BILL ANALYSIS                                                                                                                                                                                                    






                                 SENATE HEALTH
                               COMMITTEE ANALYSIS
                       Senator Ed Hernandez, O.D., Chair


          BILL NO:       SB 233                                      
          S
          AUTHOR:        Pavley                                      
          B
          AMENDED:       March 31, 2011                              
          HEARING DATE:  April 27, 2011                              
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          CONSULTANT:                                                
          3              
          Tadeo                                                      
          3              
                                     SUBJECT
                                         
                          Emergency services and care


                                     SUMMARY  

          Expands the definition of a medical professional who can 
          provide consultation, care, treatment and surgery in an 
          emergency department (ED) setting to include a physician 
          assistant (PA) practicing in compliance with prescribed 
          provisions.  


                             CHANGES TO EXISTING LAW  

          Existing federal law:
          Establishes the Emergency Medical Treatment and Active 
          Labor Act (EMTALA), which governs when and how a patient 
          may be refused treatment or transferred from one hospital 
          to another when the patient is in an unstable medical 
          condition. 
          
          Under EMTALA, permits an on-call physician, under hospital 
          policies, the option to direct a non-physician practitioner 
          or his or her representative to appear at a hospital and 
          provide further assessment or stabilizing treatment to an 
          individual. 
          
          Existing state law: 
                                                         Continued---



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          Requires emergency services to be provided to any person 
          requesting the services or care or for whom services or 
          care is requested, for any condition in which the person is 
          in danger of loss of life or serious injury or illness, at 
          any licensed health facility that maintains and operates an 
          emergency department to provide emergency services to the 
          public when the health facility has appropriate facilities 
          and qualified personnel available to provide the services 
          or care. 
          
          Defines "emergency services and care" as the medical 
          screening, examination, and evaluation by a physician or, 
          to the extent permitted by applicable law, by other 
          appropriate personnel under the supervision of a physician 
          to determine the care, treatment, and surgery by a 
          physician necessary to relieve or eliminate the emergency 
          medical condition or active labor, within the capacity of 
          the facility. 

          Establishes the Physician Assistant Practice Act 
          administered by the Physician Assistant Committee 
          (Committee) of the Medical Board of California (MBC) to 
          regulate physician assistants.

          Provides that a PA may perform those medical services as 
          set forth by the regulations of MBC when the services are 
          rendered under the supervision of a licensed physician and 
          surgeon, except as otherwise provided. 

          Requires a PA and his or her supervising physician and 
          surgeon to establish written guidelines for the adequate 
          supervision of the PA, which may be satisfied by the 
          adoption of protocols for some or all of the tasks 
          performed by the PA.  Requires the protocol to  
          meet specified requirements.

          Authorizes a PA to administer or provide medication to a 
          patient or transmit, orally or in writing on a patient's 
          record or in a drug order, an order to a person who may 
          lawfully furnish the medication or medical device as 
          specified.

          Authorizes a PA, pursuant to a Delegation of Services 
          Agreement (DSA), to order durable medical equipment, 
          certify unemployment insurance disability, and after 




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          consultation with the supervising physician, approve, sign, 
          modify, or add to a plan of treatment or plan of care for 
          individuals receiving home health services or personal care 
          services.  Authorizes PAs to conduct specified medical 
          examinations and sign corresponding medical certificates 
          for various individuals. 

          This bill:
          Expands the definition of "emergency services and care" to 
          clarify that PAs can provide these services by explicitly 
          including them in the definition.
          
          Expands the definition of "consultation" to clarify that 
          PAs can provide these services by explicitly including them 
          in the definition. 


                                  FISCAL IMPACT  

          This bill has not been analyzed by a fiscal committee.


                            BACKGROUND AND DISCUSSION 

          The author states that when it comes to health care access, 
          California is in a crisis. According to the author, 
          emergency rooms across the state are overcrowded and 
          overburdened, and it is important to remove unnecessary 
          barriers to care.  

