Neurofeedback Laws & Licensing: Unlock Brains’ Potential But Be Legally Safe–Part 3: Proposed New York Legislation

Biofeedback and neurofeedback are regulated differently across states - and at least in one, there has been a recent push for title licensure.

Title Licensure for Neurofeedback Therapy

Recently, legislation has been proposed in New York State (in the Assembly, A03953, which:

Provides for the licensing and regulation of the practice of neurofeedback therapy; defines practice of neurofeedback therapy; establishes state board of neurofeedback therapy and the requirements to qualify for a license as a neurofeedback therapist.

This is one potential legislative avenue for neurofeedback practitioners to study.

The definition is for “neurotherapy:”

The practice of neurofeedback therapy is the use of sensitive instruments to measure electrophysiological processes with the purpose of reporting results to the person measured to assist the person in controlling these processes. This can be a way to learn stress management and relaxation to prevent stress related disorders, or to reduce or eliminate the symptom of many syndromes…. [and also for] progressive relaxation, autogenic training, imagery….

The bill provides for title licensure:

Only a person licensed or authorized pursuant to this Article to practice neurofeedback shall use the title “neurofeedback therapist.”

Are Licensed Practitioners of Neurofeedback Worse off than Non-Licensed Practitioners

Because of all the confusion around licensure of professions such as hypnosis / hypnotherapy, biofeedback, energy healing, and neurofeedback / neurotherapy, not to mention weight loss coaching, health coaching, life coaching, and nutritional practices, some believe that non-licensed practitioners are better positioned under the law than licensed providers.

While this is a matter perspective, each practitioner is subject to the law, and the licensing laws go back to the late 19th-century and are interpreted very broadly. Remember that exceeding scope of practice equals unlicensed practice of another profession.

To quote one online comment:

We happen to be well-off in California, which has a law that makes provision for allied health professionals who are unlicensed. They cannot be challenged simply by virtue of being unlicensed. But the provisions of the Business and Professional Code apply. A few states, such as New York, Virginia, Texas, and Utah do impose certain conditions on the practice of biofeedback, but this appears to be the exception rather than the rule. Undoubtedly there will be moves within the states to restrict the right to practice once the value of this therapy is more broadly recognized.

It is true that California grants leeway to non-licensed practitioners.

At the same time, this does not mean that non-licensed neurofeedback practitioners “cannot be challenged.” As noted, they can be challenged for unlicensed practice of medicine or psychology or potentially another profession.

Licensed providers can be challenged for exceeding scope of practice.

The horns of the dilemma are, simply, that, as I expressed in my book, Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives, the law does not adopt a holistic model of health; the law carves patients into parts, and assigns the various parts to different providers (i.e., muscle to the massage therapist, the spine to the chiropractor, the mind and emotions to the psychologist, and everything to the medical doctor). Is this the wisdom of good clinical practice in the best interest of the patient—or politics?

(This is a rhetorical question.) At the same time, the profession itself must carve out the path ahead (see next section). Both non-licensed and licensed practitioners have interests, and there is also the interest of the State, under the 10th Amendment, of protecting health, safety, welfare and morals.

Consider:

For most of the last twenty years, a licensed professional was taking a risk with his reputation to undertake neurofeedback. The burden of nurturing growth in the field largely fell to unlicensed professionals. It would be unseemly now to just dump these people overboard, and to harass them with legal sanctions. In the real world, then, a path forward must be found for the participation of the unlicensed professional who has been enticed into this field by its vast promise.

Siegfried Othmer, The Unlicensed Practitioner Again

The Path Ahead for Neurofeedback Law

The path ahead for neurofeedback law – for neurofeedback lawyers – is, more than likely, the same as for other professions.

There is probably a turf battle in the offing: psychiatrists vs. psychologists vs. non-licensed practitioners. And some legislative drafting and lobbying. The profession will carve out its own boundaries, and then work to create order of chaos, both internally and externally (through legislation). Scope of practice will have to be negotiated

The trajectory will follow that of comrades in chiropractic, acupuncture, and other licensed professions, and that of modalities such as hypnosis and biofeedback.

To quote the poet Gerard Manley Hopkins:

Generations have trod, have trod, have trod;

And all is seared with trade; bleared, smeared with toil;

And wears man’s smudge and shares man’s smell: the soil

Is bare now, nor can foot feel, being shod.

Could he be describing the legislative process of a profession aiming for recognition?

Hopkins is also optimistic:

And for all this, nature is never spent;

There lives the dearest freshness deep down things….

We will unlock the power of the human brain, and bring the knowledge like the fire of Prometheus from the gods to everyday potential.

Michael H Cohen, healthcare attorneyMichael H Cohen, Founder

The Los Angeles / San Francisco / Bay Area-based Michael H Cohen Law Group provides healthcare legal and FDA legal & regulatory counsel to health & wellness practices and ventures, including health technology companies (medical devices to wearable health and nanotech), healthcare facilities (from medical centers to medical spas), and healthcare service providers (from physicians to psychologists). Our legal team offers expertise in corporate & transactional, healthcare regulatory & compliance, online HIPAA compliance training, and healthcare litigation and dispute resolution, in cutting-edge areas such as anti-aging and functional medicine, telemedicine and e-health, and concierge medicine. Our Founder, attorney Michael H. Cohen, is an author, speaker on healthcare law and FDA law, and internationally-recognized thought leader in the trillion-dollar health & wellness.

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