American Journal of Law & Medicine

Alternative medicine's roadmap to the mainstream.


Alternative medicine has been rapidly expanding as consumers drive the demand for more cost-effective, accessible and individualized healthcare.(1) A commonly cited survey in the New England Journal of Medicine (NEJM) found that more Americans were consulting alternative care providers than allopathic/conventional physicians.(2) In 1998, David Eisenberg published a follow up to this landmark survey, showing a marked increase in both the use of alternative care and the number of individuals seeking such care.(3) The study revealed that 42.1% of Americans consulted at least 1 of 16 alternative therapies during 1997, an increase from 33.8% in 1990.(4) Total visits to alternative practitioners soared from 427 million in 1990 to 629 million in 1997.(5) This explosion of alternative care in the United States has begun to force prominent medical schools across the country to offer courses in alternative medical techniques.(6) Over seventy-five major medical schools have begun to teach courses in alternative modalities.(7) Moreover, the alternative care industry has established several journals to cover its expanding field.(8)

In an attempt to monitor the expanding field of medicine, Congress directed the National Institutes for Health to establish the Office of Alternative Medicine (OAM) in 1993.(9) The OAM provides research grants to evaluate the safety and efficacy of alternative modalities.(10) Since its inception, the OAM has funded over ninety research grants totaling over $13 million.(11) Under the 1999 Omnibus appropriations bill, enacted on October 21, 1998, Congress established the National Center for Complementary and Alternative Medicine (NCCAM) in place of the OAM.(12) Congress appropriated $50 million to establish NCCAM with the purpose of identifying and evaluating alternative modalities.(13) For Fiscal Year 2000, Congress increased appropriations to $68.4 million to reflect growing interest in alternative care.(14) "NCCAM has already begun a number of activities that will serve to facilitate the integration of validated CAM theories into conventional medical practice."(15)

Despite the dramatic surge in the promotion and use of alternative care, several obstacles still block alternative medicine's transition into the mainstream. Most notably, the American Medical Association (AMA) has impeded alternative providers access to its physicians' patients.(16) An editorial in the NEJM lambasted alternative care, claiming that these therapies are insufficiently tested, "rely ... on anecdotes and theories", are possibly dangerous, and are "a reversion to irrational approaches to medical practice."(17)

In addition, the insurance industry has been slow to react to the rise in demand for alternative treatment and has only recently begun to experiment with coverage.(18) The percentage of users paying entirely out-of-pocket for alternative therapies has improved only slightly between 1990 (64.0%) and 1997 (58.3%).(19) These statistics demonstrate the difficulty still faced by consumers in obtaining coverage for alternative care. Consumer demand has created a market for alternative care; however, discrimination against these providers abounds.(20)

This Note focuses on the expanding field of alternative medicine and its struggle to find a place in the healthcare quagmire. Part II describes the five fields of practice that fall under the rubric of alternative medicine and their licensure status throughout the United States. Part III provides an overview of state medical practice statutes as they pertain to alternative care and their varying acceptance of non-conventional modalities. Part IV illustrates legislative and judicial reluctance to bring alternative medicine into the mainstream. Part V discusses both federal and state legislation to provide choice of care to consumers. Part VI enumerates reasons to provide consumers with freedom of choice as well as mechanisms for its regulation. Part VII concludes by arguing that federal and state government should enact legislation to bring conventional and alternative medicine together to accommodate the integrated care that consumers increasingly demand.


