Neurofeedback has been shown effective for treating of a variety of physical and mental disorders, but can or should neurofeedback (or any promising therapy that can be self-administered, or administered by non-licensee) be regulated and r
elegated to a licensed monopoly? This is the question elegantly raised by Siegfried Othmer, PhD, founder of The EEG Institute, in the guest post below.
By way of background, EEG Institute explains:
Neurofeedback is direct training of brain function, by which the brain learns to function more efficiently. We observe the brain in action from moment to moment. We show that information back to the person. And we reward the brain for changing its own activity to more appropriate patterns. This is a gradual learning process. It applies to any aspect of brain function that we can measure. Neurofeedback is also called EEG Biofeedback, because it is based on electrical brain activity, the electroencephalogram, or EEG. Neurofeedback is training in self-regulation. It is simply biofeedback applied to the brain directly. Self-regulation is a necessary part of good brain function. Self-regulation training allows the system (the central nervous system) to function better.
Neurofeedback addresses problems of brain disregulation. These happen to be numerous. They include the anxiety-depression spectrum, attention deficits, behavior disorders, various sleep disorders, headaches and migraines, PMS and emotional disturbances. It is also useful for organic brain conditions such as seizures, the autism spectrum, and cerebral palsy.
We apply electrodes to the scalp to listen in on brainwave activity. We process the signal by computer, and we extract information about certain key brainwave frequencies. (All brainwave frequencies are equal, but some are more equal than others…) We show the ebb and flow of this activity back to the person, who attempts to change the activity level. Some frequencies we wish to promote. Others we wish to diminish. We present this information to the person in the form of a video game. The person is effectively playing the video game with his or her brain. Eventually the brainwave activity is “shaped” toward more desirable, more regulated performance. The frequencies we target, and the specific locations on the scalp where we listen in on the brain, are specific to the conditions we are trying to address, and specific to the individual.
Dr. Othmer is currently Chief Scientist of the EEG Institute and President of the Brian Othmer Foundation.
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BSC 2014: Who owns neurofeedback?
During a business lunch at the conference the regulation of neurofeedback was a topic of discussion because of the effort of the Nevada Psychology Board to extend its control over biofeedback and neurofeedback within that State. A “cease-and-desist” letter had been sent around to neurofeedback practitioners who are not psychologists. Apparently such initiatives are underway in other states as well. The term regulatory capture has been used to describe industry control of the very agencies in Washington who are ostensibly doing the regulating. What we have here is ‘regulatory capture’ of another kind. It needs to be nipped in the bud.
John LeMay attended the conference from Nevada, and related his personal story. He did in fact shut down his office in response to the officious correspondence, but then became engaged on the issue. For the moment, matters have returned to status quo ante, and he is back in practice, because the Deputy Attorney General became persuaded that the initiative lacked merit. But the Attorney General position is an elected office, and policies can change.
Apparently a new initiative is under consideration in which the psychology board gets to regulate the practice of BF/NF even among non-psychologists. This is simply preposterous. Psychologists had their chance forty years ago to adopt biofeedback and to shape the development of the field. Many if not most university psychology departments even had their own biofeedback labs. Eventually those just fell into disuse and gathered dust. There was no groundswell of interest in working with physiological measures, regardless of how helpful they might be in providing relief to clients and in support of psychotherapy. Insurance companies did not make it any easier. The separate coding for biofeedback made it difficult to integrate these technologies smoothly into psychology practice.
When Joel Lubar first made the case for the use of neurofeedback in connection with conditions of interest to neuropsychologists, he was attacked more bitterly by psychologists than by anyone else. The neuropsychologists have never shown up in any great numbers over years. In the early years we were consistently fighting the psychology boards who were bringing psychologists up on charges of practicing neurofeedback under the umbrella of psychology.
This did not end until the mid-nineties, when the APA ruled that neurofeedback constituted a special competence within psychology, one for which special training was required. The intention here was to stop the state organizations from proceeding against individual psychologists simply because they were doing neurofeedback. I was involved with this change of policy within the APA at that time. The moving force in that effort was a psychologist in Colorado who had trained with us and was using our instrument, and another such psychologist in Cleveland.
Subsequently, there was an initiative to set up course requirements that would then lead to a setting of standards against which competence could be appraised. I was involved on that committee. The APA abandoned that effort, which can be taken to mean that the decision was made not to incorporate neurofeedback into the field of psychology.
