Legislative Update

Here’s an update, and the background info on the recent battle to keep New York State from passing legislation that would affect the freedom of N.Y. Yoga teachers to ply thier trade.
The “URGENT UPDATE” on the Health Freedom New York website clearly refers to our efforts to keep Yoga out of this legislative process. I definitely do not support the bill they’re sponsoring, although the one I’ve been fighting is far worse.

HFNY’s website refers to thier “conditional support of the New York Freedom of Access to Natural and Complementary Practices bill, S3334-A and A04404 b, which was amended to remove the registration component, to exclude yoga and reiki and was published on June 20th and June 21st, 2005 respectively.”

BACKGROUND

On April 20, 2005, I was forwarded a message that bagan like this:

From Health Freedom NY:

There is a bill currently in the Senate and Assembly that is being presented as a bill that would open access to all the alternative practitioners in NYS. In actuality it mandates registration for all of these practitioners and unleashes unlimited regulatory potential by the Secretary of State over 40+ modalities. We have a deadline for contacting the Senator and Assemblyman that are sponsoring this Mandatory Registration Bill for alternative practitioners to stop this bill.

I researched the bill in question, and posted this on April 25:

This posting is critical specifically for New York State resident Yoga teachers, and generally for Yoga teachers everywhere. I urge you to read it carefully.

I received this information a few days ago, and have been researching it. There is New York State legislation pending that must be defeated if the profession of Yoga teaching is to survive as an independent field. For those of you who have been following e-Sutra for a while, my views on the destructive effects of government interference in yoga teaching will not be a surprise….

I went on to comment on the ideas being presented by Health Freedom New York. My comments are inserted below:

Welcome to the Web page of Health Freedom New York!

Our mission is to ensure the right of every citizen of New York State to utilize any healing modality of their choice that they determine beneficial for their health.

What are the problems?

• Consumers don’t have adequate access to the wide diversity of healing modalities available in the state of New York.

((LK: I don’t understand this statement. What is preventing consumers from having adequate access to healing modalities? This statement is presented as self-evident absolute, with no supporting evidence. I suspect I know what they really mean, but they’re not saying it outright — see my comments below. ))

• Although title eight of education law exists to regulate high risk invasive modalities, practitioners of the low risk non invasive healing modalities technically risk fines and prosecution.

((LK: Again, this statement lacks any supporting evidence. What “low-risk” modalities are being referred to? The actual Title VIII regulations can be found at:
http://www.op.nysed.gov/title8.htm
I don’t see anything in the professional descriptions that even come close to covering yoga teaching, but if yoga ever does come under Title VIII, it would be the death of freedom in our field. ))

• The Policing power of the state has been increased, raising the risk to practitioners.

((LK: How has it been increased? ))

• The proposed mandatory registration bill – S3334/A4404 -has sought to address these problems with legislation requiring mandatory registration and proposed unlimited regulatory potential. We feel these therapies do not warrant registration or regulation as there is no historical precedent of imminent danger to the public.

((LK: I would like to see the word “feel” banned from these types of discussions. What makes my feelings more valid than yours? Let’s deal in facts, please. ))

• Naturopathic bills – Similarly, there are several naturopathic bills that seek to define low risk non invasive therapies as being akin to modern medicine with its legend drugs surgery invasive therapies and radiation; and therefore these bills seek to create a level of regulation that would require a license.

Solutions

Craft legislation that:

((LK: We should be taking a strong stand for NO legislation, as there is no actual problem that needs to be fixed, other than the natural tendency of regulators to regulate, and legislators to legislate. We should not be trying to play their game with them.))

• Acknowledges the history of safe use of these non invasive low risk modalities.

• Remove the threat of prosecution on technical violation of title eight without unwarranted regulation that restricts access and implies danger.

• Increases consumer access to these modalities.

((LK: Again, regulation of any kind decreases consumer access. It only results in access to the practitioners who play by the involuntary rules laid out by the state. ))

Goals

• To allow consumers to have access to the wide diversity of healing modalities available in New York state

((LK: This is already the case. The right to choose among many alternatives is just that: A RIGHT — it is not a privilege dispensed by the state, that we need to go begging for.))

• To foster the growth of these modalities through increased access and consumer education.

((LK: You want to really know what “increased access” means in this context? It can only mean insurance reimbursement. I have long argued that insurance reimbursement is de facto government regulation. If anyone truly values their freedom to teach yoga, they should fight the move towards insurance reimbursement. For more support of this argument, see the e-Sutra threads I’m forwarding shortly.))

