BILL ANALYSIS                                                                                                                                                                                                    







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          | Hearing Date:April 13, 2009   |Bill No:SB                       |
          |                               |294                              |
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               SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC  
                                     DEVELOPMENT
                        Senator Gloria Negrete McLeod, Chair

                     Bill No:        SB 294Author:Negrete McLeod
                   As Amended:March 31, 2009          Fiscal: Yes

          
          SUBJECT:   Nurse practitioners.
          
          SUMMARY:  Allows implementation of standardized procedures  
          authorizing a nurse practitioner to perform specific  
          functions.

          Existing law:

          1)Establishes the Nursing Practice Act which provides for  
            the certification and regulation of nurses, nurse  
            practitioners and nurse-midwives by the Board of  
            Registered Nursing (BRN) and requires the BRN to  
            establish categories and standards for nurse  
            practitioners in consultation with specified health care  
            practitioners, including physicians and surgeons.  

          2)Defines the practice of nursing as those functions,  
            including basic health care, that help people cope with  
            difficulties in daily living that are associated with  
            their actual or potential health or illness problems, and  
            that require a substantial amount of scientific knowledge  
            or technical skill, as specified.

          3)Defines standardized procedures to mean either of the  
            following:

             a)   Policies and protocols developed by a licensed  
               health facility, as defined, through collaboration  
               among administrators and health professionals  
               including physicians and nurses.






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             b)   Policies and protocols developed through  
               collaboration among administrators and health  
               professionals, including physicians and nurses, by an  
               organized health care system which is not a licensed  
               health facility.  Specifies that the policies and  
               protocols shall be subject to any guidelines for  
               standardized procedures that the Medical Board of  
               California (MBC) and the BRN may jointly promulgate.   
               If promulgated, the guidelines shall be administered  
               by the BRN..

          4)Defines by regulation that a nurse practitioner is a  
            registered nurse who possesses additional preparation and  
            skills in physical diagnosis, psychosocial assessment,  
            and management of health-illness needs in primary health  
            care, and who has been prepared in a program that  
            conforms to BRN standards, as specified.  Defines primary  
            health care as that which occurs when a consumer makes  
            contact with a health care provider who assumes  
            responsibility and accountability for the continuity of  
            health care regardless of the presence or absence of  
            disease.  

          5)Prescribes standards and conditions for the use of the  
            title "nurse practitioner."  Prohibits a person from  
            advertising or holding himself or herself out as a nurse  
            practitioner who is not a licensed nurse and does not  
            meet the standards for a nurse practitioner as  
            established by the BRN. 

          6)Authorizes nurse practitioners to furnish or order drugs  
            under certain conditions, pursuant to standardized  
            procedures or protocols and under the supervision of a  
            physician and surgeon.  Prohibits construing physician  
            and surgeon supervision to require physical presence of  
            the physician, but does include a) collaboration on the  
            development of the standardized procedure, 
          b) approval of the standardized procedure, and c)  
            availability by telephonic contact at the time of patient  
            examination by the nurse practitioner.

          7)Requires an applicant for disability to establish medical  
            eligibility for disability benefits to be supported by a  
            certificate of a treating physician or practitioner that  
            establishes sickness, injury, or pregnancy of an  
            employee.





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          This bill:

          1)Authorizes the implementation of standardized procedures,  
            pursuant to existing law, allowing a nurse practitioner  
            to perform the following functions:

             a)   Order durable medical equipment, subject to any  
               limitations set forth in the standardized procedures.   
               Specifies that this authority does not limit the  
               ability of a third-party payor to require prior  
               approval.

             b)   Certify disability, as specified, after performance  
               of a physical examination by the nurse practitioner  
               and collaboration with a physician and surgeon.

             c)   Approve, sign, modify or add to a plan of treatment  
               or plan of care for individuals receiving home health  
               services or personal care services after consultation  
               with the treating physician and surgeon.

          2)Specifies that the functions specified in item #1) above  
            are in addition to any other practices that meet the  
            general criteria set forth in statute or regulation for  
            inclusion in standardized procedures developed through  
            collaboration among administrators and health  
            professionals, including physicians and surgeons and  
            nurses.

          3)Specifies that this bill should not be construed to  
            affect the validity of any standardize procedures and  
            protocols in effect prior to the enactment of this  
            section or those adopted subsequent to enactment of this  
            bill

          4)Makes legislative findings and declarations on the need  
            to clarify that standardized procedures and protocols may  
            include specified services and functions.
           
          FISCAL EFFECT:  Unknown.  This bill has been keyed "fiscal"  
          by Legislative Counsel.

