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SUMMARY
The Office of the Auditor General has conducted a performance
audit and sunset review of the Board of Homeopathic Medical Examiners (Board)
pursuant to a May 22, 2006, resolution of the Joint Legislative Audit Committee.
This audit was conducted as part of the sunset review process prescribed in
Arizona Revised Statutes (A.R.S.) §41-2951 et seq.
The Board was organized in 1981 after certain physicians
regulated by the Arizona Medical Board (AMB) alleged that the the AMB was
antagonistic toward nontraditional medicine. In order to obtain a license,
applicants must have an active allopathic (MD) or osteopathic (DO) license from
Arizona or another U.S. state, district, or territory. However, after obtaining
a homeopathic license, the physician can allow the allopathic or osteopathic
license to lapse. As of May 2007, the Board had 104 licensed homeopathic
physicians; 11 of these had active Arizona DO licenses, 44 had active Arizona MD
licenses, and 21 practice under their MD(H) license without an Arizona MD or DO
license. The remaining 28 homeopathic physicians reside out of state.
Homeopathy is traditionally a system of medicine that seeks
to stimulate the body’s own healing response when health problems develop. It
was developed by Samuel Hahnemann in Germany in the late 1700s. In 1810, he
published the Organon of Medicine, which describes the homeopathic philosophy
and practice. Homeopathic medicine is holistic. Homeopathic physicians treat the
body as an integrated whole and view symptoms as attempts by the body to heal
itself. Therefore, homeopathic drugs administered in microdosages stimulate the
symptoms of a disease and help the body to heal. However, in Arizona the
statutory definition of homeopathy encompasses numerous other therapies,
including:
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Acupuncture—The diagnosis and treatment of
ailments using needles, heat, or physical and electromagnetic impulses or
currents.
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Chelation therapy—The use of a synthetic solution
injected into the body where it binds with metals and is excreted through
the kidneys.
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Homeopathy—A system of medicine that treats
symptoms in accordance with the principle that a substance that produces
symptoms in a healthy person will cure those symptoms in a sick person.
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Minor surgery—Surgical procedures performed in an
outpatient setting, including repairing injuries to the skin or mucous
membranes and using topical, local, or regional anesthetics.
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Neuromuscular integration—The use of manual
methods, physical agents, and physical medicine procedures and devices to
normalize body structure.
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Nutrition—The recommendation of therapeutic or
preventive dietary measures, food factor concentrates, fasting and cleansing
regimens, and the rebalancing of digestive system function.
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Orthomolecular therapy—The use of an optimum
concentration of vitamins, minerals, and other substances normally present
in the human body.
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Pharmaceutical medicine—The use of
prescription-only and nonprescription pharmaceuticals, as well as botanical,
biological, or mineral medicines.
Legislature should consider best regulation
method (see pages 13 through 25)
The Legislature should consider whether there is a need to
continue the Board. Both board members and supporters continue to support the
Board’s existence. Some board members argue that the Board’s presence increases
access to care and continuity of care because patients can see one physician for
all of their care rather than several different practitioners. Homeopathic
treatments are available from practitioners other than homeopathic physicians,
such as naturopaths. However, some board members assert that homeopathic
physicians have a greater depth of medical knowledge and therefore a better
understanding of how to treat disease or dysfunction. Board supporters also
believe that the AMB and the Osteopathic Board are still intolerant of
homeopathic physicians. In fact, at the January 2007 board meeting, several
patients of homeopathic physicians reported that the Board was critical to
ensuring they could continue to obtain their healthcare of choice. Although
allopathic and osteopathic physicians are not restricted from practicing any of
the therapies that the Homeopathic Board regulates, the use of chelation therapy
is more strictly limited by the AMB and is not embraced by the Osteopathic Board
(although some procedures may be within its standard of care). Furthermore, the
Osteopathic Board reports that it considers orthomolecular therapy to be an
experimental treatment and would expect any physician using the therapy to
comply with statutory requirements for experimental therapies, including
informed patient consent, periodic analysis of results, and peer review. These
regulations are not required for homeopathic physicians to practice
orthomolecular therapy.
Although the Board was created to address perceived
intolerance for nontraditional care, nontraditional medicine is more accepted
than it was in the 1980s. According to the Centers for Disease Control and
Prevention, National Center for Health Statistics, in 2002, 36 percent of adults
reported using nontraditional medicine. In addition, during the 2002-2003
academic year, 98 out of 126 medical schools in the United States included
nontraditional medicine as a topic in at least one required course. Further,
allopathic and osteopathic physicians in Arizona are not statutorily restricted
from practicing the therapies within the Board’s purview. In addition,
naturopathic physicians can practice the same or similar therapies that
homeopathic physicians practice, and other licensed providers in the State
provide many of the therapies as well. For example, naturopathic physicians can
practice acupuncture, chelation therapy, homeopathy, nutrition, orthomolecular
therapy, pharmaceutical medicine, and minor surgery. Finally, a separate board
is not a common approach nation-wide to regulating nontraditional medicine.
Arizona is one of only three states with a separate board for homeopathy.
