Can States Require Energy Healing Practitioners to be Licensed?
As the use of energy healing methods by the public has grown significantly, both the federal government and a number of states have steadily moved toward considering regulating energy healing practitioners. Currently, Massachusetts has referred House Bill #350 and Senate Bill #221, respectively, to the Consumer Protection & Professional Licensure Committee. These bills, if passed, would require energy healing practitioners to be licensed in Massachusetts in order to practice. Other states are also making rumblings about licensing energy healing practitioners or at the very least, requiring energy healing practitioners to be registered.
This article is meant to provide a basic understanding of the legal and regulatory system that governs professionals who offer health care services to the public, including energy healing practitioners. It’s also intended to provide an understanding of how energy healing methods fit into the current health care field.
It’s critical to know that under the Tenth Amendment to the U.S. Constitution, each state has the right to pass laws and regulations to protect the safety and welfare of its citizens. A primary method of safeguarding the health and well-being of citizens is to license professions to ensure that basic levels of education, competency, and skills are established and maintained. All fifty states have medical and psychology practice acts, as well as other types of practice acts including, social workers, chiropractors, and nurses. The underlying regulatory value for health care licensing laws is the safety, protection, and welfare of citizens.
Energy healing methods fall under the umbrella of Complementary and Alternative Medicine (CAM), which is defined as a consensus term for healing methods, techniques, processes, and systems that have historically fallen outside established, recognized Western medicine. CAM methods are considered complementary or alternative healing arts in the United States. CAM includes both licensed healing arts practitioners such as chiropractors and non-licensed alternative healing arts practitioners such as Therapeutic Touch practitioners. Therefore, CAM methods fall into two categories, those that are regulated by state licensing laws and those that are not regulated. Chiropractic medicine is regulated in all fifty states in that chiropractors must be licensed in order to practice. There are other CAM methods that are regulated in some states but not in other states. These states require nutritionists (i.e., registered dietitians), massage therapists, naturopathic physicians, and acupuncturists to be licensed in order to practice. There are a multitude of unregulated CAM methods, including Reiki, Quantum Touch, the Emotion Code/Body Code, EFT/Tapping, shamanism, etc. The only exception to these being unregulated practices is that some states, such as Tennessee, require energy healing practitioners that incorporate touch to be licensed as massage therapists.
Over the past 100 years, medical licensing statutes have been construed broadly by the legal system resulting in licensing boards and courts finding that just about any type of healing work is considered the practice of medicine. This finding has occurred if the practitioner is addressing physical issues with a client. For example, courts have historically affirmed convictions of “laying-on-of-hands” healers for unlawfully practicing medicine. Psychotherapy licensing statutes have also been construed broadly resulting in licensing boards and courts finding that just about any kind of emotional work is considered the practice of psychotherapy. Thus, the legal paradigm mirrors Biomedicine’s historical view that alternative practices, such as energy healing methods, are deviant, suspect, or “on the fringe.” Therefore, a non-licensed energy healing practitioner faces the risk of being charged with the crime of practicing a licensed profession such as medicine or psychotherapy without a license. While this may be considered unfair by some energy healing practitioners, they still must operate under the current legal and regulatory framework that governs health care providers.
Besides the safety and welfare issues regarding licensure, there is another catalyst pushing states towards requiring licensure. Some states are reporting that sex traffickers have established energy healing practices such as Reiki as fronts for illicit businesses. For example, the Massachusetts’s state attorney general’s office reported seeing countless cases of these illicit businesses. Health and law enforcement officials say traffickers are able to avoid detection by taking advantage of the loophole in Massachusetts’s Massage Practice Act that exempts bodyworkers (i.e., energy healing practitioners) from licensure which allows their practices to be unregulated. So besides protecting the health, safety and welfare of citizens, licensing unregulated energy healing practitioners can give law enforcement a means to crack down on sex traffickers.
Whether or not you feel licensing of energy healing practitioners is appropriate or needed, states do have the right to license practitioners, such as energy healing practitioners, who offer their health care services to the public.
HIPAA Compliance and Confidentiality Issues When Working with Clients Remotely
The purpose of this article is to provide energy healing practitioners with some basic information about Health Insurance Portability and Accountability Act (HIPAA) compliance and confidentiality issues when working with clients remotely. Because numerous energy healing modalities can be used via distance, many practitioners conduct client sessions by phone, Skype, Zoom or another electronic platform and may also communicate with clients through emails.
