Legislature(2011 - 2012)BARNES 124
02/08/2012 03:15 PM House LABOR & COMMERCE
Audio | Topic |
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Start | |
HB235 | |
HB266 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+ | HB 235 | TELECONFERENCED | |
*+ | HB 266 | TELECONFERENCED | |
HB 266-PRACTICE OF NATUROPATHY 4:05:11 PM CHAIR OLSON announced that the final order of business would be HOUSE BILL NO. 266, "An Act relating to the practice of naturopathy; and providing for an effective date." 4:05:18 PM REPRESENTATIVE CATHY MUNOZ, Alaska State Legislature, introduced herself and thanked the committee for hearing this bill. She commended the committee staff, Konrad Jackson, for his excellent work. The committee took a brief at-ease due to teleconference technical issue. REPRESENTATIVE MUNOZ explained that HB 266 is designed to allow naturopathic doctors to continue to have the ability to provide natural medicines to those who rely on them for their wellbeing. She detailed the geographic location of the 43 Naturopaths (NDs) practicing in Alaska: 16 in Anchorage, 15 in Fairbanks, 2 in Eagle River, 2 in Palmer, 2 in the Kenai/Homer area, 1 in Seward, 4 in Juneau, and 1 in Sitka. She related that NDs have stated that the measure is needed because some pharmacies recently are refusing to supply natural and herbal medicines to NDs, as a result of instructions form the Division of Corporations, Business, and Professional Licensing (DCBPL). She explained that HB 266 would put in statute regulatory language that has been in effect for 18 years. She explained this would allow NDs to provide their patients medicines. She said this is taken directly taken from regulation. She read, "...medicines derived from or a concentrate or extract of a plant, tree, root, moss, fungus, or other natural substance if the medicine is not a controlled substance." This is based on state regulation 12 AAC 42.990 (3). This measure is not intended to expand the scope of practice of NDs, but will protect what NDs currently provide to patients as prescribed by law, thus giving Alaskans the power to choose what health modalities work best for them. She indicated that she has worked with the sponsor of the companion bill, Senator Lesil McGuire, Senator Cathy Giessel, the DCBPL, the Division of Public Health, the Alaska State Medical Association (ASMA), and the naturopathic doctors (NDs) to craft something that fulfills the sole purpose of this bill. The purpose of HB 266 is to keep the naturopathic scope of practice the way it has been in Alaska for nearly two decades. She stated that she continues to work with the previously mentioned groups and plans to bring forth an amendment consistent with the Senate version of the bill. She asked Doctor (Dr.) Jasper to present an overview. 4:09:45 PM CHAIR OLSON said he would accommodate one person who has traveled from Tenakee Springs, but the bill would not be opened up for public testimony today. REPRESENTATIVE MUNOZ emphasized that this bill does not contain any expansion in practice. She informed members that a bill the committee considered last year was a much broader bill. CHAIR OLSON related his understanding that the intent of HB 266 is not to broaden the scope of practice but to prevent the erosion of the practice of naturopathic medicine. 4:10:51 PM C.W. JASPER, Naturopath (ND), Alaska Association of Naturopathic Physicians (AANP), offered to testify in support of HB 266. He thanked members for the opportunity to hear this bill. He stated that he holds ND license number two in Alaska. He said he has practiced in Alaska for 20 years. He began a PowerPoint presentation titled, "The History of Naturopathic Prescribing in Alaska." He reported that 16 states license, the District of Columbia, and two territories license Naturopathic Doctors (NDs). He highlighted that varying scopes of ND practice exists depending on the state. He acknowledged that the professional scope of practice for NDs is decided by legislatures. He stated that 11 states give prescriptive authority in the statutes to NDs as opposed to Alaska, which has given prescriptive authority in regulation. He pointed out that five states grant authority in statute for NDs to prescribe controlled substances. He gave a brief personal history, including that he came home to Alaska in 1982, but he has roots in Alaska since his great-grandfather came over the Chilkoot Trail in 1898. His family has lived in Alaska since then, he said. He recalled questions by legislators at the time the enabling legislation was under consideration as to the reason he sought licensure in this state and why he would simply not practice in some other state. 