          COMMENTS:
          
          1)Purpose.  According to the Sponsor, the  California  





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            Association of Nurse Practitioners  (CANP), this measure  
            codifies specific minimum duties that a nurse  
            practitioner  may  perform under a standardized procedure.   
            Existing law authorizes nurse practitioners (who are  
            registered nurses who have advanced education and  
            training and have been certified by the BRN as a nurse  
            practitioner to provide services beyond the scope of a  
            registered nurse utilizing the standardized procedure.   
            The standardized procedure is developed collaboratively  
            with the physician and the facility that the nurse  
            practitioner works with.  CANP points out that existing  
            law is silent on which specific duties a nurse  
            practitioner may perform and instead allows these duties  
            to be delineated in the standardized procedure, which  
            serves as the governing document outlining the duties a  
            nurse practitioner may perform in his or her practice  
            setting.  Many physicians rely upon nurse practitioners  
            to handle the routine health care needs of their patients  
            and delegate great responsibility to them.  However,  
            because ambiguity exists in current law as to what duties  
            may be performed under a standardized procedure, many  
            nurse practitioners experience bureaucratic barriers  
            which then delay consumers access to timely care.  For  
            example, a physician may authorize a nurse practitioner  
            to order durable medical equipment for his or her  
            patients as needed and may have outlined this in the  
            standardized procedure.  However, because existing law is  
            silent on the ability of nurse practitioners to order  
            these supplies, third party payers and suppliers often  
            reject an order placed by a nurse practitioner.  This  
            typically results in the patient being required to come  
            back to the office, be seen by the physician, and then  
            the physician must re-place the order; all of this  
            results in a delay in the patient receiving needed care. 

          2)Background.  

             a)   History of Nurse Practitioners.   A report  
               published by the Center for the Health Professions of  
               the University of California, San Francisco entitled  
               Overview of Nurse Practitioner Scopes of Practice in  
               the United States (UCSF report), indicates that the  
               nurse practitioner profession originated in the  
               mid-1960's in response to a nationwide shortage of  
               physicians.  The University of Colorado's School of  
               Nursing developed the first nurse practitioner program  





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               as a master's degree curriculum in 1965.  Initial  
               programs that subsequently followed were programs in  
               pediatrics.  In California, the first nurse  
               practitioner training program was established in 1972  
               by the University of California, Los Angeles, and in  
               1976 the BRN initiated voluntary nurse practitioner  
               certification.  The UCSF report cited that according  
               to the most recent United States Department of Health  
               and Human Services Sample Survey Report in 2004, there  
               were an estimated 141,209 nurse practitioners in the  
               U.S., an increase of 38,560 from 2000.   According to  
               the BRN, there are currently 14,579 active nurse  
               practitioners in California, and 23 California  
               universities offering nurse practitioner programs.  

             b)   Scope of Practice of Nurse Practitioners.  Current  
               regulations define a nurse practitioner as a  
               registered nurse who possesses additional preparation  
               and skills in physical diagnosis, psychosocial  
               assessment, and management of health-illness needs in  
               primary health care, and who has been prepared in a  
               program that conforms to BRN standards, as specified.   
               The Nursing Practice Act enunciates the scope of  
               practice of nurses, and it states that the practice of  
               nursing includes: direct and indirect patient care  
               services that ensure the safety, comfort, personal  
               hygiene, and protection of a patient; and the  
               performance of disease prevention and restorative  
               measures; direct and indirect patient care services,  
               including, but not limited to, the administration of  
               medications and therapeutic agents, necessary to  
               implement a treatment, disease prevention, or  
               rehabilitation regimen ordered by and within the scope  
               of licensure of a physician, dentist, podiatrist and  
               clinical psychologist; the performance of skin tests,  
               immunization techniques, and the withdrawal of blood  
               from veins and arteries; observation of signs and  
               symptoms of illness, reactions to treatment, general  
               behavior, or general physical condition, and  
               determining whether the signs, symptoms, reaction,  
               behaviors, or general appearance exhibit abnormal  
               characteristics; and implementation, based on observed  
               abnormalities, of appropriate reporting, or referral,  
               or standardized procedure, or changes in treatment  
               regimen in accordance with standardized procedures, or  
               the initiation of emergency procedures.  Standardized  





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               procedures are the legal mechanism for RNs and NPs to  
               perform functions which otherwise would be considered  
               the practice of medicine. Standardized procedures  
               guidelines are to be adhered to by RNs and NPs when  
               performing medical functions.  The standardized  
               procedures must be developed collaboratively by  
               nursing, medicine, and administration in the organized  
               health care system where they will be utilized.  The  
               Medical Practice Act includes diagnosis of mental or  
               physical conditions, the use of drugs in or upon human  
               beings and severing or penetrating tissue of human  
               beings as the practice of medicine. The performance of  
               any of these functions by a registered nurse or nurse  
               practitioner requires a standardized procedure.