Proponents of alternative medicine prefer to use the term complementary when referring to unconventional therapy because it more accurately reflects the interaction between alternative and standard medical treatment.(21) The dichotomous philosophies between alternative and conventional practitioners allow the two to coexist. Alternative practitioners treat the body as a whole being, taking into account the way various illnesses affect the person in totality; whereas, conventional medicine treats the body as a group of isolated mechanical parts that independently require fixing.(22)

Another distinction between the two is their divergent definitions of health.(23) Conventional medicine's goal is to "cure" the physical body of disease, healing from the outside in through the use of drugs, surgery and/or radiation.(24) In contrast, alternative medicine's goal is to "heal" which involves a progression towards total mental, physical and emotional wellness.(25) Alternative modalities seek to trigger the innate healing abilities of the body; thus, healing from the inside out.(26) Further, alternative care establishes a synthesis between the body and its environment. It "recognize[s] the importance of considering the condition of the patient as well as the disease [to] ... advance the theory that ... the mind and the body, are one."(27) Each of the following five forms of alternative care utilize some aspect of this "total body" philosophy in their treatment.


Chiropractic was founded by Daniel David Palmer in 1895 and derived its name from Greek, meaning "done by hand."(28) State statutes vary in their definition of chiropractic, essentially regarding it as the "science of adjusting the cause of disease by realigning the spine, [and] releasing pressure on nerves radiating from the spine."(29) It is used primarily to treat lower back and neck pain.(30) Chiropractors are allowed by statute to utilize X-rays, but are restricted from performing surgery or prescribing drugs.(31) Chiropractic is currently licensed in all fifty states and receives reimbursement from private and public insurers.(32) Chiropractic has been militant in its effort to remain separate from allopathic (conventional) medicine and has fought many attacks from allopaths(33) who regard chiropractic as quackery.(34)

In 1998, the American Chiropractic Association (ACA) filed a lawsuit against the Secretary of Health and Human Services (HHS) claiming that HHS failed to respond to a request by Congress "to study the extent to which chiropractic services are provided to enrollees by contracted HMO Medicare plans."(35) The complaint alleges that HHS has not followed Congress' directives to evaluate how frequently, if at all, Health Maintenance Organizations (HMOs) with contracts under section 1876 of the Social Security Act offer chiropractic services to enrollees.(36) As a remedy, the complaint asks the court to order the Secretary of HHS to refrain from publishing new regulations, rules or policy statements and to correct or rescind any regulations intended to deny chiropractic benefits to Medicare HMO patients.(37)


Acupuncture is a form of Asian medicine that has been practiced for over 2000 years, debuting in western culture during the early Nineteenth Century.(38) This approach to care involves inserting needles into the body to regulate the "flow and balance" of body energy.(39) Acupuncturists believe that a disruption in the flow of qi ("chee") causes illness.(40) Acupuncturists use this therapy to treat many illnesses, including drug addiction, chronic pain, mental disorders and nausea.(41) One experimental counseling program in Oregon sentences drug users to treatment that includes acupuncture instead of prison.(42)

In 1972, acupuncture got a tremendous boost from a New York Times columnist who, while visiting China, was treated with acupuncture during an emergency appendectomy.(43) By 1994, this modality was regulated in twenty-seven states with licensure in sixteen.(44) Today, acupuncture is licensed in thirty-five states.(45) In some states, the statutes require another provider (e.g., chiropractor, physician or dentist) to supervise any acupuncturist who is not a physician.(46)


Massage therapy has a variety of statutory definitions that center on the concept of using the hand to "rub," "stroke," or "knead" the body to "positively affect the health and well-being of the individual."(47) Most statutes describe this modality as the treatment of soft tissues by manual or mechanical means.(48) Twenty-seven jurisdictions have created licensure statutes for massage therapy, despite the fact that few of these jurisdictions have established independent regulatory boards.(49) Some states grant the explicit authorizations for naturopaths,(50) acupuncturists, chiropractors, podiatrists and physical therapists to practice massage therapy.(51) Other state statutes allow local jurisdictions to regulate massage at the county and municipal level.(52)


Naturopathy originated in European health spas during the eighteenth and nineteenth centuries.(53) Benedict Lust founded the formal practice in 1900 when he established the first naturopathic college.(54) Most statutes define naturopathy as the "healing power of nature" that uses techniques such as acupuncture, hydrotherapy, homeopathy and naturopathic manipulative therapy to treat conditions naturally. …

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