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1997: |
AB286
passes after legislators explicitly agree to
remove "intravenous infusion" and "chelation
therapy" from the list of allowable
therapies. |
A.B. 286, as amended,
considerably enhanced the power of the Homeopathic Board
to regulate its own practitioners, but did not contain
the language that would have authorized that board to
"determine which allopathic pharmaceuticals and
controlled substances, if any, the homeopathic physician
. . . may prescribe in conventional allopathic dosages."
Similarly, while the Assembly Committee on Commerce had
accepted the Homeopathic Board's draft language
establishing its right to discipline its own members,
the committee amended that provision by adding an
explicit declaration that if the conduct of a
homeopathic physician concerned a practice that was
within the jurisdiction of another licensing board, the
Homeopathic Board was required to forward the complaint
to the appropriate board for action. (See A.B. 286,
First Reprint). Finally, the Committee edited the list
of proposed alternative therapies. As previously
mentioned, the Committee eliminated the general power to
prescribe allopathic drugs in allopathic doses by
removing the phrase "pharmaceutical medicine" from the
list of alternative therapies. In
its initial consideration of amendments to the bill, the
committee retained the terms "intravenous infusion and
chelation therapy."
(See Exhibit C, Attachment B, Minutes, Assembly
Committee on Commerce, May 5, 1997.)
These two terms, however, were also subsequently
removed.
(See Floor Minutes of the Assembly Committee on
Commerce, June 29, 1997, Assembly Journal, June 29,
1997, pp. 1777-78.)
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2000:
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Despite the strong opposition expressed in
1997 by the Medical Board, the Pharmacy
Board, and other
members of the medical community to
allowing homeopaths to administer
intravenous infusions and chelation therapy,
State Senator Randolph Townsend remembers
being told by an unnamed informant that
these two terms had been removed only
because they were redundant. |
With these changes in place, the
Medical Board and State Board of Pharmacy (Pharmacy Board)
withdrew their opposition to the legislation. The hearing on the
amended bill before the Senate Committee on Commerce and Labor
was relatively brief as there was no substantive opposition. One
erstwhile opponent testified that in its present form the bill
was "innocuous." (Testimony of Robert Barengo, Hearing, Senate
Committee on Commerce and Labor, July 3, 1997.) However, the
chairman of that committee recalls being informed that the terms
"chelation therapy," "intravenous infusion," and pharmaceutical
medicine" had been removed solely to eliminate redundancy or
surplus language. He understood that it was agreed by all
parties that those therapies were authorized by virtue of the
remaining terms. For that reason alone, he recalls, the Senate
committee did not conduct full hearings on the bill. (See
Comments of Senator Randolph J. Townsend, Minutes, Legislative
Commission, June 26, 1998; see also Comments of Senator Mark
James, Minutes, Legislative Commission, December 18, 1998.)
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2000 |
The LCB
acknowledges that legislators voted for
AB286 with the understanding that homeopaths
would not be permitted to provide chelation
therapy or intravenous infusions. |
D espite what now appears as an
obvious difference in understanding between certain members of
the Senate with some of their colleagues in the Assembly,
there
is nothing to suggest that members of either house were aware of
these differences when they voted unanimously in favor of the
amended bill. Although the new alternative therapies were each
listed in the bill, they were not defined. Consequently, the
Homeopathic Board attempted to
supply these definitions by
regulation...
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2000 |
The LCB concludes that intravenous infusion
and chelation therapy should be permitted
because legislators, who passed the bill
believing that these therapies had been
excluded, failed to "take corrective action"
to ensure that they had been excluded. |
3. On balance
I t is the opinion of this office
that when A.B. 286 and its legislative history are examined as a
whole, the legislative intent behind the bill was to extend the
scope of the licensed practice of homeopathic medicine and to
increase the power of the Homeopathic Board to regulate that
practice, but that it was not the intent to authorize
singly-licensed homeopathic physicians the unlimited right to
practice allopathic medicine in the same manner as allopathic
physicians. More particularly, the Legislature intended
homeopathic physicians to enjoy expanded authority to write
prescriptions with regard to certain allopathic medicines, but
only to the extent required in practicing certain enumerated
alternative therapies. In general, the definitions contained in
the regulation of the Homeopathic Board, R213-97, do not exceed
the Board's statutory authority and are consistent with
legislative intent. We think it highly likely that a court of
competent jurisdiction, if asked, would agree. We believe,
however, that with respect to the definition of one alternative
therapy, orthomolecular medicine, particularly that branch of it
that concerns chelation or other forms of detoxification by
means of intravenous infusion, there is a significant question
whether that portion of the regulation is consistent with
legislative intent. Nevertheless, assuming that a court would
grant the regulation its presumption of validity, would take
into consideration: (1) that the Legislative Commission did not
object to the regulation on the grounds that it violated
legislative intent; and (2) that the Legislature as a whole,
with knowledge of the existence of the controversy over this
provision, took no corrective action during the 1999 session, we
are inclined to believe that the court would be more likely than
not to uphold the validity of this element of the regulation as
well. In any event, we conclude that such a court would not
invalidate the regulation in its entirety.
