The following is an article I wrote last week. Originally I intended it as my column in the Journal of Hypnotism for the March 2015 edition. However, as there is legislation being considered in some of the Western States in February, I decided to release this article as an informational essay for my colleagues. It is important that every practitioner understand the differences between the different sorts of hypnotic regulation.
National Guild of Hypnotists
Differences in Regulatory Law
The Rev. C. Scot Giles, DNGH
Recently I’ve had several documents and internet postings come over my desk which show that some colleagues are confused about the different sorts of regulation for the practice of hypnotism.
While this is something I cover each year in my two hour workshop on State Laws and Legal Issues at the National Guild of Hypnotists convention, I felt it would be good to review the issue here. There are a couple of states flirting with the notion of regulating hypnotism as I write this and it would bode ill if colleagues are not clear on what is actually being discussed.
The Great Divide
All forms of professional regulation fall into one of two categories. The first is the sort of law that provide permission for a person to practice hypnotism but do not specify any particular sort of training. These laws are Exemption Acts, Health Freedom Acts and State Registration Acts.
The other sort of law not only provides permission for a person to practice hypnotism but further specifies the sort of training a person must have to do so. These laws are State Certification Acts and State License Acts.
The two categories of laws are very different and should not be confused, although confusion is common when people talk about a Registration Act as “licensing” or make statements that blur the distinction between those laws.
At the present time, all states with active regulation of hypnotism have Exemption Acts, Health Freedom Acts or State Registration Acts. No state has a State License or Certification Act for the practice of hypnotism (although one once did).
An Exemption Act is the simplest form of regulation and they exist in several states. Basically, it consists of wording inserted in a comprehensive license law that says the provisions of the law do not apply to a specific sort of practitioner. For example, my home state of Illinois has wording in the Clinical Psychologist License Act that says the law does not apply to unlicensed persons practicing hypnotism provided they stay within certain boundaries and do not offer to provide the services of professional psychology that are listed in another section of that law.
There is a lot to be said for Exemption Acts. First, they provide reasonably good protection for the public from unethical practitioners. If you fail to keep your practice within the boundaries of the exemption you become guilty of violating the underlying license law.
For example, we had a hypnotist in Illinois who insisted in calling what he did a form of psychology. Eventually, a complaint was filed and he received a Cease and Desist Order. When he refused to follow it, he was convicted of the unlicensed practice of psychology.
Another nice thing about Exemption Acts is they are inexpensive. They cost the State Government nothing. If the exemption is violated, enforcement falls to an already existing governmental agency (in Illinois that was the Department of Professional Regulation) that is already funded through the state budget.
The down side to an Exemption Act for hypnotists is that your freedom to practice is controlled by wording in the regulatory law of some other profession. It can vanish at the stroke of the legislative pen. You have to be vigilant and watch how laws are amended to be sure your protective exemption doesn’t vanish.
The National Guild of Hypnotists and our union was directly involved in passing Exemption Act in Illinois, where it is explicitly part of the statues. We also were responsible for the Exemption in New Jersey where it is encoded in the Psychology Board Rules.
Health Freedom Acts
Health Freedom Laws are the creation of the National Health Freedom Coalition (www.nationalhealthfreedom.org) and they amount to Exemption Acts but with a huge and important difference.
A Health Freedom Act is a free-standing piece of legislation that says unlicensed persons may practice any of a range of complementary and alternative healing arts provided they hold out their services in a specific way.
Typically, Health Freedom Acts exempt practitioners of a long list of services, from herbalism to energy work, provided they do not hold their services out to the public as medical or psychological services. They require practitioners to give a specific disclosure statement to every customer or client and to follow restrictions in advertising. If you do these things, a Health Freedom Act exempts you from regulation from a list of license laws in your state.
The huge advantage of Health Freedom Acts is that they are independent pieces of legislation. They cannot be changed during a routine amendment to the license law of a specific profession.
They are also inexpensive for the government. If a person violates the terms of the Health Freedom Act they are guilty of violating one of the existing licensing laws. Once again enforcement falls to an existing governmental agency that is already funded in the state budget.