• To educate legislators and policy makers as to the demand for these low risk and non invasive healing modalities

((LK: I’ll submit that the regulators already know of the demand for these services — otherwise why would they be bothering to propose legislation to regulate it? ))

———————–

Next, I posted a follow-up to the above post the next day:

First, I need to state publicly that the opinions and information I offer on e-Sutra are exclusively my own, and not in any way connected to the charter, purpose or activities of The Breathing Project, Inc., a New York State 501(c)(3) tax-exempt educational corporation.

Now, here’s some more vital information regarding the proposed legislation in New York State to regulate “Complimentary Practices.” It is clear that this could well include yoga therapy.

At first glance, it may seem wonderful that the State is acknowledging the value of these practices by recognizing that people are seeking them out in greater numbers every year. BUT, on closer reading, it becomes clear that they are simply opening the door to an unlimited regulatory power over every aspect of health care, from Yoga Teaching, to Yoga Therapy, to Reiki, to Feldenkreis, to Pilates, to, well, you name it….

For example: “…No person shall engage in natural and complementary practices unless such person is registered as a natural and complementary practitioner in accordance with the provisions of this article…”

Simply stated, what this means is that most of the current activity in the natural healing and therapeutic yoga world will be rendered illegal by this legislation, unless you pay your $150.00 dollar registration fee, and agree to play by their rules.

What’s the big deal, you may ask? Well, read on:
“Such person shall file with the secretary an application to be registered in such form and detail as the secretary shall prescribe setting forth:
(a) the name and address of the applicant;
(b) the date of birth of the applicant;
(c) the name, business address or addresses at which the applicant will conduct business or be employed;
(d) the education, training, experience and/or other qualifications of the applicant;
(e) if the applicant is licensed or certified pursuant to title eight of the education law, an attestation that he or she has not had a license or certification suspended or revoked; and
(f) any further information deemed reasonably necessary to accomplish the purposes of this article.

In other words, they want to know exactly who you are, where to find you, what your training is, and via (f), any other information that they may, in the future, deem necessary to tighten their regulatory grip on your activities. Make no mistake about it — this bill gives the State unlimited, arbitrary carte blanche over you, your business, and your freedom. I would challenge anyone to explain to me how paying the State’s fee, and playing by their rules is any different from paying protection money to the mob to keep them from trashing your business. If I threaten to beat the crap out of you unless you pay me $150.00, what is your money buying? The removal of a threat is not a value.

Another clever tidbit from 491-3. is this:
“Natural and complementary practices” means care and services that have not been proven to be deleterious….”
Sounds innocuous? Not really. If some proof is offered that your practice is deleterious, it will be considered illegal to practice it. If it is not deleterious, it will be illegal to practice it without registering with the State. Either way, they’ve got you.

It’s important to remember how capricious and arbitrary the government’s definition of “deleterious” can be. Remember when you could buy Ephedra (Ma Huang) at the health food store? Well, it was “proven” to be deleterious, even though many more people die every year from abusing approved over-the-counter drugs than the 100 “possible” deaths linked to Ephedra abuse.

If immediate and overwhelming objection to this legislation does not reach Albany soon, it is clear to me that this law will pass. The sad irony is that the people supporting it will think they’ve done a great favor to the alternative and complimentary health fields by welcoming them into the fold of mainstream healthcare regulation.

So, if you think mainstream healthcare delivery in this country is doing just fine, and you want to be part of it, do nothing. If you want to keep alternative health care truly alternative, then don’t waste any time flooding Albany with your objections.

Thanks for your attention.

Leslie

Here is a link to a site where you can read the bill for yourself:
NY Natural and Complimentary Practices Project

————————————————

Well, my muckraking in the Yoga community got the attention of the Homeopaths who were sponsoring the legislation, and they felt the need to directly address the yoga community to counter my objections:

Posted to e-Sutra on May 7th, 2005

The following message was sent out to yoga teachers in NY by The New York Natural and Complementary Practices Project (they didn’t send it to me, but it was forwarded to me by several teachers). I don’t know who the actual author of the letter is, but it is signed by their entire board. I have looked up these people on the web and attached information about them below.

I am posting the NYNCPP letter with my comments interspersed.