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2000 |
The LCB holds that homeopathic physicians
may give intravenous infusions, but only
within the scope of chelation therapy and
other forms of detoxification.
However, since the homeopaths were permitted
to "define by regulation" exactly what was
allowed under this legislation, they have
long since discarded any limits that the
legislature meant to impose. |
III. Conclusions
...It is the further opinion of this
office that licensed homeopathic physicians may practice all of
the therapies defined in R213-97, including chelation therapy
and other forms of detoxification by means of intravenous
infusion. A reasonable interpretation of the statutes and
regulations, currently in effect, including R213-97, establishes
that homeopathic physicians possess the following authority to
write prescriptions by virtue of their homeopathic licenses:
1. When practicing traditional or
classical homeopathy, they may prescribe, dispense and
administer traditional homeopathic remedies as medically
appropriate according to the standards applicable to the
homeopathic tradition. With respect to allopathic medications,
including controlled substances or dangerous drugs, homeopathic
physicians may write prescriptions for a single pill of such
substances, but only for the purpose of diluting it and
compounding it into a homeopathic preparation, only if the
allopathic drug is found in the Homeopathic Pharmacopoeia and
only if the resulting diluted dosage is in accordance with
dosages found in that pharmacopoeia.
2. When practicing one of the
alternative therapies expressly authorized by A.B. 286 and
defined in R213-97, homeopathic physicians may prescribe:
(a) Any controlled substance
listed in schedule I, II, III, IV or V as set forth in chapter
453 of NRS, so long as both administration and dosage are
medically appropriate according to the standards applicable to
that alternative therapy, except that a homeopathic physician
may not prescribe "narcotic drugs and opiates that are listed as
schedule II controlled substances pursuant to chapter 453 of
NRS, except as those substances may be described for use in the
official Homeopathic Pharmacopoeia of the United States."
(R213-97.)
(b) Any dangerous drug that is
defined in chapter 454 of NRS so long as both administration and
dosage are medically appropriate according to the standards
applicable to that alternative therapy.
(c) Any other allopathic drug
available by prescription so long as both administration and
dosage are medically appropriate according to the standards
applicable to that alternative therapy.
Finally, it is the opinion of this
office that, in general, the definitions contained in the
regulation of the Homeopathic Board, R213-97, do not exceed the
Board's statutory authority and are consistent with legislative
intent. However, with respect to the definition of one
alternative therapy, orthomolecular medicine, particularly that
branch of it that concerns chelation or other forms of
detoxification by means of intravenous infusion, there is a
significant question whether the regulation is consistent with
legislative intent. Nevertheless, in light of the presumption of
validity that accompanies every regulation and taking into
consideration that the Legislative Commission did not object to
the regulation and that the Legislature took no corrective
action during the 1999 session, we are inclined to believe that
a court of competent jurisdiction would be more likely than not
to find the portion of the regulation consistent with
legislative intent. In any event. we conclude that such a court
would not invalidate the regulation in its entirety.
For evidence against Townsend's dubious claim that
"chelation" and "intravenous infusions" were eliminated as
"surplus" language, see "Nevada
Doctors Battling," Las Vegas Review Journal,
12/3/1997.
The Board of Medical Examiners has apparently relied on this
weakly argued, poorly supported, and highly qualified opinion to
justify a wholesale abrogation of its mandate to prevent unfit
doctors from practicing in Nevada. While this opinion,
which would not withstand the slightest challenge, did increase the
power of the Homeopathic Board to regulate a few enumerated
therapies, it does not support the Medical Board's sweeping
assertion that it has no power over homeopathic physicians.
If this were true, then homeopathic doctors would not be
required to possess an allopathic medical license, and A.B. 286 would conflict with the
primary responsibility of the Medical Board as declared in NRS
630:
1. The
Legislature finds and declares that:
(a) It is among
the responsibilities of State Government to ensure,
as far as possible, that only competent persons
practice medicine and respiratory care within this
State;
(b) For the
protection and benefit of the public, the
Legislature delegates to the Board of Medical
Examiners the power and duty to determine the
initial and continuing competence of physicians,
physician assistants and practitioners of
respiratory care who are subject to the provisions
of this chapter;
(c) The Board
must exercise its regulatory power to ensure that
the interests of the medical profession do not
outweigh the interests of the public;
(d) The Board
must ensure that unfit physicians, physician
assistants and practitioners of respiratory care are
removed from the medical profession so that they
will not cause harm to the public; and
(e) The Board
must encourage and allow for public input into its
regulatory activities to further improve the quality
of medical practice within this State.
2. The powers
conferred upon the Board by this chapter must be
liberally construed to carry out these purposes for
the protection and benefit of the public.
(Added to NRS by
1975, 411; A 1977, 820; 1985, 2224; 1987, 729;
2001, 759;
2003, 3430)
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