Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/07/2012 01:30 PM Senate LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| SB146 | |
| SB175 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 146 | TELECONFERENCED | |
| *+ | SB 175 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 175-PRACTICE OF NATUROPATHY
2:18:41 PM
CHAIR EGAN announced SB 175 to be up for consideration.
2:18:45 PM
SENATOR LESIL MCGUIRE, sponsor of SB 175, said this measure
would correct an oversight in statute and regulation with
respect to the practice of naturopathic medicine in the state.
It would allow prescribing of naturopathic concentrates that are
extracts of a plant, tree, tree root, moss, fungus or other
natural substance that is not a controlled substance. It is part
of the existing regulation in 12 AAC that naturopathic
practitioners are specifically allowed to prescribe.
She said there are 43 naturopaths in the state: 16 in Anchorage,
2 in Eagle River, 2 in Palmer, 15 in Fairbanks, 1 in Seward, 2
in Kenai and Homer, 1 in Sitka and 4 in Juneau. They have been
practicing under a licensing statute that was put into law in
1987. Alaska is one of 15 states that specifically license
naturopathic doctors. Other states give a broader range of
prescriptive authority; 11 of them give prescriptive authority
for those substances that are not controlled and 4 of them
actually give naturopaths prescriptive authority for substances
that are controlled as well.
2:22:32 PM
Alaska is the one state that licenses naturopathic physicians
but doesn't allow them to prescribe controlled substances.
However, an exception was made in regulation and today they want
to put that regulation into statute for clarity.
SENATOR MCGUIRE said the issue came up when some naturopathic
physicians who had been prescribing these natural remedies for
their patients had their prescriptions suddenly denied at the
pharmacy. They were told it was at the direction of the
licensing board that stated the Alaska statute was unclear.
She said her opinion is that nothing in this bill expands the
authority of naturopathic physicians practicing in the state. In
fact, they will continue to do everything they are doing, but it
will be put into law. She said a proposed amendment by Senator
Giessel provides further clarity by adding dietetic remedy,
homeopathic remedy and hydrotherapy to the language.
SENATOR MCGUIRE said one example of a remedy is cayenne pepper
that is used as a sore throat remedy when mixed with alcohol.
The bottle is specifically labeled with requirements and a shelf
life, and says it's licensed by the FDA.
GENEVIEVE WOJTUSIK, staff to Senator McGuire, explained that
Section 1 describes what a naturopath is restricted from doing
and Section 2 amends AS 08.45.050 to allow a person who
practices naturopathy "to give, prescribe or recommend a
medicine that is derived from or is a concentrate of or is an
extract of a plant, tree, root, moss, fungus or other natural
substance if the medicine is not a controlled substance."
Section 3 provides for an immediate effective date.
2:27:01 PM
CHAIR EGAN objected for public testimony.
2:28:52 PM
At ease from 2:28 to 2:31 p.m.
2:31:15 PM
CHRISTINE NIEMI, representing herself, Douglas, Alaska, said her
primary choice for health care is a naturopathic doctor and that
is why she is testifying today in support of SB 175. She said
she understands that some therapies and natural herbal medicines
have been denied to some patients. It is wrong to deny a
profession the ability to provide services within the scope of
their practice, their medical education and training. It is also
wrong to deny services that are needed by their patients.
2:33:16 PM
C.W. JASPER, Alaska Association of Naturopathic Physicians, said
that there are actually 16 states that license naturopathic
doctors and of those, 11 give prescriptive authority and 5 allow
controlled substances. The profession is growing tremendously.
He said he has been asked why he came here if these other states
license naturopathic doctors and the reason is because he is a
fourth generation Alaskan. His great grandfather came over the
Chilkoot Pass in 1898 and his family held gold claims in Juneau.
He said he practices here because it is his home.
MR. JASPER said his ability to practice here is dependent on
legislative authority; and in 1986 a bill was passed with the
definition of the practice of naturopathy. The terminology was
picked by Fred Zharoff.
2:36:02 PM
He said herbal remedies are the heart and soul of what they do.
Cayenne pepper is a good example; taking it makes your nose run.
So, medically speaking it is an expectorant. People ask why you
can't just put ground-up pepper in capsules, but the problem is
that as soon as the pepper is ground it begins to deteriorate to
a point where it loses its potency. In prescription form cayenne
pepper is called capsicum and it is prepared according to a
national standard so people get a predictable result. When it's
prepared in the medical form, it has the legend on it. It's not
a prescription drug, but a prescription medicine that you need
authority from the state to use.
