BILL ANALYSIS Ó
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
2
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---
STAFF ANALYSIS OF SENATE BILL 233 (Pavley) Page
2
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
STAFF ANALYSIS OF SENATE BILL 233 (Pavley) Page
3
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
STAFF ANALYSIS OF SENATE BILL 233 (Pavley) Page
4
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
STAFF ANALYSIS OF SENATE BILL 233 (Pavley) Page
5
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.
STAFF ANALYSIS OF SENATE BILL 233 (Pavley) Page
6
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
STAFF ANALYSIS OF SENATE BILL 233 (Pavley) Page
7
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
STAFF ANALYSIS OF SENATE BILL 233 (Pavley) Page
8
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
STAFF ANALYSIS OF SENATE BILL 233 (Pavley) Page
9
(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--