Some years later, there was a proceeding in the State of Vermont by the Psychology Board against a non-psychologist practicing neurofeedback. I participated in that proceeding, and the outcome was that the Board decided neurofeedback did not constitute the practice of psychology. The vote was not unanimous, however.
A number of states have made it illegal for psychologists to touch their clients. It is obvious, then, that no one anticipated a need for psychologists to touch their clients in order to do their work. After all, these laws were established with the support of the respective psychology boards. It is difficult to imagine how psychologists could now claim to be the custodians of both biofeedback and neurofeedback. If protection of the public is the issue (the usual argument), then that need has existed for forty years. More than likely, the impetus comes from seeing a commercial opportunity.
Finally, it must be said that the leading psychologists within our field objected to the encroachment of neurofeedback into the core concerns of psychology. The claim that neurofeedback could be used effectively with anxiety and depression was fiercely resisted for years, and the controversy about working effectively with Bipolar Disorder using neurofeedback has yet to subside. The existence of such controversies even among those psychologists who have the greatest affinity for neurofeedback indicates that neurofeedback and psychology occupy distinct domains and represent distinct competences.
Both biofeedback and neurofeedback range over many concerns that are not encompassed within the field of psychology. One might well ask what would qualify psychologists uniquely to work with chronic pain syndromes and sleep disorders, seizure management and brain injury, fetal alcohol syndrome and cerebral palsy, reflux and constipation, asthma and migraine, bruxism and TMJ, bulimia and anorexia, autism and Down Syndrome, Tourette Syndrome and OCD, mental retardation and dementia, dyslexia and speech deficits, Parkinson’s and essential tremor, ptosis and blepharospasm, enuresis and encopresis, Raynaud’s and carpal tunnel syndrome, hypoglycemia and Type II diabetes, POTS and PANDAS?
What has developed over the decades is a body of knowledge that is perhaps best described by the term “applied psychophysiology.” This clinical domain is intrinsically cross-disciplinary. Members of several professions can justly claim that their own professional training has given them a perspective on BF/NF that they find indispensable to their own work. That is to be expected. They each came to neurofeedback with an established worldview, and they all incorporated neurofeedback into that existing framework.
Their current “working knowledge” of BF/NF can no longer be separated from their own professional background. Of course the same can be said—and has been said to us frequently—about a number of the health professions. Indeed, they do each bring something to the table that contributes to the quality of BF/NF practice. However, none can claim exclusivity or even priority in that regard. They each bring something different, and each element is seen as indispensable by the people involved.
One might say that biofeedback and neurofeedback are intrinsically integrative disciplines, drawing on a variety of perspectives and in turn impinging on the entire realm of health care. This requires an interface with all of the health professions, which raises the question of how such an interface might be facilitated. Would a new licensure in “applied psychophysiology” now be an adequate response to the challenges starting to confront us? Or would that merely aggregate all of the pathologies that go along with the licensure regime and replicate them all over again?
I try to approach this question by asking another: If licensure is to happen, would it be better if it happened sooner rather than later? With the unsettled state of the field, it seems clear that licensure presently is premature. It would lock things into place while matters are still in creative flux. But I also expect the field to remain in an unsettled state for some while. Neurofeedback is not like acupuncture in that regard. So the farther off licensure can be pushed, the better. The threat of the established professions trying to nail down proprietorship of BF/NF could certainly change that calculus. We will do what we have to do.
If there is any health discipline that deserves to be unencumbered by licensure it is ours. We fish in all waters. We need an open “Law of the Sea” for mental health. Consider once again the perspective of those who have adopted neurofeedback while being thoroughly grounded in their own discipline. No doubt they hold the view that the addition of BF/NF has enhanced their professional competence and clinical reach as neurologists, psychiatrists, psychologists, MFTs, OTs, PTs, nurses, LCSWs, DOs, naturopaths, acupuncturists, practitioners of Traditional Chinese Medicine, chiropractors, etc. Most likely they would agree that their own discipline would benefit from the knowledge that BF/NF has afforded them, and that the lack of a perspective on our self-regulatory capacity is a constraint on thinking within their respective disciplines.
It follows that what is really needed here is a thoroughgoing transformation of healthcare through an appreciation of the brain’s capacity for self-regulation. This understanding needs to be infused into the DNA of the other professions. The thrust toward licensure would lead instead to locking up the technology within yet another class of professionals that stands in competition with all the others for the healthcare dollar.