For example, if a herbalist violates the Health Freedom Act by the way he or she advertises services, he or she might be prosecuted for the unlicensed practice of medicine. If a hypnotist did the same, he or she might be prosecuted for the unlicensed practice of psychology. But in all cases the prosecution happens by an agency that already exists. No new costs are added to the state budget.
At the present time Health Freedom Acts exist in Colorado, New Mexico, Arizona, Louisiana, Rhode Island, California, Minnesota, Oklahoma and Idaho. They work well for hypnotists most of the time, the exception being Colorado where specific wording does not allow hypnotists
protection. The National Guild of Hypnotists has a long history of support of the National Health Freedom Coalition.
The only downside to a Health Freedom Act is that they are relatively difficulty to pass. All of the other regulated professions routinely oppose them.
State Registration Acts
Registration Acts are used when a state government wants to impose specific regulation on the way a particular unlicensed professional group does business. They allow anyone who wishes to apply and register. Once registered, you are given freedom to practice provided you pay an annual fee and follow specific behavioral standards. So long as you follow those standards, you keep your registration and your right to practice. However, if you violate those behavioral standards or fail to pay the fee you lose your registration and may no longer practice.
Typically Registration Acts require all the consumer protections found in Health Freedom Acts, but add more restrictions. For example, they may prohibit sexual contact between a practitioner and a client, or may require that everyone registered prove citizenship or that no child-support or traffic violations payments are delinquent.
Registration Acts for hypnotists exist in Washington State, Colorado and Connecticut. The National Guild of Hypnotists was heavily involved in the crafting of the Connecticut law.
Registration Acts have worked well for hypnotists but they are somewhat expensive. Enforcement requires the creation of a new state agency or assigning new duties to an existing state agency. However, the costs are offset by the collection of registration fees. They provide good protection of our right to practice.
State License and State Certification Acts
All of the kinds of regulation mentioned so far have one thing in common. They allow anyone to practice with no requirement on training. Not so State License Acts or State Certification Acts. These laws do specify what sort of training a person has to have in order to practice their profession. Also, many require the passing of an examination given by the state government to prove the training was adequate.
These laws are expensive, and that is the problem. The moment you move from regulating behavior to trying to restrict training you make the cash register in your state capital ring.
With State License Acts the government must set up a licensing Board to oversee issues related to the awarding and maintenance of the licenses. The members of that Board must be compensated. If training is to be required, then some state agency must do “due diligence” to insure the training isn’t bogus and that other requirements are met. That means people must be paid (and given a pension and benefit package) to do it. Further, those people must be supervised and managed, which requires the hiring of more people.
If the License Act requires a test for competence, then a test must be created. To prevent lawsuits claiming the test is biased, the test must pass accepted objective standards for tests and measurements. Then people must be hired to administer and score the test, space must be found to allow people to take the test, and someone must be paid to mail out licenses, keep track of renewals, review disciplinary issues, etc.
All of this gets very expensive, fast.
No state government will pass a License Act if the financial impact review doesn’t add up. There have to be enough people in the state who will apply for the license so that the fees at least pay for the cost of administering the law. If not, the financial burden is shifted to the taxpayer and no politician wants to do that.
In no state have there ever been enough hypnotists so that the fees would offset the cost of administering a License Act. That is why no state has ever had a License Act for hypnotic practitioners. Even in the State of California, where there are more hypnotists per square mile than in any other state, the math doesn’t work. California has a Health Freedom Act.
State Certification Acts are similar to State License Acts except that instead of a separate Licensing Board we have a Certification Committee under an existing Licensing Board. This is less expensive. However there are two enormous downsides.
First, if you allow your profession to be State Certified you are turning over control of your profession to the Licensing Board of another profession.
Second, while cheaper, Certification Acts still cost a bundle.
Only the State of Indiana has attempted a State Certification Act for hypnotic practitioners. It was a disaster. The ink wasn’t even dry on the bill when the Medical Board in control of the Hypnotist Certification Committee began to amend the law to restrict who could practice until almost no one could.
Finally, the law was repealed when a financial review showed that the costs of administering the Act where not even remotely covered by fees, and that the Act was a burden on taxpayers.
I hope the above clarifies the different sorts of regulation that exist in those states that regulate hypnotism and what the issues with each form of regulation are.