May 3, 2005

Dear Member of the NYS Yoga Community,

RE: FREEDOM OF ACCESS TO NATURAL AND COMPLEMENTARY PRACTICES S3334/A4404

On behalf of thousands of supporters of health freedom in NY, we the Board of Directors of the New York Natural & Complementary Care Project (NYNCPP) welcome this opportunity to familiarize you with NY’s health freedom legislation, especially as it pertains to yoga teachers.

((LK: I would very much like to know who these thousands of people are. Do you you have a petition, or some sort of membership list? What exactly is your constituency? ))

We acknowledge the campaign being waged against S3334/A4404 in the state yoga community this week and hope that this will help put the information from Health Freedom NY in perspective. If you have not heard of this campaign, we hope this message will still serve to educate you on this important NY legislation. We encourage and welcome your questions and comments.

((LK: I’m impressed that my activities — writing 4 e-mails to my list, and corresponding with Kathy Lukas — have risen to the level of a “campaign” in just a few short days. ))

NYNCPP – SEEKING TO BROADEN AND PROTECT ALL HOLISTIC ARTS. NY’s freedom of access bill [see Law at www.nyncpp.org] will broaden and protect the ability of New Yorkers and those that come to NY for natural and complementary care to access information about a broad array of holistic arts.

To understand the need for this bill, one must understand that access to information about natural care requires access to practitioners and that there are two classes of unlicensed holistic practitioners working in NY today. The first includes practitioners of yoga, Reiki, and those arts that are generally seen as needing no regulation or protection. The second group includes practitioners of homeopathy, polarity, reflexology, and other arts that have grown substantially over the past 15 years. This group is vulnerable to being viewed as practicing medicine or massage without a license, criminal acts in NY.

S3334/A4404 will recognize and protect our rights of access to the second group. It is a simple bill with simple solutions for complex problems, and when passed it will be a law that yoga practitioners will never need.

((LK: This is the crux of the problem right here. You are presenting a self-contradictory bait-and-switch.

Here’s the contradiction:
If consumers’ access to information about practitioners of Homeopathy, Polarity, Reflexology, and other arts is so limited that they need your legislation to protect it, then how have these arts managed to grow so substantially over the past 15 years?

Another contradiction:
If information has truly been limited, it needs exposure in the free market of healthcare, not protection by the state.

There has been, in fact, no legal limitation on consumers’ access to the practitioners at all. What has been limited is the ability of some practitioners to get medically licensed by New York State, so they can do business without fear of prosecution.

Here’s the bait-and-switch:
You are creating the illusion of a non-existent CONSUMER problem, and proposing PRACTITIONER LICENSING legislation as a solution.

Am I in favor of the State using its police power to suppress these practices by arresting unlicensed practitioners in the absence of “a claim of fraud, misconduct, harm, or the threat of harm?” Absolutely not. If holistic healthcare providers want to practice freely without this threat, they could band together into professional certifying bodies that demonstrate high standards of education and ethics among their own members. If they wish, these bodies could then go to the state and seek licensing recognition, just as Massage Therapists and Acupuncturists have done. Or, they can lobby to avoid State regulation, as Yoga teachers have done.

Why haven’t the venerable professions of Homeopathy, Naturopathy and Reflexology sought state licensing? Is it possible that they couldn’t demonstrate the medical benefits of these practices? Is this why you chose to word the legislation: “Natural and complementary practices means care and services that have not been proven to be deleterious.” This clearly shifts the burden of proof from you (to prove efficacy) to the State (to prove harm).

Your legislation is nothing more than an attempt to circumvent the standard medical licensing process by creating a single category of non-medical, “non-deleterious” licensed practitioners who will be subject to State controls.

Above, you describe “two classes of unlicensed holistic practitioners working in NY today. The first includes practitioners of yoga, Reiki, and those arts that are generally seen as needing no regulation or protection. The second group includes practitioners of homeopathy, polarity, reflexology, and other arts.”

“Generally seen” by whom? This is very vague language, and not a distinction that appears in any law or policy that I’m aware of. More importantly, this distinction does not appear in the law you are proposing. This is where your statements are objectively at odds with the language of the ASSEMBLY BILL #A4404 and SENATE BILL #S3334.