          According to the author, SB 233 is prompted by a recent 
          situation in which a PA was prohibited from providing a 
          consultation in the ED at Mission Hospital in Orange 
          County.  Although these types of services are commonly 
          authorized by supervising physicians at hospitals, in this 
          case, the hospital pointed out that existing law does not 
          explicitly authorize a PA to perform consulting and 
          treatment services in an ED setting.  

          The author argues that state law is in conflict with 
          EMTALA, which permits PAs to provide consults in the ED, 
          and that SB 233 would make state law consistent with 
          federal law.   The author adds that PAs working in 
          specialty practice areas provide an essential service to 
          the ED, as they can expedite the admission or surgical 




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          preparation of the patient under the supervision of the 
          physician and surgeon, in order to vacate a bed for an 
          incoming ED patient.   The author contends that as long as 
          evaluation, consultation and treatment is performed 
          pursuant to a PA's scope of practice, DSA, and under the 
          supervision of a physician and surgeon, this type of care 
          by a PA is routine and should not be unduly restricted by 
          omissions and lack of clarity in the current definition of 
          emergency services and care in state law.
          
          Emergency Medical Treatment and Active Labor Act (EMTALA)
          EMTALA was passed as part of the Consolidated Omnibus 
          Budget Reconciliation Act of 1986, (COBRA).  Under EMTALA, 
          a patient who comes to, or is brought to the ED must be 
          provided with an appropriate medical screening examination 
          to determine if an emergency medical condition exists.  If 
          an emergency situation is determined, the hospital is 
          obligated to either provide treatment until the patient is 
          stable, or transfer the patient to another hospital in 
          conformance with the statute's directives.
          
          The purpose of EMTALA is to prevent hospitals from 
          rejecting patients, refusing to treat them, or transferring 
          them to charity hospitals or county hospitals because they 
          are unable to pay or are covered under the Medicare or 
          Medicaid programs. This purpose, however, does not limit 
          the extent of its provisions. 
          
          EMTALA applies only to participating hospitals, that is, 
          hospitals that have entered into provider agreements under 
          which they will accept payment from the Department of 
          Health and Human Services and Centers for Medicare and 
          Medicaid Services (CMS) for services provided to 
          beneficiaries.  In practical terms, this means that it 
          applies to virtually all hospitals in the U.S., with the 
          exception of the Shriners Hospital for Children and many 
          military hospitals.  Its provisions apply to all hospital 
          patients and not just to Medicare patients. 
          
          EMTALA permits an on-call physician, under hospital 
          policies, the option of sending a representative, for 
          example, directing a non-physician practitioner or his or 
          her representative to appear at the hospital and provide 
          further assessment or stabilizing treatment to an 
          individual.  According to EMTALA, this determination should 




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          be based on the individual's medical need and the 
          capacities of the hospital, the applicable state's scope of 
          practice laws, and hospital bylaws, rules, and regulations. 
           There are some instances in which the non-physician 
          practitioner can provide the specialty treatment more 
          expeditiously than the physician on call.  It is important 
          to note, however, that the designated on-call physician is 
          ultimately responsible for providing the necessary services 
          to the individual regardless of who makes the in-person 
          appearance.  Furthermore, in the event that the treating 
          physician disagrees with the on-call physician's decision 
          to send a representative and requests the actual appearance 
          of the on-call physician, then the on-call physician is 
          required by EMTALA to appear in person.


          Physician assistants (PAs)
          PAs are medical practitioners who perform services under 
          the supervision of a physician and surgeon.  The scope of 
          practice of a PA is described in the Physician Assistant 
          Practice Act and in regulations promulgated by MBC.  
          Pursuant to these laws, each PA may perform only those 
          services he or she is authorized to perform pursuant to a 
          written delegation of authority by the supervising 
          physician and surgeon.  A supervising physician and surgeon 
          is required to delineate the services their PAs may render 
          in a DSA.  The regulations provide that PAs may only 
          provide those medical services which he or she is competent 
          to perform and which are consistent with the PA's 
          education, training, and experience, and which are 
          delegated in writing by a supervising physician and surgeon 
          who is responsible for the patients cared for by that PA.  
          This bill would define a DSA consistent with current 
          regulations.