Indeed licensure represents the life raft for the unlicensed professional, and I am sympathetic to their cause. They should not be shouldered out of the field. Licensure also formalizes and legitimizes independent practice, and thus enhances the status, of applied psychophysiology. But we are seeing the pace of innovation exceed the capacity of the regulatory institutions to keep up. It may well be the case that we are coming to the end of the licensure regime because it can no longer measure up. In that case, it would be a mistake to align ourselves with regulatory frameworks that apply to another age.
The core pathology of our existing system of health care is its grounding in the disease model. The compartmentization inherent in this model is breaking down, however, with increasing awareness of such issues as the gut-brain connection, toxic influences on brain function, epigenetic factors, de novo mutations, nutritional influences, etc. The crisis atmosphere enveloping the DSM-V testifies to the breakdown of the disease model in application to mental disorders. The contradictions are largely internal to the model, and yet they are likely to be fatal to the DSM regime over the longer term.
The evolution of the disease-based model will necessarily be in the direction of integrative medicine, which already serves to breach the boundaries of the existing professions. Our own field of BF/NF, however, is inherently oriented to the improvement of our regulatory functions. It therefore fits into a wellness model. It is less concerned with diagnostic distinctions and not concerned at all with diagnostic thresholds. This essential thrust makes it unsuitable for licensure simply because the usual standards of the disease model are not applicable. It is unclear at present which will happen first, the definitive demonstration of efficacy of neurofeedback in application to ADHD (one that satisfies the mainstream), or the abandonment of ADHD as a valid nosological construct.
The organic evolution of our health care regime also requires that the lay public become knowledgeable in self-regulation skills. Biofeedback has always been about empowering the individual through skill development and enhanced awareness. Licensure would instead set up barriers to the diffusion of knowledge to those who need it most. And if the boundary between professional and home practice is diffuse and permeable, it is hardly possible to set up rigid boundaries elsewhere, such as among the professions themselves.
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Michael H. Cohen responds:
Siegfreid Othmer is more than eloquent and savvy about the pros and perils of licensure.
One long-term solution may be legislative action to get neurofeedback included within the scope of what non-licensed practitioners can do in states such as California (CA SB 577, codified in California Business & Professions Code Section 2053.5 – 2053.6), and, distinguish its scope from practice of psychology. Practitioners should find a legislator who has benefited from and believes in the therapy and will champion a bill.
Note that we use the term licensure to cover a multitude of situations. At the low end is simple registration; and below that, practitioners doing what they want so long as they provide disclosure, and, so long as this activity does not constitute unlicensed practice (which is a bit of a tautological definition). This may avoid some of the perils of mandatory licensure, which often comes with stringent regulation of practitioners.
Practically, it may be difficult to gain acceptance for use of neurofeedback by non-licensees to treat diagnosable diseases (such as bipolar disorders); the moment one mentions a disease, one runs the risk of unlicensed practice issues (either medicine or psychology).
There is a slippery linguistic slope (epistemological chaos) – the legal structure simply doesn’t know how to deal with this dichotomy that goes back to the late 19th century between disease treatment, and whatever else remains in holistic health.
At the very least, it would be useful to look at the actual evidence of neurofeedback’s application and benefits, and attempt to differentiate ways of using NF that could be applied by non-licensees (or individuals self-regulating at home), in a registration or disclosure model of regulation, from the kind of specific, therapeutic use that may require additional training which results in licensure as a clinical psychologist or other mental health care professional.
Until legislation is in place that protects unlicensed practice of neurofeedback in any given state, non-licensed practitioners remain at legal peril. This does not necessarily mean that enforcement is widespread, though. By way of analogy, life coaches have managed by the thousands, to operate notwithstanding that psychology licensing laws could, theoretically be applied to them–though every once in a while a case comes to light.
From a policy perspective, encouraging cross-disciplinary exploration of neurofeedback (or any similar therapy) may well require loosening the licensing regime so that licensed and non-licensed practitioners can more freely collaborate, without fear of prosecution.
See also Neurofeedback Laws & Licensing: Unlock Brains’ Potential But Be Legally Safe.
Subsequent note re practice by other professionals:
The issue is whether NF will be considered within the scope of practice of that profession (or intrudes into practice of psychology).
You can look at definitions for the relevant state and profession – (1) statute, (2) Board regulations, (3) cases if any exist (doubtful).
A broad legislative strategy would have to include both non-licensed practice, and scope of practice for licensed practitioners.
Michael
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For more information about neurofeedback training, contact Dr. Othmer’s EEG Institute.
Contact our healthcare law and FDA attorneys for legal advice relevant to your healthcare venture.
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