Attorney General: J. Robert Galvin, M.D., M.P.H., Commissioner, Department of Public Health, Robert M. Murphy, N.D., Chairman, Connecticut State Board of Natureopathic Examiners, 2004-015 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 31, 2004

J. Robert Galvin, M.D., M.P.H.
Commissioner
Department of Public Health
410 Capitol Avenue
Hartford, CT 06106

Robert M. Murphy, N.D., Chairman
Connecticut State Board of Natureopathic Examiners
Northweast Holistic Health Center
21 Prospect Street, Suite A
Torrington, CT 06790

Dear Commissioner Galvin and Chairman Murphy:

In response to then Commissioner Joxel Garcia's and Chairman Murphy's requests, this is a formal opinion responding to the following questions: 1) Does "phototherapy" as used in Conn. Gen. Stat. 20-34, incorporate the use of "laser therapy equipment"?; 2) Does the State Board of Natureopathic Examiners have the authority to expand its scope of practice either with or without the consent of the Commissioner?; 3) Does the Department of Health's use of the 1997 Connecticut Medical Examining Board's "declaratory ruling on use of hair removal" to prohibit a licensed natureopathic physician from employing laser hair removal constitute an unfair restriction of trade?

Statutory Background

Connecticut General Statutes 20-34 provides:

(a) The practice of natureopathy means the science, art and practice of healing by natural methods as recognized by the Council of Natureopathic Medical Education and approved by the State Board of Natureopathic Examiners, with the consent of the commissioner, and shall include (1) counseling and (2) the practice of the mechanical and material sciences of healing as follows: The mechanical sciences such as mechanotherapy, articular manipulation, corrective and orthopedic gymnastics, physiotherapy, hydrotherapy, electrotherapy and phototherapy; and the material sciences such as nutrition, dietetics, phytotherapy, treatment by natural substances and external applications.

Emphasis added.

Factual Background

These questions arose from the following events: On December 17, 1997, the Connecticut Medical Examining Board (CMEB) issued a Declaratory Ruling on the use of lasers for hair removal by health care providers other than licensed physicians. The CMEB determined that the use of a laser to remove hair is within the scope of medical practice. Accordingly, the CMEB determined that only licensed physicians should assess each patient prior to and during the course of hair removal treatment with laser therapy, and that the physician may delegate the operation of the laser to persons listed in Conn. Gen. Stat. 20-9(b)(14),1 who are under the supervision, control, and responsibility of a licensed physician.

In 2002 the Department investigated Andrew Rubman, N.D., for unauthorized use of lasers, and cited the CMEB's declaratory ruling as a basis for the Department's position that a natureopathic doctor is not authorized to use a laser.

The State Board of Natureopathic Examiners has questioned this limitation, and is of the view that phototherapy as found in Conn. Gen. Stat. 20-34 encompasses the use of laser equipment.

Discussion

1) Does "phototherapy" as used in Conn. Gen. Stat. 20-34, incorporate the use of "laser therapy equipment"?

For the reasons that follow, we conclude that phototherapy as used in Conn. Gen. Stat. 20-34, does not presently incorporate the use of laser therapy equipment. The process of statutory interpretation involves a reasoned search for the intention of the legislature, and the initial guide is the language of the statute itself. Kudlacz v. Lindberg Heat & Treating Co., 250 Conn. 581, 587 (1999). On the face of Conn. Gen. Stat. 20-34, it is not clear what the legislature intended "phototherapy" to encompass. There is no definition of phototherapy. The legislative history of 20-34 must be consulted to shed light on the term's meaning.

The Naturopathic Board was first created by legislative enactment in 1923. 1923 Public Act 245. The practice of natureopathy was defined as:

the practice of psychological, mechanical and material sciences of healing as follows: The psychological sciences, such as psycho-therapy; the mechanical sciences, such as mechano-therapy, articular manipulation, massage, corrective and orthopedic gymnastics, neuro-therapy, physio-therapy, hydro-therapy, electro-therapy, thermo-therapy, photo-therapy, chromo-therapy, vibro-therapy, concussion, pneumato-therapy and zono-therapy; and the material sciences, such as dietetics, histolo-therapy and external applications; but shall not be held to mean internal medication.

(Emphasis added.)

In 1927, the legislature amended the definition of the practice of natureopathy. 1927 Public Act 181. The legislature removed massage, zono-therapy, histolo-therapy from the definition and added the following:

but shall not mean internal medication or the administering of any substance simulating medicine or the form of medicine. Nothing in this act shall be construed as changing, altering or repealing any statute concerning the practice of osteopathy or chiropractic.