             c)   Standardized Procedures and Protocols.  As  
               indicated above, standardized procedures are the legal  
               mechanism for registered nurses or nurse practitioners  
               to perform functions which would otherwise be  
               considered the practice of medicine.  Standardized  
               procedures and protocols are policies and protocols  
               developed by a health facility, as specified, or by an  
               organized health care system, developed through  
               collaboration with the administration, physicians and  
               nurses.  Standardized procedures must include a  
               written description of the method used in developing  
               and approving them and any revision thereof.   
               According to the BRN, each standardized procedure  
               must: (1) be in writing, dated and signed by the  
               organized health care system personnel authorized to  
               approve it; (2) specify which standardized procedure  
               functions registered nurses may perform and under what  
               circumstances; (3) state any specific requirements  
               which are to be followed by registered nurses in  
               performing particular standardized procedure  
               functions; (4) specify any experience, training,  
               and/or education requirements for performance of  
               standardized procedure functions; (5) establish a  
               method for initial and continuing evaluation of the  
               competence of those registered nurses authorized to  
               perform standardized procedure functions, 
             (6) provide for a method of maintaining a written record  
               of those persons authorized to perform standardized  
               procedure functions; (7) specify the scope of  
               supervision required for performance of standardized  
               procedure functions, for example, telephone contact  





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               with the physician; (8) set forth any specialized  
               circumstances under which the registered nurse is to  
               immediately communicate with a patient's physician  
               concerning the patient's condition; (9) state the  
               limitations on settings, if any, in which standardized  
               procedure functions may be performed; (10) specify  
               patient record-keeping requirements; and (11) provide  
               for a method of periodic review of the standardized  
               procedures.  If a registered nurse or nurse  
               practitioner undertakes a procedure without the  
               competence to do so, such an act may constitute gross  
               negligence and be subject to discipline by the BRN.

             d)   Training and Education of Nurse Practitioners.   
               Existing law requires a nurse practitioner must be a  
               licensed nurse, complete a nurse practitioner program  
               approved by the BRN and possess a master's degree in  
               nursing, a master's degree in a clinical field related  
               to nursing, or a graduate degree in nursing.  Current  
               regulations specify that a nurse practitioner  
               curriculum must include all theoretical and clinical  
               instruction necessary to enable the graduate to  
               provide primary health care for consumers, training  
               for practice in an area of specialization which shall  
               be broad, not only to detect and control presenting  
               symptoms, but to minimize the potential for disease  
               progression, and may be a full-time or part-time  
               program and shall be comprised of not less than 30  
               semester units (or 45 quarter units), which shall  
               include theory and supervised clinical practice.   
               Supervised clinical practice requires demonstration of  
               and supervised practice of correlated skills in the  
               clinical settings with patients, and at least 12 or 18  
               quarter units must be in clinical practice.  The  
               curriculum must include pathophysiology, comprehensive  
               physical examination, psycho-social assessment,  
               interpretation of laboratory finds, evaluation of  
               assessment date to define health and developmental  
               problems, pharmacology, nutrition, disease management,  
               and initiating and providing emergency treatments.
              
              e)   Furnishing or Ordering of Drugs or Devices.   
               Currently, a nurse practitioner may furnish or order  
               drugs, including Schedules II-V controlled substances  
               under physician and surgeon supervision.  Physician  
               and surgeon supervision shall not be construed to  





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               require the physical presence of the physician, but  
               does include: i) collaboration on the development of  
               standardized procedures; ii) approval of the  
               standardized procedure , and iii) availability by  
               telephonic contact at the time of patient examination  
               by the nurse practitioner.  Current law limits the  
               number of nurse practitioners a physician could  
               supervise to four.    
              
           3)Other states.  The UCSF report points out that  
            educational requirements, certification mechanisms and  
            legal scopes of practice are decided at the state level  
            and vary considerably.  The variances are mostly evident  
            in physician affiliation, the ability to diagnose, treat  
            and refer, and prescriptions.  According to the UCSF  
            report, most states require nurse practitioners to  
            practice in collaboration with a physician, or under a  
            physician's direct supervision, and few states permit  
            nurse practitioners to practice independently without any  
            physician involvement.  Alaska, Arizona, New Hampshire,  
            New Mexico, Oregon and Washington have some of the  
            nation's most expansive scope of practice, where the  
            nurse practitioners practice without physician oversight  
            and may prescribe drugs without physician involvement.   
            The UCSF report pointed out that inconsistency in nurse  
            practitioner scope of practice among states may impede  
            the uniform expansion of nurse practitioner services,  
            prohibit nurse practitioners from providing in full  
            measure the medical care for which they are trained, and  
            inhibit the robust use of nurse practitioners in helping  
            alleviate shortages of primary care providers. 