HIPAA is a Federal statute that was implemented by the U.S. Congress in 1996. It formalizes many of the pre-existing protections of medical information, which it refers to as Protected Health Information (PHI). This law addresses a variety of issues related to health care, specifically regarding the electronic exchange, privacy and security of health information. The HIPAA Privacy Rule sets standards with respect to the rights of individuals to their health information, procedures for exercising those rights and the authorized and required uses and disclosures of such information. The Privacy Rule defines what information needs to be protected, who is authorized to access the protected health information and delineates individuals' rights to control and access their own protected information.
The security standards in HIPAA were developed for two primary purposes. First and foremost, the implementation of appropriate security safeguards protects certain electronic health information that may be at risk. Second, protecting an individualÕs health information, while permitting the appropriate access and use of that information, ultimately promotes the use of electronic health information in the health care industry. HIPAA guarantees individuals the right to access and request amendment of their PHI and to request an accounting of disclosures of their protected PHI.
HIPAA applies to regulated health care professionals and health care corporations (covered entities). Under the law, covered entities are required to disclose to every client what can and cannot be done with PHI. We have all received "Notice of Privacy Practices" from our doctors. Covered entities are also required under HIPAA to have in place a system of business policies that meet common sense requirements about privacy protection both for paper records and for electronic records, such as a rule that files are to be kept in a secure location.
It is clear that when licensed health care providers work with patients within their scope of practice, they must comply with HIPAA because they are considered covered entities. Where things get murky is when a licensed health care provider works with clients via distance in a separate unregulated practice. Does HIPAA apply to the licensed health care provider who has a separate unregulated energy healing, wellness or coaching practice? For example, what if a chiropractor decides to offer EFT coaching sessions to clients via distance for stress management and life strategies. The chiropractor is not providing the EFT coaching sessions as part of his/her scope of practice as a chiropractor but only as an unregulated EFT practitioner and coach. Would the chiropractor need to use a HIPAA compliant electronic platform for EFT coaching sessions? If you fit into this category, where the application of HIPAA is unclear, you have a couple of options. One is to choose to be HIPAA compliant in your unregulated practice. A second option is to seek professional advice from a HIPAA compliant specialist to determine if it is advisable to be HIPAA compliant or not.
Generally, unlicensed energy healing practitioners, who are not also practicing some other regulated profession, are not obligated to comply with HIPAA. However, the wording of HIPAA contains some ambiguity, which can create a problem for unlicensed energy healing practitioners. In those states with health care freedom laws, such as New Mexico, Minnesota and California where unlicensed practitioners may offer their services as alternative healing arts practitioners, it is unclear whether they need to comply with HIPAA. Another example is the state of Colorado where unlicensed practitioners can register with the state as an "unlicensed psychotherapist". Do they need to comply with HIPAA? There is no authoritative answer and it is not clear what governmental body has the authority to provide an answer. If you are an unlicensed energy healing practitioner where the application of HIPAA is unclear, you must decide how you wish to proceed. If you are unclear or want to model your practice with licensed professionals, the safest counsel is to choose to comply with HIPAA on a voluntary basis. That means distance client sessions would need to be conducted on a secured HIPAA compliant electronic platform. With the uncertainty, it would be advisable to seek professional advice from a HIPAA compliant specialist.
In addition to HIPAA, energy healing practitioners need to be aware that they have a legal obligation to maintain the privacy and confidentiality of the information shared by their clients in sessions and to exercise due care. So, while unregulated practitioners may not be subject to HIPAA, they face a more significant legal risk if they fail to maintain the privacy and confidentiality of clients when conducting sessions remotely. An unlicensed practitioner could face a tort claim in civil court for breach of confidentiality, invasion of privacy or negligence. Because of the legal risks, the most prudent course of action would be to only use a secure electronic platform for distance client sessions. However, the costs of offering sessions on a secure electronic platform may be prohibitive for some energy healing practitioners. In such a case, there is a risk management strategy that can be implemented. When I draft a Client Agreement for an unlicensed practitioner, I always include in the confidentiality section of the Client Agreement, that if any communication regarding the client's session is conducted over the phone or via Zoom or another electronic platform, it is not possible to guarantee the confidentiality of the information. While that disclosure may or may not protect an unlicensed practitioner from a tort claim, it is an important risk management strategy to include in a Client Agreement.