Acupuncture: Not an “essential health benefit” in the Patient Protection and Affordable Care Act

This week, the Supreme Court is hearing a case that can only be described as historic. Any of you out there (in the U.S. anyway; I realize that my readership is international) who have paid even a passing attention to the news can’t help but avoid reporting, debate, and polemics related to the Patient Protection and Affordable Care Act (PPACA), which is often disparagingly referred to as “Obamacare.” If the law is upheld, or even if most of the law is upheld, it will radically reshape health insurance in this country. Having spent 13 years in the trenches at cancer centers that see a high percentage of uninsured patients, I’ve come to the view that I hope the law is given a chance to go into full effect, because what we were doing before sure wasn’t working. Our health care system is the worst of both worlds, a fusion of the worst aspects of the free market system and a government-controlled system.

Be that as it may, if the PPACA is upheld, there will be a potential side effect that, for all the potential benefits of the new law, would be a downside. I’m referring, of course, to the parts of the law that are a little too woo-friendly. While it’s true that there are some aspects of the law that are very friendly to evidence-based medicine, such as requiring comparative effectiveness research to identify the most cost-effective and efficacious therapies and interventions, the emphasis on whole patient care, although welcome, can be easily perverted by promoters of unscientific “complementary and alternative medicine” (CAM) or “integrative medicine” modalities to allow a “foot in the door” for dubious therapies. This is exactly what we see happening right now, as I’ve been made aware of a campaign by the the American Association of Acupuncture and Oriental Medicine (AAAOM) to rally support to pressure the Secretary of Health and Human Services Kathleen Sebelius to include acupuncture as one of the “essential health benefits” that insurance must cover.

For those of you not familiar with PPACA provisions, EHBs fall into the following categories:

  • Ambulatory patient services
  • Emergency services
  • Hospitalization
  • Maternity and newborn care
  • Mental health and substance use disorder services, including behavioral health treatment
  • Prescription drugs
  • Rehabilitative and habilitative services and devices
  • Laboratory services
  • Preventive and wellness services and chronic disease management
  • Pediatric services, including oral and vision care

The specific services that must be covered as EHBs in each category have not yet been determined. In December, the Secretary of HHS released a bulletin describing the process and approach HHS will take to the rule making necessary to define what will be EHBs under the PPACA. This is a big deal, because under the law EHBs must be covered without co-pays, deductibles, or other insurance. To aid her in developing guidelines for determining what treatments should and should not be included as an EHB, HHS Secretary Sebelius charged the Institute of Medicine (IOM) with developing criteria and methods for choosing EHBs that balance effectiveness and cost. Indeed, the title of the report, released last October, is Essential Health Benefits: Balancing Coverage and Cost. As part of its report, the IOM recommended that any EHB must:

  • Be safe–expected benefits should be greater than expected harms..
  • Be medically effective and supported by a sufficient evidence base, or in the absence of evidence on ef- fectiveness, a credible standard of care is used.
  • Demonstrate meaningful improvement in outcomes over current effective services/treatments
  • Be a medical service, not serving primarily a social or educational function.
  • Be cost effective, so that the health gain for indi- vidual and population health is sufficient to justify the additional cost to taxpayers and consumers.

By these criteria, the vast majority of CAM modalities would fail miserably. However, that doesn’t stop CAM practitioners from trying to persuade Sebelius to include their favored woo as an EHB. For instance, which is exactly what acupuncturists and practitioners of traditional Chinese medicine appear to be doing. For example, here is what the AAAOM urges its supporters to do:

The AAAOM strongly supports designating acupuncture as an EHB. Our full position statement is available in the Governance section of our website at If you are able to contribute financial support to this effort, which will be solely used to further publicize and generate action on this issue, please click here or contact us. To participate in committee work or related research projects, please contact us at [email protected]

Public Input is Needed: The Department of Health and Human Services (HHS) is currently accepting input regarding their approach to establishing EHBs. A strong public show of support for acupuncture as an essential health benefit will be noticed by policymakers and will lay a solid foundation for future federal acupuncture initiatives.

Take action now: Ask your patients to send an email to the address below to show their support for EHB. Also, send your own email as a patient showing your support. Emails should request that acupuncture be designated as an essential benefit service and should share the benefits of acupuncture and its cost effectiveness.

I realize that the deadline has passed in some cases

I took a look a the white paper that AAAOM has produced in support of making acupuncture an EHB. It’s chock full of the usual fallacious arguments, cherry picked science, and lists of dubious studies that I and others have deconstructed in great detail before. Adenosine study? Check. It’s there. Referral to the use of acupuncture in the miltary? (Damn you, Dr. Col. Niemtzow!) Check. It’s there. Acupuncture for migraine? Check. it’s there. And so much more is as well.

I might have to deconstruct the AAAOM position paper in detail, but that would take one of my epic Orac-length posts, or even possible more than one. So that will have to wait for a future post, either here or at my not-so-super-secret other blog. In the meantime, here’s how the government should look at EHBs. Not that it actually will look at them this way, given the political pressure that will be brought to bear to persuade them to fund woo, but this is how they should look at it. The FDA does not approve drugs or treatments that do not produce results better than placebo or sham interventions. That is a principle that almost everyone with any science-based inclination whatsoever should be able to agree on, and it’s an easy principle to explain to legislators, cabinet secretaries, and bureaucrats.

Once that principle is accepted as a starting point, there is no rationale for accepting acupuncture as one of the government-mandated EHBs because not only does it fail each and every one of the five criteria, particularly the one about being a medical intervention and not serving primarily as a social or educational intervention, but it is placebo medicine. As I have documented over the course of the last seven years as I’ve analyzed numerous acupuncture studies, when you look closely at the clinical evidence for acupuncture, it is most consistent with placebo medicine. It doesn’t matter where you stick the needles. It doesn’t even matter if you stick the needles in. (Remember the rather inconvenient study that found that twirling toothpicks against the skin actually worked better than acupuncture.) Add to that the fact that meridians don’t exist and there is no plausible physiological mechanism through which acupuncture could work, and the conclusion is inescapable: Acupuncture is placebo medicine. By policy the government does not approve placebo medicine. Indeed, there is a very long history of such a policy in the FDA and the laws that the FDA uses to regulate drugs and devices. Why should the PPACA produce a loophole through which placebo medicine can not only be given the imprimatur of government approval but be paid for by the government.

The answer is easy. It shouldn’t.

None of this, unfortunately, means that the government will actually be consistent in this, unfortunately. With interest groups like the AAAOM and many others lobbying the HHS and woo-friendly legislators like Senators Tom Harkin and Orrin Hatch doing everything in their power to promote “holistic” modalities based more on magical thinking than science. From a science-based standpoint there’s a lot to like in the PPACA, particularly the parts that emphasize developing evidence to identify the most effective treatments. However, how those parts of the law are interpreted and what rules they result in are everything.
Whenever politics is involved, there’s no guarantee that when the rubber hits the road evidence won’t mean as much as the law says it should.