          Current law also authorizes a PA to certify any person as 
          disabled for purposes of the issuance of disabled placards; 
          perform medical examinations and provide necessary medical 
          certificates for applicants seeking a license to drive 
          standard commercial vehicles; perform medical examinations 
          and provide necessary medical certificates for any person 
          who operates a school bus; and perform medical examinations 
          and provide necessary medical certificates for any 
          applicant of a school district or county superintendent of 
          schools for certificated positions. 




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          Prior legislation
          SB 1069 (Pavley and Fletcher), Chapter 512, Statutes of 
          2010, authorizes a PA, pursuant to a DSA, to order durable 
          medical equipment, certify unemployment insurance 
          disability, and after consultation with the supervising 
          physician and surgeon, approve, sign, modify, or add to a 
          plan of treatment or plan of care for individuals receiving 
          home health services or personal care services.  Authorizes 
          PAs to conduct specified medical examinations and sign 
          corresponding medical certificates for various individuals. 


          SB 171 (Pavley), Chapter 34, Statutes of 2009, allows PAs 
          and advanced practice registered nurses to perform a 
          physical examination and submit directly to the governing 
          board or county superintendent of schools the medical 
          certificate of a person wishing to be employed in a 
          position requiring certification qualifications, or a 
          former retired employee of a school district, as a 
          condition of initial employment.

          AB 356 (Fletcher), Chapter 434, Statutes of 2009, expands 
          the existing category of licentiates of the healing arts to 
          include a licensed PA who practices pursuant to the 
          Radiologic Technology Act, and authorizes a physician and 
          surgeon to delegate procedures using ionizing radiation, 
          including, but not limited to, fluoroscopy, to a
          licensed PA, under specified conditions.
          
          AB 3 (Bass), Chapter 376, Statutes of 2007, creates the 
          California Team Practice Improvement Act which deletes the 
          prohibition on the authority of a PA to issue a drug order 
          for specified classes of controlled substances, but only if 
          the PA has completed a specified education course.  
          Requires a PA and the supervising physician and surgeon to 
          establish written supervisory guidelines and protocols, 
          increases the number of PAs a physician and surgeon may 
          supervise to four, and specifies that services provided by 
          a PA are included as covered benefits under the Medi-Cal 
          program.
          
          AB 139 (Bass), Chapter 158, Statutes of 2007, allows a PA 
          or a licensed advanced practice registered nurse qualified 
          to perform a medical examination, to conduct medical 




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          examinations on applicants seeking licensure to drive a 
          school bus, youth activity bus, farm labor vehicle or 
          paratransit bus.
           
          Arguments in support
          The California Academy of Physician Assistants (CAPA), the 
          sponsor of SB 233, states that existing law allows PAs to 
          perform a variety of medical services set forth by 
          regulations adopted by the MBC, when rendered under the 
          supervision of a physician and surgeon.  CAPA argues that 
          SB 233 would clarify an inconsistency in state law by 
          explicitly authorizing PAs to perform consultative and 
          treatment services in hospital EDs, providing an increase 
          in access to urgent medical care and a decrease in patient 
          overcrowding. 

          Arguments in opposition
          The California Chapter of the American College of Emergency 
          Physicians (CAL/ACEP) has taken an "oppose unless amended" 
          position on SB 233.  CAL/ACEP suggests amendments to seek 
          conformity to federal law with regard to all mid-level 
          medical services providers.  CAL/ACEP adds that 
          clarifications in regard to emergency screening 
          examinations, stabilizing care, and consultations in 
          section 1317 of the Health and Safety Code should apply to 
          all allied health providers, not just PAs.  CAL/ACEP  seeks 
          amendments that ensure the patient's treating physician is 
          consulted prior to a mid-level provider calling in another 
          consulting physician.  CAL/ACEP seeks amendments that make 
          it clear that if requested by the treating physician, the 
          consulting physician must appear in person, regardless of 
          whether or not a mid-level practitioner is available.  
                                         

                                    COMMENTS

           1.  Bill is limited to PAs.  As drafted, SB 233 would have 
          the effect of limiting the range of mid-level practitioners 
          who can assist with provisions of care and facilitating 
          consultations in ER departments to PAs.  This could have 
          the impact of limiting other ED other mid-range 
          practitioners, such as RNs and NPs, who are also qualified 
          to provide these services.  