In 1930, the definition of the practice of natureopathy was again revised by removing the following: "[n]othing in this act shall be construed as changing, altering or repealing any statute concerning the practice of osteopathy or chiropractic." 1930 Public Act 27 Sec. 2772. The definition of the practice of natureopathy was amended in 1939 by excepting dehydrated foods from forms of medicine. In 1949, there were only technical changes made to the definition.

In 1984 the definition of the practice of natureopathy was amended to the present definition. See supra, p.1. 1984 P.A. 111. The changes found in 1984 P.A. 111 will be discussed infra. There were only technical changes made to the definition in 1985.

"Phototherapy" has been included in the definition of the practice of natureopathy since it was first defined by the legislature in 1923. The legislature did not define phototherapy. In 1923, lasers did not exist. Arthur Schowlow and Charles Townes are credited with inventing the laser in 1958 with their publication of a scientific paper entitled Infrared and Optical Masers. Physical Review, 112, pp. 1940-1949, (December 15, 1958). Lasers began to be used for medical procedures in the 1960's.

As mentioned supra, the legislature changed the definition of the practice of natureopathy in 1984. P.A. 84-111, S. 1, 2. This change is reflected in the present version of Conn. Gen. Stat. 20-34. Under the present definition, the practice of natureopathy includes natural methods "as recognized by the Council of Natureopathic Medical Education and approved by the State Board of Natureopathic Examiners, with the consent of the Commissioner." Prior to this change, the definition had not been substantially modified from the original definition found in the originating legislation from 1923.

The comments of Representative Gionfrido reflect the rationale for the change:

Quite simply what this bill does is update the definition of natureopathy in the State of Connecticut. It has not been updated since the 1920's and there were some terms of art that needed to be eliminated and some other items that needed to be taken in. It doesn't expand the scope of current practice at all, but as I say just updates.

House of Representatives, Representative Gionfrido, April 12, 1984, Vol. 27 Part 5, 1822-23.

As in the originating statute, the legislature did not define the term "phototherapy". Further, the comments of Representative Gionfrido demonstrate that the Public Act did not expand the scope of practice.

However, in the 1984 revision, the legislature left it to the Council of Natureopathic Medical Education, the State Board of Natureopathic Examiners, and the Commissioner to further define the "science, art and practice of healing by natural methods . . ." Accordingly, the only reasonable interpretation of this amendment is that the Council of Natureopathic Medical Education, State Board of Natureopathic Examiners and the Commissioner are to determine what methods are encompassed by the mechanical science of phototherapy. All must be in agreement.

Based upon the letter of Robert Lofft, Executive Director of the Council of Natureopathy Medical Education (CNME), dated April 1, 2002, to Chairman Murphy, the CNME believes that laser therapy is a component of phototherapy.2 Dr. Murphy's letter to then Commissioner Garcia dated December 5, 2002, demonstrates that the Board of Natureopathic Examiners also believes that the use of laser equipment is a form of phototherapy that natureopathic doctors should be permitted to perform. Thus far, the Department has not agreed. We understand that the Department relied upon the December 17, 1997 declaratory ruling of the CMEB as a basis for its investigation of Andrew Rubman, N.D. Accordingly, without the Commissioner's consent, the term phototherapy found in Conn. Gen. Stat. 20-34 does not include the use of laser equipment.

2) Does the State Board of Natureopathic Examiners have the authority to expand its scope of practice either with or without the consent of the Commissioner?

The State Board of Natureopathic Examiners does not have the authority to expand its scope of practice. See discussion, supra, at pp. 4, comments by Representative Gionfrido. Connecticut General Statutes 20-34 as amended in 1984 does not expand the scope of natureopathic practice. However, under the language of Conn. Gen. Stat. 20-34, the State Board of Natureopathic Examiners may determine that hair removal by laser falls under the mechanical science of phototherapy, but only if this is a method recognized by the CNME, and the Commissioner consents. The legislative history to 1984 P.A. 111 strengthens this interpretation. The original proposed bill did not require the Department to consent to the natural methods recognized by the Board and the CNME. During the Public Health Joint Standing Committee Hearings, the language of the bill was modified so that the Department's consent was required. See Joint Standing Committee Hearings, Public Health, February 24, 1984, 1-152, Test. Gary Dewitt, Assistant Director of the Division of Medical Quality Assurance, Department of Public Health, pp. 11-12; Test. Enrico Liva, Secretary for the Connecticut Society of Natureopathic Physicians, pp. 27-28.

The present matter is similar to the dispute found in Connecticut State Medical Society v. Connecticut Board of Examiners in Podiatry, 208 Conn. 709 (1988). In Connecticut State Medical Society, the Podiatry Board issued a declaratory ruling pursuant to Conn. Gen. Stat. 4-176, that the ankle is part of the foot as defined in Conn. Gen. Stat. 20-503 and that podiatrists could treat ankle ailments. The Connecticut State Medical Society appealed the declaratory ruling, and the superior court determined that the declaratory ruling expanded the scope of podiatry practice as defined in Conn. Gen. Stat. 20-50 and was contrary to the plain meaning of the statute. Id. at 715. The Podiatry Board appealed and the Supreme Court held that the legislature did not empower the Board to define the scope of podiatry practice in Connecticut.