The only distinction that’s made between groups of healing practitioners in the language of your law is between those who are currently licensed, and those who practice “Natural and complementary…care and services that have not been proven to be deleterious.” Regarding the distinction between the “two classes” of practitioners you describe, where is it in your proposed law, or in any law, rule, regulation or guideline currently on the books in NY State? If you can show me where this distinction exists in any of the aforementioned places, I’ll gladly withdraw this objection. ))

BROAD LEGISLATIVE LANGUAGE TO ESTABLISH BETTER PUBLIC POLICY IN NY. You may also have heard this week that this bill could affect your rights to work because its language is so broad as to require yoga, Reiki, and other practices to register their businesses with the state and employ consumer protection devices required by the bill. This is a misreading of the bill with no legislative or historical basis to justify it.

((LK: My position is based on a clear reading of the actual text of the actual bill, and I invite you to demonstrate otherwise via reference to the wording of your own bill. ))

For evidence that no risk accrues to yoga or Reiki practitioners under health freedom legislation, we ask that you contact your colleagues in MN, RI, and CA where legislation like NY’s bill has been passed in the past four years. In none of these states has health freedom law changed the conduct of yoga or the state’s relationship to yoga.

((LK: If the wording of the law in those states is the same as the proposed NYS law, then it’s just a matter of time before those states begin to regulate yoga via the power given to them by the above-referenced laws. Just wait for some highly visible case involving a severe yoga injury caused by some under qualified instructor to hit the media, and you’ll see how quickly it will happen.

****Can you state with absolute certainty that, if the State chooses to, it would be UNABLE to regulate Yoga using the power given to it by your law? This is the real question you need to answer.****

Bolstering your argument with the fact that this has not yet happened in other states is like putting a loaded gun into the hands of a child and saying, “Look, see! It’s safe because he hasn’t killed anyone yet!” ))

In summary, if your practice is not vulnerable to being viewed as needing a license today, it will not be affected by health freedom law when it passes.

((LK: Viewed by whom? There are already people who think Yoga and Yoga Therapy should be licensed professions. I should know — I’ve been fighting against their ideas for the past 6 years on my list, e-Sutra.))

If your practice is vulnerable, perhaps because of what you say or would like to say in your advertising or to your clients, the health freedom law will be there for your use, should you decide to employ it.

((LK: You really don’t understand the nature of licensing if you can make this statement. If your profession comes under the purview of this law, it will not be a matter of “deciding to employ it.” It will be ILLEGAL for you to practice unless you register! I refer you to the language of your own bill:
“No person shall engage in natural and complementary practices unless such person is registered as a natural and complementary practitioner in accordance with the provisions of this article”

When medical licensing was enacted for M.D.’s they had no choice about whether they decided to use it, and if your law is enacted neither will we. ))

NY’s health freedom law will be available for individuals who need to use it, but it will not require use by all members of any profession, least of all professions that enjoy full freedom of practice today.

((LK: Again, this distinction does not exist in the wording of the bill. ))

LISTING COVERED PRACTICES. You were perhaps told this week that listing practices covered in S3334/A4404 in the bill itself would be useful for avoiding a risk of yoga teachers being captured under the bill. Because the arts and sciences of Holism are alive and growing at an unprecedented rate, we do not want to leave New Yorkers in the position of having to amend state law every time a new natural and complementary practice evolves. So NYNCPP is aiming to establish state policy regarding natural care and have that policy be there for all holistic practices for a long time. That’s what our bill does and what all health freedom legislation does. And the same holds true whether practices are listed in the legislation or not.

((LK: This is utter nonsense, and it contradicts everything you’ve said about the law not affecting Yoga. What the above statement suggests is that thanks to your far-reaching legislation, no healing profession, ever again, in NY State, will have to go through the process of State approval for their practice — no matter how new, unproven, whacky, or undocumented it may be. All a newly-minted “healer” would have to do is say, “Hey, you’ve not proven my modality to be deleterious, so here’s my $150.00 fee — now give me my license to hang on the wall, and some initials to put after my name.” ** This is NOT how to protect consumers! ** ))

Many holistic practices are listed in the laws in MN and RI, with the language, “…including but not limited to…”, allowing for the law to protect future practices as they arise and need protection (and to capture yoga if there were such a risk). Practices are not listed in the CA law. Under both models (list and no list), in the four years since the first health freedom law took effect in MN, no profession has been caught up in a web of overregulation, and there is no evidence that one will. Holistic practices have been protected in ID since 1977, but yoga teachers have not been swept up in over regulation there either.