          4)Workforce Shortages in California.  One of the reasons  
            provided to justify extending the scope of practice of  
            nurse practitioners is the current shortage of physicians  
            nationally, and in California specifically.  However,  
            workforce shortages exist not only for physicians but  
            also for nurses.  The 2007 Final Report of the Advisory  
            Council on Future Growth in the Health Professions by the  
            University of California (UC report) indicates that  
            California has existing shortages in many health  
            professions, and looming shortages in others.   
            Specifically, the report pointed out that California is  
            expected to face a shortfall of up to 17,000 physicians  
            by 2015. This shortage is due to overall population  
            growth, aging of the current physician workforce, and the  





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            lack of growth in medical education programs in  
            California.  Regional shortages of physicians already  
            exist and are expected to become more severe,  
            particularly in areas that will have the most rapid rates  
            of growth over the next decade.  A 2006 report by the  
            United States Department of Health and Human Services  
            entitled Physician Supply and Demand: Projections to 2020  
            indicated that over the next 15 years, requirements for  
            physician services will grow faster than supply,  
            especially for specialist services and specialties that  
            mostly serve the elderly.   Aside from the growing  
            shortage of physicians, California's nursing workforce  
            crisis is growing.  The UC report pointed out that the  
            state currently ranks 49th in the nation in the number of  
            nurses per capita.  In 2005, predictions estimated that  
            California would have a shortfall of 60,000 registered  
            nurses by 2020.  A more recent federal study issued in  
            April 2006 predicts that California will face a shortfall  
            of 47,600 nurses by 2010 and a shortfall of 116,600 by  
            2020.  The current workforce shortage in the health care  
            arena is compounded by the growing number of the elderly  
            population.  

          5)Previous Legislation.

              a)   AB 1436  (Hernandez) of   2008 defines the scope of  
               practice of nurse practitioners and authorizes a nurse  
               practitioner to provide comprehensive health care  
               services, as specified.  This bill was heard in this  
               Committee but was not voted on.  
              
              b)   SB 809  (Ashburn) of 2007, defines the scope of  
               practice of nurse practitioners and authorizes nurse  
               practitioners to perform specified acts.  This bill  
               was never heard and died in this Committee pursuant to  
               Joint Rule 56.

              c)   AB 1643  (Niello) of 2007, would repeal the  
               prohibition against a physician and surgeon  
               supervising more than four nurse practitioners at one  
               time for purposes of furnishing or ordering drugs or  
               devices.  This bill was never heard and died in the  
               Assembly Committee on Business and Professions.

              d)   AB X1 1  (Nunez) of 2008, would among other things,  
               establish a nine-member Task Force on Nurse  





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               Practitioner Scope of Practice, with specified  
               membership, to develop a recommended scope of practice  
               for nurse practitioners by June 30, 2009, and would  
               require the Director of Consumer Affairs to promulgate  
               regulations, consistent with existing law, that adopt  
               the Task Force's recommended scope of practice by July  
               1, 2012.  ABX1 1 failed passage in the Senate Health  
               Committee.

              e)   AB 2226  (Spitzer) Chapter 344, Statutes of 2004,  
               require on and after January 1, 2008, an applicant for  
               initial qualification or certification as a nurse  
                                                                                    practitioner to meet specified requirements including  
               possessing a master's degree in nursing, a master's  
               degree in a clinical field related to nursing or  
               graduate degree in nursing and completion of a nurse  
               practitioner program approved by the BRN.

              f)   AB 2560  (Montanez) Chapter 205, Statutes of 2004,  
               authorized a nurse practitioner to furnish drugs or  
               devices whenever it is consistent with their  
               educational preparation or clinical competency.   

          6)Arguments in Support.  Supporters, including the  United  
            Nurses Associations of California  , indicate that this  
            bill will clarify the role of nurse practitioners,  
            promote their full utilization and improve access to  
            care.

          7)Arguments in Opposition.   The  California Academy of  
            Family Physicians  opposes this bill but does not indicate  
            the reasons for its opposition. 
          




          SUPPORT AND OPPOSITION:
          
           Support:  

          California Association of Nurse Practitioners (Sponsor)
          Numerous individuals, including nurse practitioners

            Opposition:  






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           California Academy of Family Physicians



          Consultant:Rosielyn Pulmano