4:13:10 PM DR. JASPER responded that he answered that he is an Alaskan. He recalled former Senator Binkley questioned him during deliberations over the enabling legislation. Senator Binkley related that he must have known that naturopaths did not have the authority to practice naturopathic medicine in Alaska. He then provided his educational background, noting once he completed his naturopathic schooling that he applied to the medical board to take the medical exam and obtain licensure in Alaska. He highlighted that the medical board denied his since the board did not recognize naturopathic schools. At the time his attorney received a letter from one of the assistant attorney generals - Bruce Botelho - who had indicated he could practice in Alaska without a license since the state did not offer him an opportunity to take the exam, plus the state did not have a licensing procedure in place. He emphasized that he came to Alaska in 1982 in good faith. He informed members that the situation in Alaska dramatically changed when litigation against an ND, Pat Pettijohn, had charged him with practicing medicine without a license. Mr. Pettijohn lost the case and subsequently closed his practice. Additionally, several NDs were informed by the state of the necessity to either pass a bill allowing naturopathy, or to stop practicing in Alaska. 4:15:02 PM DR. JASPER stated that naturopaths successfully passed a licensure bill in 1986. He described the difficulties the NDs encountered during the process, noting the late Senator Fred Zharoff had taken the draft language and modified the bill, which defined naturopathy to include the use of herbal remedies, along with a number of other therapies. Even so, the NDs agreed to the bill. He emphasized that herbal remedies are an important part of the NDs practice. He pointed out AS 08.45.200 defines naturopathy, which includes the use of herbal remedies [slide 3-4]. He showed pictures of cayenne peppers, commonly found in grocery stores [slide 5-6]. He related that eating cayenne peppers has the effect of making one's nose run since it is an expectorant. He showed a photo of a bottle of medicinal quality cayenne pepper, which is also an expectorant used to treat chronic sinus problems or asthma. The liquid form, capsicum tincture is used since the medicinal qualities dissipate with ground cayenne pepper [slide 9-10]. He elaborated on the advantages of the tincture, including that a longer shelf life, a date of expiration, and using it has provided predictable results. 4:18:28 PM DR. JASPER emphasized that capsicum tincture is a natural medicine that NDs are trained and qualified to use, but it is labeled as a prescription medicine. He explained that federal law prohibits dispensing without a prescription. DR. JASPER related that language under consideration in the enabling legislation would have narrowed the definition of naturopathy under AS 08.45.050 to prohibit prescribing prescription medicine, but it did not pass. He expressed alarm over the proposed definition since it would not have allowed NDs to prescribe capsicum tincture or any other similar herbal medicines. He related that the ultimate compromise was that the language narrowed the restriction to prescription drugs, but allowed NDs to prescribe medicine. He identified drug as a chemical substance used in treating disease or illness [slide 14]. 4:20:22 PM DR. JASPER stated that the NDs agreed to the changes since it allowed them to dispense natural prescription medicines. He pointed to a list titled, "Rx Medicines" noting that capsicum tincture is on the list, along with other natural medicines [slide 15]. DR. JASPER referred to a slide of what NDs can and cannot prescribe, labeled "Rx Medicines" and "Rx Drugs." He offered that the enabling legislation authorized the department to adopt regulations under AS 08.45.100. He related that the department adopted 12.AAC 42.990, including a definition of prescription drug, which he read: "prescription drug" does not include a device or herbal or homeopathic remedy or dietetic substance in a form that is not a controlled substance;" [slides 20-21]. DR. JASPER indicated the regulations under 12 AAC 42.990 (3), also included a definition for herbal remedy, which he read: "herbal remedy" includes medicines derived from or a concentrate or extract of a plant, tree, root, moss, fungus, or other natural substance; "herbal remedy" does not include a controlled substance;" [slide 22]. 4:22:30 PM DR. JASPER stressed that regulations have the force of law [slide 24]. He emphasized that NDs have relied on the regulations for 18 years and NDs and the state must abide by the law. DR. JASPER summarized that the NDs have had the ability to prescribe herbal remedies, but not prescription drugs. He said that about a year ago the pharmacies have quit supplying the NDs with prescription medicines and substances, which has resulted in many patients being cut off from medicines normally provided by their NDs [slide 27]. He related his understanding that the pharmacies have indicated they are complying with instructions from the State of Alaska. He assured members that he personally visited pharmacies 18 years ago, at the time the regulations were adopted, and they all agreed that NDs could prescribe herbal remedies and medicines. These same pharmacies are now advising NDs they can no longer supply medicines. 4:24:44 PM DR. JASPER reported some doctors will not write prescriptions for natural medicines they are not familiar with so some patients are deprived use of these medicines. DR. JASPER reported the NDs seek remedies to re-establish the longstanding ability to prescribe medicines and herbal remedies. He said the NDs seek to take the existing regulatory language under 12 AAC 42.990 and place it into statute. 