((LK: In the present political climate, my position is that it’s only a matter of time before Yoga is captured by the existing laws in the states you mentioned, if those laws give them the power to regulate anything they want to at any time, without the need for any additional legislation. Your NY bill targets Yoga by default, but would allow the State to target it at will.))

In short, if you are legal today, you will be legal after passage of this bill. Legal for purposes of this discussion means that as a practical matter you are practicing as you wish and you can advertise and run schools and other institutions in NY. Practitioners in the class of practitioners that health freedom legislation will protect cannot do any of these things without significant risks to their freedom and livelihoods.

((LK: Then let them go through the same process that Massage and Acupuncture went through in order to become legal. All your protestations to the contrary notwithstanding, this really boils down to Naturopaths, Homeopaths and Reflexologists seeking to establish for themselves a less demanding form of medical licensing; and in the process, dragging everyone else into State controlled licensure with them. No thank you. ))

We ask for your help in helping NYNCPP to grow the natural arts in NY by changing the law as it pertains to practices that do not as yet enjoy the full warmth of freedom.

You can learn more about our bill and NYNCPP at www.nyncpp.org, especially under Mission and FAQs. From any page on the site, you can register your support for your right to access the natural and complementary care of your choice. We hope you will join us in the last months of our six year campaign to legitimize and protect natural and complementary care in NY. If you have any questions, you may contact us at info@nyncpp.org or if you reply here, we can add you to an e-list of persons that are interested in NY’s health freedom legislation and that receives copies of regular e-mails to our supporters in NY.

Lastly, we want you to know that Health Freedom NY, the “organization” behind this week’s campaign to discredit health freedom, is a trio of homeopaths that has been working for a year to defeat support of NY’s bill in the homeopathic community. Their opinions and lay reading of law has been found so wanting by homeopaths that HFNY has been driven to look outside of their own community for support. We are sorry that yoga teachers and others are the new target of HFNY’s campaign.

((LK: Nothing of the sort has occurred. I was e-mailed a notice about the legislation and their meeting, and forwarded it to my list. They are not behind this week’s campaign, I am. I profoundly disagree with the ideas of three women you mentioned, and I said as much on e-Sutra. I do, however resent the continued use of the term “lay reading” when it pertains to the questions raised by an ordinary citizen who reads the bill. It is written in plain English, and the concerns that were raised by my “lay reading” were confirmed by my attorney. Using “lay reading” to disqualify the opinion of anyone who disagrees with you is a condescending tactic.))

We are confident that most in your profession, after considering both sides of the questions presented by HFNY and others, will find the Freedom of Access bill a bill long overdue in NY and worthy of your support.

We wish you the best and hope to hear from you with your comments or questions. Please pass this on to other yoga practitioners.

The Board of Directors of NYNCPP

((LK: I have attempted to determine the identities of the board members of NYNCPP, and have indicated below my best guesses. I apologize for any errors in my research.))

Paul Van Blarcum, President (Acting Chair,Town Council, Town of Shandaken Planning Board – Phoenicia, NY)

Karen Crowe, Vice President (spokeswoman for the NYC Board of Education)

Marcy Meiller, Vice President (another Phoenicia resident)

David Cook, Secretary (Prince Street Reflexology, NYC)

Josephine Heck, Treasurer (Resident of Richmond Hill, NY)

Dr. Terry Bellman, President of the Board (DDS – General Dentist, NYC)

Dr. Carolyn Dean, Vice President of the Board (Dr. Carolyn Dean, MD ND – Author of “Death by Modern Medicine” )

Shelby Werwa (Video Producer)

Luke Bellman (The only Luke Bellman I could find appears to be a football player for Guilford College in Greensboro, NC)

———————-

To date, there has been no response of any kind that would indicate that any of the above-listed people have even read my rebuttal.

My dealings with the main spokesperson for the bill, Kathy Lukas, have shown her to be a complete knucklehead who doesn’t even read her e-mails before responding defensively to them. I’ve given up trying to penetrate her self-righteous fog of “good intentions,” and haven’t had any contact with the bill’s other sponsors since I posted my rebuttal.

The bottom line, as far as I can tell, is that the Homeopaths and Reflexologists who sponsored this bill want to be able to diagnose and treat disease without having to go through the trouble of creating traditional medical licensing for their professions; and they are willing to drag everyone else (including Yoga teachers) into State regulation in order to do so.

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