MR. JASPER explained that in 1986 Senator Zharoff tried using
the definition of "medicine" as proposed to prohibit naturopaths
from using any prescription medicine. It was very broad and
would include even capsicum tincture to which Mr. Jasper said he
couldn't agree. So they came up with this version, prohibiting
"prescription drugs," which they considered a much narrower
definition. The definition of "drug" is a chemical substance and
a chemical is something that is produced from a chemical
process. So, naturopaths agreed that they would be prohibited
from prescribing prescription drugs, but not prescription
medicines. The medicines on this list, such as capsicum and
valium, were the things they were being allowed to prescribe
because they weren't prescription drugs (they were prescription
medicines). The bill gave directions to the state to adopt
regulations that would define the natural medicines naturopaths
could use. So, they said okay and did it. Everybody agreed. So,
this is the regulation they adopted 18 years ago and it's part
of the administrative code now.
AS 08.45 says that "prescription drug" does not include a device
or herbal or homeopathic remedy. The state acknowledged their
understanding that herbal remedies would not be considered
prescription drugs in its statute. Then they defined "herbal
remedy" to be "medicines derived from or a concentrate or
extract of a plant, tree, root, moss, fungus or other natural
substances." Things were settled and Mr. Jasper said he took
these regulations around and showed them to Anchorage
pharmacists who understood and agreed.
2:41:59 PM
He said on the State of Alaska website to apply for a
naturopathic license has a statement reminding people that
statutes and regulations have the force of law. So even though
it's been clear to everybody and they have practiced under this
interpretation for 18 years, pharmacies are now saying they
can't give these medicines to naturopaths anymore. Their
solution is to ask the legislature to put this regulation [12
AAC 42.990] into statute.
2:44:00 PM
SENATOR PASKVAN asked the reason for the change by the licensing
board.
MR. JASPER said he couldn't answer that because he didn't know
the internal mechanics of why this is happening.
SENATOR PASKVAN said he wanted to know what happened if there
wasn't a problem for 18 years.
SENATOR MENARD asked how much of a concern there is about using
a syringe to administer the vitamin B12 or vitamin C.
MR. JASPER said he didn't know if that was a concern, but
naturopaths give B12 shots and they need a device to do that.
Syringes have a warning similar to the capsicum that says
federal law prohibits purchasing them without a prescription or
words to that effect; that is why the original regulation said
the device would not be barred from use by naturopaths.
2:46:03 PM
SENATOR MENARD asked if pharmacists are refusing to let them buy
the device as well.
MR. JASPER replied that he didn't know for sure but didn't think
it was an issue; it's mainly being deprived of access to
medicines.
SENATOR GIESSEL said that definition of naturopathy includes
more aspects than simply the herbal remedy; it includes
dietetics, homeopathic and hydrotherapies, and asked if he would
be open, if necessary, to include the definition of those other
modalities as well.
DR. JASPER said he wouldn't object to that and would leave it up
to the legislature to determine whether that was necessary.
SENATOR GIESSEL said if this was the only definition in statute
it may, by omission, fail to allow him to provide dietetic,
homeopathic and hydrotherapeutic modalities.
CHAIR EGAN invited Mr. Habegar to answer Senator Paskvan's
question and to provide additional information from the
department.
2:47:53 PM
DON HABEGAR, Director, Division of Corporations, Businesses and
Professional Licensing, Department of Commerce, Community and
Economic Development (DCCED), said the question was what the
division is doing differently and the answer is not a whole lot.
He explained there is no board for naturopathy; it is a
division-run licensing program. However, this issue has been
before them for quite some time and there was a recent change.
When the licensing law was being considered by the legislature
it was his division's understanding and many in the health care
profession that the language in statute AS 08.45.050 essentially
barred naturopaths for prescribing items that are normally
obtained through a pharmacy.
In 1996, a letter from then Director Reardon to a licensee
stated the division's position as follows:
If a product requires a prescription, then it is a
prescription drug and a naturopath may not give
prescribe or recommend it under AS 08.45.050.
Another quote:
The definition of prescription drug in regulation 12
AAC 42.990 is consistent with my interpretation of the
law.
Another quote:
It was not intended to allow naturopaths to prescribe
drugs refined and manufactured from plants. Instead,
it was recognition of naturopaths' use of herbs in
their basic natural form.
MR. HABEGAR said the division is not changing an interpretation
but is using a pathway that was set long ago. That same letter
of 1996 recognized the possible need to clarify regulation.
