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Your Comments: 3rd Way and Other Issues - Sherman Cohn, JD and IAYT Exec John Kepner PDF Print E-mail
Written by John Weeks   

Your Comments: 3rd Way and Other Issues - Sherman Cohn, JD and IAYT Exec John Kepner

Summary: The Integrator interview with Pamela Snider, ND, on the maturation of the CAM professions stimulated Sherman Cohn, JD, former Watergate lawyer and a professor at Georgetown University, to question whether the discussion of a "third way" downplayed legal risks ... Then John Kepner, the executive director of the International Association of Yoga Therapists took the time to walk through some hanging questions, for the emerging field of Yoga therapy, on which Snider touched in the interview. The IAYT commissioned the series of Integrator articles which led to the Snider interview,
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The recent Integrator interview (Accountability and Soul: CAM Professions Expert Pamela Snider, ND on the Maturation of the CAM Professions and of Yoga Therapy) explored the choices made by diverse complementary and alternative healthcare professions in responding to the opportunities, responsibilities and risks of integration. Snider referenced the desire of some Yoga therapists to find a "3rd way" which is neither remaining outside of mainstream health care or rushing to adopt all of the self-regulation, insurance and licensure strategies which emerging professions have typically followed. Thus the accountability and soul title. The article provoked two quality responses.

1.   Without Legal Sanction, "3rd Way" Bears Risks

Commentator Sherman Cohn, JD
The day job for
Sherman Cohn, JD is professor of law at Georgetown University. (His legal experience includes working as a Watergate lawyer.) Cohn is also a long-time observer and participant in the development and evolution of the natural healthcare disciplines. Cohn is a long-time board member of, and presently board chair for, Tai Sophia Institute. He is also a board member with the Integrated Healthcare Policy Consortium. He was last seen in the Integrator in his comment on hourly fees of acupuncturists   
"I enjoyed reading the interview between the two of you in the current 'issue' of the Integrator Blog.  This is an arena in which the two of you have lived and labored for many years.  You bring words of great wisdom from that labor.  Thank you both.

"There is one perspective, however, that I felt was missing.  I too attended the IAYT Conference and learned much more about Yoga than I had known before.  And I considered some of the same issues that you discussed.  The one aspect that I felt was missing in your discussion is that of legal risks.  What I heard discussed at the IAYT Conference is how Yoga can help with the management of various diseases, including cancer.  Indeed, there were several workshops devoted to those issues. 

"As I am sure you each know well, the 'practice of medicine' is regulated by law in every state.  It is defined broadly to include any treatment -- whether primary or conjunctive, whether curative or palliative -- and thus includes any modality that is designed, administered, or promoted to relieve symptoms or make them easier to live with.   And, of course, the practice of medicine by one without a license is a crime in every state.  The legal exceptions are those carved out by statute for chiropractors (in every state), acupuncturists (in approximately 45 states), naturopaths (in 14 states), homeopaths (in four states), and massage therapists (in approximately 35 states).  For any therapy to be used to relieve symptoms of disease, whether or not curative or preventative, without licensure carries legal risks.

"I do not quarrel that licensure also carries various costs.  And there may be a 'third way' that avoids or ameliorates those costs.  But without the sanction of law, that 'third way' also bears risks.  I am not judging whether or not the 'third way' that is proposed is good or bad -- it sure sounds good to me.  Nor am I advocating for or against it.  I merely point out that to achieve such a third way, one must consider the legal risks.  A rational judgment may be made that those risks are worth taking.  One may even argue that, as 'integrative' medicine becomes more widespread, those risks are reduced.  But one may also point to the on-going efforts of conventional medicine, through the American Medical Association and the state medical societies, to protect their own turf through working to limit the professions that are statutorily excepted from the 'practice of medicine' to their statutory turf, and know that the risks have not entirely disappeared.

"With all due respect to your very fine exchange, I found that perspective missing."

Professor Sherman Cohn, JD
Georgetown University

2.    IAYT Executive Director Kepner Explores Some Hanging Questions

IAYT executive director John Kepner
I first met John Kepner, the executive director of the International Association of Yoga Therapists, when he called me in the spring of 2005 about the National Education Dialogue to Advance Integrated Health Care. Kepner's vision for the IAYT was to get it connected, while exploring various futures.  Since that time, I have marveled at Kepner's dance, trying to both hold and advance the whole profession of Yoga therapy in all its diversity. His comments and questions are below.
I added the bold subheadings.
"I appreciate this interview very much, including the very practical questions you kept coming back to, and Pamela's most helpful answers.   

"A few comments, mostly in the lines of more questions.

Accountability strategies and IAYT's potential for harm

"1. Dr. Snider says the unifying purpose of licensing, et al
is accountability.  My understanding, however,  is that the public purpose is really the protection of the public, and the method of doing so is accountability, e.g., licensing, accreditation, peer review, etc. Thus to me, the first question is, is there really a significant potential for harm to the public from Yoga therapy, such that there has to be accountability beyond the normal market system.  Remember, regulation is costly, and so, a more refined question is, is the potential for harm such that the benefits of regulation outweigh the costs?  Yoga teachers do not prescribe drugs, perform surgery, insert needles, make adjustments, etc.  Yoga teachers usually just invite students to move, breath or think in certain ways, using the student's own body, breath or mind. Yes, sometimes students get hurt, but how significant this is, is not well measured.  My impression is that our field is quite divided on the significance of the potential for harm from teaching Yoga and Yoga therapy. 