As in the present case, the legislature did not unilaterally empower the State Board of Natureopathic Examiners to define the scope of practice of natureopathy in Connecticut. Rather, Conn. Gen. Stat. 20-34 requires the natureopathy scope of practice to be defined "by natural methods as recognized by the Council of Natureopathic Medical Education and approved by the State Board of Natureopathic Examiners, with the consent of the commissioner. . ." Conn. Gen. Stat. 20-34.4

Accordingly, the State Board of Natureopathic Examiners may not unilaterally determine the scope of Natureopathic practice. Only if the Commissioner agrees with the CNME and the State Board of Natureopathic Examiners that laser hair removal falls under phototherapy, could the use of lasers for hair removal be within the scope of practice of natureopathy.

3) Does the Department of Health's use of the 1997 Connecticut Medical Examining Board's "declaratory ruling on use of hair removal" to prohibit a licensed natureopathic physician from employing laser hair removal constitute an unfair restriction of trade?

As discussed in responses to questions 1 and 2, pursuant to Conn. Gen. Stat. 20-34, the Commissioner must be in agreement with the State Board of Natureopathic Examiners and the Council of Natureopathic Medical Education in order for the mechanical science of phototherapy to encompass the use of laser equipment. This permits the Commissioner wide latitude to withhold his consent for the concern of the public health. Moreover, in order to legally practice natureopathy an individual must receive a license from the Department. Conn. Gen. Stat. 20-37. Inherent within any licensing scheme, a licensee is subject to restrictions imposed by the licensing and regulating entity. In this case, the Department has the authority to place limits on natureopathic physicians. Conn. Gen. Stat. 20-34 and 20-37. "The plaintiff's right to pursue her chosen employment is not without limits, but is subject to the state's exercise of its police power to protect the health and welfare of the public. See State v. Vachon, 140 Conn. 478, 101 A.2d 509 (1953). Among all the objects sought to be secured by governmental laws, none is more important [than the protection of public health]; and an imperative obligation rests on the state, through its proper instrumentalities or agencies, to take all necessary steps to promote this object." 39 Am. Jur. 2d., Health at pp. 1 (1999)." Linda Elf v. Department of Public Health, 66 Conn. App. 410, 428-29; 784 A.2d 979(2001). Accordingly, the Commissioner may rely upon the Medical Examining Board's declaratory ruling to withhold his consent, and this cannot be characterized as an unfair restriction of trade.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Rosemary M. McGovern
Assistant Attorney General


1 Conn. Gen. Stat. 20-9(b)(14) provides: "Any person rendering service as a physician assistant licensed pursuant to section 20-12b, a registered nurse, a licensed practical nurse or a paramedic, as defined in subdivision (15) of section 19a-175, acting within the scope of regulations adopted pursuant to section 19a-179, if such service is rendered under the supervision, control and responsibility of a licensed physician."

2Robert Lofft's April 1, 2002 letter to Robert Murphy, N.D., Chairman of the State Board of Natureopathic Medicine, provides in relevant part: "Naturopathic doctors in Europe had been using various forms of light therapy long before naturopathic medicine was brought to the United States in the late 1800s. . . . Since then, phototherapy has been an essential part of the curricula at naturopathic medical schools. It is logical that laser light, like sunlight, infrared light, ultraviolet light, and bilirubin light, is an acceptable naturopathic treatment for conditions that respond, respectively, to these forms of light." (Emphasis added.)

According to Robert Lofft's letter, he inquired with several deans of naturopathic colleges in the United States and Canada to ascertain their opinion on the issue. His letter provides, "They agreed that the use of lasers for hair removal . . . because it is a phototherapy modality, should be within the scope of practice for naturopathic doctors who have received training in this area."

3Conn. Gen. Stat. 20-50 provided in relevant part: "Podiatry is defined to be the diagnosis, prevention and treatment of foot ailments . . . the practice of surgery upon the feet . . . the dressing, padding and strapping of the feet; the making of models of the feet and the palliative and mechanical treatment of function and structural ailments of the feet, not including the amputation of the leg, foot or toes or the treatment of systemic diseases other than local manifestations in the foot."

4Clearly the present matter is different from Connecticut State Medical Society, supra, 208 Conn. 709, in that the legislature did reserve some authority for the State Board of Natureopathic Examiners to define the scope of natureopathic practice. However, the State Board of Natureopathic Examiners does not have the total authority to define its scope of practice.


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