4:25:35 PM REPRESENTATIVE SADDLER admitted confusion with respect to the definitions of medicine and drugs. He asked for definition of drugs. DR. JASPER answered that each statute has its own definitions so a uniform definition is lacking. He highlighted that part of the statutory restriction was to explicitly restrict NDs from prescribing controlled substances. He pointed out that water is included in some definitions of drug so the legislature left drug undefined in the naturopathic statutes, with the understanding that the state would develop regulations that pertain to the practice of naturopathy. Drug wasn't actually defined in the ND's statutes; however, an herbal remedy was not considered a drug under AS 08.45.050. 4:27:36 PM REPRESENTATIVE SADDLER asked for clarification on the federal definition of drug. DR. JASPER answered that the federal definition includes any substance used for the diagnosis, treatment, or mitigation of disease or illness in human and animals, so injectable water is considered a drug under federal law. He related that intravenous therapy (IV) bags contain the federal legend. Thus even water becomes a drug in some instances because it is intended for diagnosis or treatment of human disease, illness, or condition. He indicated that federal definition is mirrored in the statutes. He acknowledged the legislature barred NDs from prescribing controlled substances; however, the legislature did not use the definition of drug since doing so would restrict use of medicines. 4:29:06 PM REPRESENTATIVE JOHNSON inquired as to the category of penicillin since it is derived from fungi. He questioned whether an herbal remedy would include penicillin as defined by 12 AAC 42.990. DR. JASPER said he has not written a prescription for penicillin in his 20 years of practice since it is not germane to his practice. He was unsure whether any NDs have ever written a prescription for penicillin, but he offered his belief that under the regulation they technically had the right to do so. 4:30:33 PM REPRESENTATIVE JOHNSON questioned whether prescribing penicillin is germane to his practice. DR. JASPER offered that the NDs should be viewed as a whole and not be based solely on his practice. 4:31:15 PM REPRESENTATIVE JOHNSON asked whether NDs track what prescriptions by list. DR. JASPER answered no. 4:31:33 PM REPRESENTATIVE JOHNSON asked whether it would be possible to obtain a list of drugs prescribed by the 43 naturopathic doctors in the last year. DR. JASPER answered that he did not have a list. REPRESENTATIVE JOHNSON suggested that a list of what NDs currently prescribe would provide a baseline for the committee. 4:32:17 PM CHAIR OLSON suggested that the committee work up a list of questions for the sponsor to answer. He referred to capsicum as a substance that his grandmother used. He inquired as to whether the restriction for capsicum is due to the medium since it is 180-proof alcohol. DR. JASPER related other medicines can be purchased at health food stores that contain alcohol. He concluded that the alcohol is not the issue but it is the medicine being used and the intended use of the medicine, which ties into federal criteria. 4:33:40 PM DR. JASPER asked to clarify that the NDs' position on prescriptions. He explained that the regulations have allowed certain things to be prescribed, but if any NDs in Alaska are prescribing drugs outside the list, the NDs as a whole would not support that activity. He emphasized that the AANP supports NDs practicing in accordance with law. He had no knowledge of any prescriptions written outside of the regulations; however, if there were any written the AANP and NDs would not endorse that practice. 4:34:36 PM REPRESENTATIVE THOMPSON asked what drugs would be prohibited under HB 266. DR. JASPER answered that he pulled a list of the 50 most commonly prescribed drugs from the Internet. He and several colleagues reviewed the list to see if any of the drugs would be authorized under HB 266. He answered that only one drug would be authorized, a drug called Niaspan, which is a time-released B vitamin. He said people can buy time-released Niaspan without a prescription; however, the form that has been approved by the Federal Drug Administration (FDA), which is made according to their standards is a prescription drug labeled for the treatment of high cholesterol. He pointed out that this form of B vitamin has the legend. Typically, medical insurance will provide reimbursements for the prescription Niaspan. Additionally, capsicum tinctures and other herbal remedies would be included in the definition. REPRESENTATIVE JOHNSON offered his willingness to wait for the written questions and responses. 