"My impression is that
our field is quite divided
on the significance of
the potential for harm
from teaching Yoga and
Yoga therapy."

- John Kepner
Voluntary regulation?

"2. Assuming that some system of professional, external accountability is indeed desired, can this be achieved without licensing, or other statutory support?  Indeed, can this be achieved by, say, a system of voluntary registration for individuals meeting certain training standards, such as currently provided by the Yoga Alliance in the US?

A step beyond regulation?

"3. Or, to be credible, and still in the voluntary world, should we move beyond the current YA registry system, which simply measures the quantity of training in certain areas, and move to some method of demonstration of competency, such as third party testing? 

Why try and shift Yoga therapy's cash economy?

"4. Speaking of credibility, who really needs credibility besides the student?  Are we talking about credibility to insurance companies so that they will provide reimbursement?  As you and your readers well know, there are huge problems with insurance and our health care financing system in this country.  Why attempt to join that?  Yoga therapy is not costly, compared to hospital stays, or even, at least in my observation, physical therapy, psychotherapy, etc.  Yoga is well established as cash pay practice.  Why try and change that?  A direct cash pay practice also supports the student teacher relationship, something that not only is important in Yoga, but historically important in all health care disciplines, but arguably quite harmed by our modern insurance system.

Maybe we are talking only talking about credibility to other health care providers, so as to increase collaborative care for the benefit of the patient/student. To me, that's another matter and might be able to be achieved through a voluntary system much easier that credibility to the health care financing system, which would probably require formal regulatory recognition and formal means of accountability.   

Need examples of special "metrics" from other professions

"5. I am extremely interested in, but still confused by, the use of the term 'metric'.  As I understand it, one of the (Northwest Association of Schools and Colleges) 'metrics' for a teacher was a terminal degree from an accredited school, and hence the experienced, but un-degreed professor was dismissed.  (Similar issues appear to be happening in Yoga, for teachers of Yoga in college.)  I understand Pamela to say that the midwives designed a metric to recognize apprenticeship.  I would be interested hearing more about the concept of 'metrics' in heath care and, in this context, more examples of metrics used by other CAM professions that might be outside the norm from conventional academic training but honored the historic roots of the discipline in a sound and beneficial manner.

Painful thoughts - some kind of national standards for Yoga therapy

"I am still concerned
about the regulation
and third party review. 

"Again, can this be done
on a voluntary basis?"

- John Kepner

"6.    Back to accountability and Pamela's last paragraph. I can imagine the possibility (but not without pain) of some kind of national educational standards in Yoga therapy, and some kind of national testing for competency (perhaps in areas common to (most but not all)  methods such as  Anatomy and Physiology), but I am still concerned about the regulation and third party review.  Again, can this be done on a voluntary basis?  (e.g., listing or de-lisiting, in a voluntary registry or voluntary membership in an association such as IAYT).   And, on a very practical basis, how would a voluntary association handle complaints about malpractice and sexual harrassment?  That would be a huge leap in responsibilities assumed by a small organization, holding aside all the difficulties and distasteful matters that would be required.  I expect every other professional discipline has to face this, for better or worse, but I personally cringe when I think about getting involved in this. 

"Again, thank you for your keen and most helpful interviews in this series, and the insight and generosity of those who so graciously participated in the interviews."


Carlo Calabrese, ND, MPH - a moment of a profession's maturation
Comment:  I confess to some magical thinking regarding the so-called "3rd way."  The notion fits with one's paradigm-busting instincts. If a system needs transformation, perhaps every aspect of relationship, including licensing and regulation, needs to be spring-cleaned and over-hauled - if not maybe chucked out. The most fundamental assumptions must be challenged. I imagine, in biblical terms, IAYT fulfilling on its vision for its future: The first shall be last and the last shall be first.  Perhaps by some odd symmetry, the unregulated Yoga therapists, visiting us from the East with their mind-body approaches, will lead us out of the darkness of our guild-y pleasures.

Then the dream passes. I wake to a moment in 1991 which features naturopathic Carlo Calabrese, ND, MPH. The naturopathic whole practice research expert was then executive director of the Council on Naturopathic Medical Education (CNME). The CNME was under review by the US Department of Education and facing challenges from some who call themselves naturopathic doctors but who don't abide by the CNME standard of a 4-year, post-premedicine, residential education. The antagonists realized that if the CNME standard was re-affirmed by the Department of Education that licensing would be speeded. And in each jurisdiction with new licensing, those who do not meet the standard would increasingly lose the ability to call themselves doctors of naturopathic medicine based on their mail-order degrees, or in the case of some, "certification without examination."

Calabrese, in the hearing's 11th grueling hour, eyed the Department of Education dozen panel members. Then he stated bluntly something which came to mind many times as I thought about professional standards while writing the series with IAYT: "Setting standards creates pain."

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