2:51:26 PM
SENATOR PASKVAN said he understood the 1996 letter, but the
question is if what was occurring in 2010 being prohibited in
2012.
MR. HABEGAR replied that the division is not changing any of its
practices. One of the things that has transpired is that in 1996
a licensee asked the division if he/she could prescribe certain
things. The letter he quoted was a response to that and the
answer was no.
SENATOR PASKVAN asked if what was allowed in practice in 2010
prohibited in 2012: yes or no.
MR. HABEGAR replied no.
SENATOR PASKVAN asked if naturopaths could obtain this from
pharmacies in 2010.
MR. HABEGAR answered from the division's perspective, no.
SENATOR PASKVAN asked if they had been obtaining these remedies
or concentrates from pharmacies for many years.
MR. HABEGAR said he couldn't answer that; it was before his time
with the division.
SENATOR PASKVAN asked what happened recently that caused him to
enter an order to pharmacies to cease what appears to be a long-
lasting practice.
MR. HABEGAR replied that the division brought an allegation
against a licensee for prescribing and that brought the issue to
a head. It clarified for the division what was happening in the
practice.
2:54:18 PM
SENATOR GIESSEL said Mr. Habegar read the definition of
"prescription drug," from a letter that cited 12 AAC 42.990, but
the regulation was not completely stated. The last half of the
definition says: "prescription drug does not include a device
or herbal or homeopathic remedy or dietetic substance in a form
that is not a controlled substance."
She referred back to other definitions in section .990; it
defines dietetics, nutritional therapies, substances, vitamins,
minerals et cetera. Number 3 says "herbal remedy" includes
"medicines derived from a concentrate or extract of a plant,
root, moss et cetera" and number 4 says "homeopathic remedy"
means "a remedy defined by the homeopathic pharmacopeia of the
United State, December 1993 version," and "hydrotherapy" means
"the use of water." It is pretty clear in this regulation that
prescription drug is not a device, herbal substance (what Mr.
Jasper just elucidated), a homeopathic remedy or dietetic
substance. Senator Giessel opined that Director Reardon
misapplied and misinterpreted those regulations and it's now
being applied in a much more restrictive way not in accordance
with what the regulations clearly say.
MR. HABEGAR replied that the Department of Law (DOL) has advised
that that Director Reardon's wasn't a bad interpretation and he
has continued down that pathway.
2:56:58 PM
SENATOR GIESSEL said because of that vague interpretation she
wanted to amend this bill to make it much more precise in terms
of including dietetic remedy, herbal remedy, homeopathic remedy
and hydrotherapy as in the purview of the naturopath in statute.
2:57:42 PM
SENATOR PASKVAN said he is troubled in looking at 12 AAC 42.990
that the history section indicates it was effective in 1994 and
amended in 2006, but the regulation was amended after the letter
was written in 1996 and the practice still continued. He didn't
know how the department could argue its position, because it
seems grossly different from the history of that regulation.
MR. HABEGAR responded that when positions turn over with
administrations there is often a great deal of trying to figure
out historical context. In that light and having been advised,
it seems to him that the division set a path that was consistent
with what it considered was happening. They also determined to
continue down that pathway.
CHAIR EGAN said he wanted a further explanation for the change,
from a doctor.
3:00:28 PM
SENATOR GIESSEL moved to adopt Amendment 1.
27-LS1230\M.4
Martin
AMENDMENT 1
OFFERED IN THE SENATE
By SENATOR GIESSEL
Page 1, line 13, through page 2, line 2:
Delete all material and insert:
"* Sec. 2. AS 08.45.050 is amended by adding new
subsections to read:
(b) Notwithstanding (a)(1)(A) of this section, a
person who practices naturopathy may give, prescribe,
or recommend in the practice a device or, in a form
that is not a controlled substance, an herbal or
homeopathic remedy, a dietetic remedy, or
hydrotherapy.
(c) In this section,
(1) "dietetic remedy" means nutritional
therapy, nutritional counseling, a nutritional
substance, vitamins, minerals, or supplements to
promote health and to diagnose, treat, or prevent
disease, illness, or conditions;
(2) "herbal remedy" means a substance
derived from or a concentrate or extract of a plant,
tree, root, moss, or fungus;
(3) "homeopathic remedy" means a remedy
defined in the current version of Homeopathic
Pharmacopoeia of the United States;
(4) "hydrotherapy" means the use of water
in all forms and temperatures to promote health and to
diagnose, treat, and prevent disease, illness, and
conditions."
CHAIR EGAN stopped the hearing saying the committee would
continue public testimony on SB 175 at the next meeting.