Auditors identified at least 14 states that have statutes to address allopathic
and osteopathic physicians’ practice of nontraditional medicine. These statutes
include: specifying that using nontraditional methods is not unprofessional
conduct, prohibiting boards from denying a license to an applicant because the
physician practices nontraditional medicine, requiring oral or written informed
patient consent when physicians provide nontraditional care, and requiring at
least one of its board members to be a physician who practices nontraditional
medicine. If the Legislature chooses to sunset the Board, it would need to
determine how to address the issue of those homeopathic physicians left without
a license to practice. For example, the Legislature could require them to obtain
either an allopathic or osteopathic license to continue to practice or allow
them to be grandfathered in to the respective board that previously licensed
them if their licenses are or were in good standing. The Legislature would also
need to address the Board’s responsibility for registering homeopathic medical
assistants. Options include permitting homeopathic medical assistants to
continue as such without requiring the training prescribed by rule for
allopathic and osteopathic medical assistants, authorizing the AMB or the
Osteopathic Board to set up a registration system for such assistants as
currently exists for the Homeopathic Board, or taking no action, which would
require homeopathic medical assistants to qualify under the existing AMB or
Osteopathic Board Rules.
If the Legislature chooses to continue the Board, the
Legislature and the Board need to take steps to address three regulatory issues
that potentially limit the protection provided to the public. First, the Board
appears to allow conduct that the other two Arizona physician regulatory boards
have determined is unsafe or unprofessional. For example, the Board has allowed
two physicians to continue to practice although either the AMB or the
Osteopathic Board has revoked their licenses. As a result, the Board’s actions
have contradicted the other board’s actions. The Legislature should consider
forming a study committee comprising, at a minimum, members of the Board, the
AMB, and the Osteopathic Board to determine the best way to help ensure that one
board's actions do not negate or mitigate another board's actions, including any
recommended statutory changes. Second, members of the public may be confused by
a physician holding both a homeopathic and an allopathic or osteopathic license.
As a result, they may not know whether the treatment being provided is
traditional or nontraditional. To ensure that patients know they are receiving
nontraditional treatment, the Legislature should consider amending board
statutes to require homeopathic physicians to obtain informed consent, and the
Board should determine what information should be included in a written informed
patient consent and develop a policy to require it. Finally, the Board’s name
does not reflect the scope of therapies Arizona-licensed homeopathic physicians
can practice. Homeopathy is only one of many therapies the Board’s statutes
authorize; therefore, the Board should identify a more appropriate name and
request that the Legislature change the Board’s name to more accurately reflect
the therapies authorized in its statutes.
Board needs to improve its complaint-handling
practices (see pages 27 through 33)
If the Board is continued, it needs to improve its
complaint-handling process. The Auditor General’s Office has found that health
regulatory board complaints should be resolved in 180 days or fewer, but more
than one-third of the Board’s 41 complaints received in fiscal years 2004
through 2006 were open longer than 180 days. Further, all 6 complaints open in
November 2006 had been open longer than 180 days. Several factors contribute to
the Board’s delay in resolving complaints, including waiting for another board
to agree that the Board has jurisdiction before beginning an investigation,
holding investigational interviews in board meetings rather than having a board
member or a designee conduct the interview outside of the board meeting, and
lacking time frames for the complaint process as well as a system to monitor
complaint progress.
In addition, when the Board considers complaints, it
sometimes fails to decide whether or not each allegation was substantiated as
part of the adjudication. For example, in considering a complaint involving
misdiagnosing a patient’s condition, the Board discussed that the therapy used
was allowed under the Board’s statutes, but it did not address the allegation
that the physician had inappropriately diagnosed the patient’s condition.
Licensure does not ensure competency in
authorized therapies (see pages 35 through 39)
If the Board is continued, the Legislature and the Board
should take steps to ensure that its licensees are sufficiently qualified to
practice all the therapies authorized by statute. A.R.S. §32-2901(22) identifies
several therapies that homeopathic physicians can practice, but the Board lacks
clear statutory authority to ensure that its licensees are qualified to practice
those therapies. The Board does not limit a physician’s practice to only those
therapies in which the applicant is educated, apparently because the Board’s
statutes do not specifically allow such a limitation. To ensure that homeopathic
physicians are sufficiently trained to practice, the Legislature should consider
amending A.R.S. §32-2912 to limit a physician’s practice to the therapies he or
she is educated in.
In addition, the Board has not developed exams that ensure
its licensees have adequate knowledge to practice all therapies. First, the
Board’s written exam covers only homeopathy and none of the other therapies
allowed by the Board’s statutes. Second, although the Board has an oral exam, it
does not require the applicant to discuss all authorized therapies during the
oral exam. In addition, the oral exam is not considered a confidential record by
statute and is conducted during the regular session of board meetings. The Board
needs to take steps to develop and implement comprehensive written and oral
exams that cover all therapies the homeopathic license authorizes. In addition,
the Board should seek a statutory change to classify the oral exam as a
confidential record.
Finally, unlike other Arizona health regulatory boards, the
Board does not require homeopathic physicians to obtain continuing education to
renew their license. During the course of the audit, the Board began to develop
continuing education requirements. To ensure homeopathic licensees are educated
in their field’s most recent developments, the Legislature should consider
amending board statutes to require continuing education for its licensees.
Other pertinent information (see pages 41 through 42)
The Board’s statutes require that a physician be of good
moral character; have a professional record that indicates that a license to
practice medicine has not been refused, revoked, suspended, or restricted in any
way; and have a professional record that indicates that the applicant has not
engaged in any conduct that would constitute grounds for disciplinary action
against the homeopathic license. However, statute also allows the Board to
determine whether the conduct has been corrected, monitored, and resolved to its
satisfaction. Between fiscal years 2004 and 2006, the Board considered 23
applications for homeopathic physicians. Of those, 2 were from applicants who
had a felony conviction, and the Board licensed both of the applicants after
discussing their cases in public board meetings. Some Arizona health regulatory
boards have similar language in their statutes; auditors identified only two
boards, the Board of Nursing and the Board of Massage Therapy, that bar felons
from applying for a license until 5 years after conviction or after they have
completed their sentences.
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