WAC 246-803 East Asian medicine practitioner, please let us know.
Labor & Industries (L & I) Update
WEAMA was successful in 2017 gaining approval from the Washington State Department of Labor & Industries (L&I) to begin the Acupuncture Pilot Project in October 2017. L&I will use the pilot rulemaking process to allow and pay for acupuncture services during this pilot (RCW 34.05.313 Feasibility studies – Pilot projects). The exceptions to allow payment for acupuncture are effective throughout a two-year pilot period or as otherwise specified and will apply only to pilot participants. The CR-102 will be filed when there is sufficient data to assess and evaluate the provision of acupuncture treatment within the workers’ compensation setting. At that time, pilot program results will be considered in developing proposed rule language, medical coverage decisions and/or payment policy.
Please support your profession by supporting WEAMA!
In a democracy, “the squeaky wheel gets the grease.” There is power in numbers and your voice counts! WEAMA needs your support and involvement to advocate for your profession to either promote or stop regulations and bills that profoundly impact acupuncture and East Asian Medicine. We will be sending legislative alerts to our members and interested EAMPs in the state as the 2018 legislative session progresses. Please help WEAMA support and impact legislation and issues at state agencies impacting your profession.