4:36:47 PM REPRESENTATIVE HOLMES admitted she was confused. She was unsure of whether the distinction of placing the current regulatory language in statutes would remedy the issues for the NDs. DR. JASPER agreed the issue is frustrating. He said that 18 years ago pharmacists recognized limited prescriptive authority, but now the same pharmacists insist the regulation does not apply. These pharmacists have advised that they use the statute for guidance on allowable prescriptions. He was unsure of how it could be that 18 years ago the regulations allowed NDs to write prescriptions for herbal medicines but now they cannot do so. The NDs are convinced that if the regulation is adopted in statute it will validate NDs prescriptions for herbal medicines. REPRESENTATIVE HOLMES said that everyone is puzzled. DR. JASPER agreed. 4:38:52 PM REPRESENTATIVE MILLER referred to slide 9, titled "Now it is a Prescription Medicine." He pointed out the label also reads poison. He concluded that the ND's regulations clearly do not authorize prescribing poison. 4:39:41 PM DR. JASPER answered that the word poison has different meanings depending on whether the language is state or federal language. He said that health care is regulated by the state, but medicines and drugs are regulated by federal law. He explained that labels are prepared according to the federal standards. A federal FDA standard of poison exists and it defines certain medicines as poisons. He offered that what that means is consuming a large amount of a drug labeled poison would not be good, but the state views a poison in terms of dosage. He referred to 12 AAC 42.990, which defines poison to mean a substance given in a manner that has a likelihood of causing physical injury or death. He asserted that capsicum tincture is not a poison when prescribed in appropriate doses; however anyone drinking a whole bottle would become quite sick, which is why the federal label lists it as a poison. 4:41:25 PM REPRESENTATIVE MILLER offered support for the concept of the bill, but he wanted to be sure safeguards exist. He inquired as to how to comport the prohibition of poison with dispensing medicine. DR. JASPER recalled in 1986, that the sponsors crafted a bill based on language derived from other jurisdictions, primarily from Washington, which unfortunately had the most archaic language. He pointed out at the time only six states licensed NDs. Very shortly after that, Washington revised its statutes with modern terminology. He agreed from the outset Alaska's terminology was dated. He offered his belief that the term "poison" was used prior to the adoption of FDA guidelines on poisons. He offered his belief no other states use that terminology. He further recalled that the Oregon Supreme Court upheld that a poison is only a poison when it is administered in a dose that has a likelihood of causing physical injury or death. He said that NDs administer doses that are safe, based on their training and education, concluding the definition of poison is dose-dependent. 4:44:45 PM REPRESENTATIVE MILLER pointed out that bleach does not have a safe dosage since it is poison. DR. JASPER agreed. 4:45:20 PM REPRESENTATIVE MILLER expressed concern and asked whether the language needs to be fixed. DR. JASPER answered no, that the definition is consistent since any amount of the bleach would be harmful. He explained by relating that many drugs have limits between safe doses and toxic doses, which is one reason that labeling drugs as poison has fallen out of vogue. He offered that a person who ingests too much water will drown, yet water is not considered a poison unless the dose is too high. He characterized this as consistent for all medicines. CHAIR OLSON offered his belief the questions being asked go beyond the expertise of anyone currently in the room. He offered to have the FDA participate in a future meeting to answer technical questions. He pointed out that none of the committee members are doctors. 4:48:11 PM GRACE DAVIS said she was born in 1926 and is 85 years old. In 1913, her parents settled in Tenakee noting it was a community half-way between Juneau and Sitka. She later went to Fairbanks to attend college. She highlighted that not many doctors were in Alaska at the time, and of those, many would not take new patients. Thus over time she ended up seeing three different NDs, including one in Montana and two in Juneau. She pointed out that two doctors have summer homes in Tenakee, which has been very helpful to residents. She appreciated the work on this bill. She takes medications but she acknowledged that has not ever been very sick. She thanked members. 4:53:44 PM CHAIR OLSON thanked Ms. Davis. He recognized that Representative Munoz has actively pursued this bill and he appreciated her efforts. He concluded by stating that a person could take a gallon of drinking water and if they poured it on a cruise ship it could cause the discharge to fail to meet federal drinking water standards. He acknowledged one of the biggest challenges is to mesh the laws. 4:56:20 PM REPRESENTATIVE JOHNSON asked what medicines she is taking that are prescribed by NDs, if not too personal a question. MS. DAVIS answered that she takes medicine for thyroid medication and atenolol. She said she goes to the wellness center for her prescriptions. REPRESENTATIVE MUNOZ, in response to a question on whether Ms. Davis's medicine was prescribed by MDs or NDs, answered that medical and naturopathic personnel work at the facility. [HB 266 was held over.]