          A suggested amendment would be to clarify that emergency 




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          services and care may be performed by appropriate personnel 
          acting pursuant to their scope of practice and licensure 
          under the supervision of a physician and surgeon.   

            Page 2, lines 7-19, amend as follows: 
            
            (a) (1) "Emergency services and care" means medical 
            screening, examination, and evaluation by a physician  and 
            surgeon  , or, to the extent permitted by applicable law, 
            by other appropriate personnel  acting pursuant to their 
            scope of practice and licensure  under the supervision of 
            a physician  and surgeon  , to determine if an emergency 
            medical condition or active labor exists and, if it does, 
            the care, treatment, and surgery  by a physician and 
            surgeon, or physician assistant practicing in compliance 
            with Chapter 7.7 (commencing with Section 3500) of 
            Division 2 of the Business and Professions Code and who 
            practices under the supervision of a qualified physician 
            and surgeon, pursuant to Division 13.8 (commencing with 
            Section 1399.502) of Title 16 of the California Code of 
            Regulations,  necessary to relieve or eliminate the 
            emergency medical condition, within the capability of the 
            facility.   

            Page 4, lines 10-27, amend as follows:
            
            (i) "Consultation" means the rendering of an opinion, 
            advice, or prescribing treatment  or decision regarding 
            hospitalization or transfer  by telephone and, when 
            determined to be medically necessary jointly by the 
             treating physician and surgeon and the consulting 
            physician and surgeon, or by other appropriate personnel, 
            acting pursuant to their scope of practice and licensure 
            under the supervision of a physician and surgeon, 
              emergency and specialty physicians and surgeons, or 
            physician assistants practicing in compliance with 
            Chapter 7.7 (commencing with Section 3500) of Division 2 
            of the Business and Professions Code and who practices 
            under the supervision of a qualified physician and 
            surgeon, pursuant to Division 13.8 (commencing with 
            Section 1399.502) of Title 16 of the California Code of 
            Regulations,  includes review of the patient's medical 
            record, examination, and treatment of the patient in 
            person by a specialty physician and surgeon,  or physician 
            assistant practicing in compliance with Chapter 7.7 




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            (commencing with Section 3500) of Division 2 of the 
            Business and Professions Code and who practices under the 
            supervision of a qualified physician and surgeon, 
            pursuant to Division 13.8 (commencing with Section 
            1399.502) of Title 16 of the California Code of 
            Regulations,  who is qualified to give an opinion or 
            render the necessary treatment in order to stabilize the 
            patient.  

          2.  The request for consultation made by a mid-level 
          practitioner does not ensure the involvement of the 
          treating physician and surgeon. A suggested amendment would 
          be to clarify that in the event that a mid-level 
          practitioner requests a consultation, it must be made with 
          the approval of the treating physician and surgeon. 

            Page 4, line 27, amend as follows: insert after 
            "patient.": 

             A request for consultation shall be made by the treating 
            physician and surgeon, or by other appropriate personnel, 
            acting pursuant to their scope of practice and licensure 
            under the supervision of a physician and surgeon, 
            provided this request is made with the contemporaneous 
            approval of the treating physician and surgeon. 
           

                                    POSITIONS  

          Support:  California Academy of Physician Assistants 
          (sponsor)

          Oppose:   California Chapter of the American College of 
          Emergency Physicians
                    California Nurses Association

                                        
                                    --END--