BILL ANALYSIS Ó
SB 233
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON HEALTH
William W. Monning, Chair
SB 233 (Pavley) - As Amended: May 18, 2011
SENATE VOTE : 37-0
SUBJECT : Emergency services and care.
SUMMARY : Clarifies existing law to explicitly permit
appropriate licensed personnel to perform consultations and
treatment in an emergency department (ED) if within their
existing scope of practice. Specifically, this bill :
1)Revises the existing definition of "emergency services and
care" to mean medical screening, examination, and evaluation
by a physician or surgeon, or, to the extent permitted by
applicable law, other appropriate licensed personnel acting
within their scope of licensure under the supervision of a
physician and surgeon, to determine if an emergency medical
condition or active labor exists.
2)Clarifies that, upon a determination that an emergency medical
condition or active labor exists, "emergency services and
care" also includes the care, treatment, and surgery, if
within the scope of the appropriate licensed personnel's
license, necessary to relieve or eliminate the emergency
medical condition, within the capability of the facility.
3)Includes the rendering of a decision regarding hospitalization
or transfer in the existing definition of "consultation" and
authorizes other appropriate licensed personnel acting within
their scope of licensure to provide consultation.
4)Requires the request for consultation to be made by the
treating physician and surgeon, or by other appropriate
licensed personnel acting within their scope of licensure,
provided that it is made with the contemporaneous approval of
the treating physician and surgeon.
5)Authorizes, in addition to a physician or surgeon, other
appropriate licensed personnel acting within their scope of
licensure to determine when a patient's emergency condition
has been stabilized.
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6)Prohibits this bill from being construed to expand the scope
of licensure for licensed personnel providing services in the
ED.
EXISTING FEDERAL LAW :
1)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.
2)Permits, pursuant to EMTALA, an on-call physician, under
hospital policies, the option to direct a non-physician
practitioner or his/her representative to appear at a hospital
and provide further assessment or stabilizing treatment to an
individual.
EXISTING STATE LAW :
1)Prescribes requirements similar to EMTALA that require
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 ED to provide
emergency services to the public when the health facility has
appropriate facilities and qualified personnel available to
provide the services or care.
2)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
if an emergency medical condition or active labor exists, and,
if it does, the care, treatment, and surgery by a physician
necessary to relieve or eliminate the emergency medical
condition, within the capability of the facility.
3)Defines "consultation" as the rendering of an opinion, advice,
or prescribing treatment by telephone and includes, when
determined to be medically necessary jointly by the emergency
and specialty physicians, review of the patient's medical
record, examination, and treatment of the patient in person by
a specialty physician who is qualified to give an opinion or
render the necessary treatment in order to stabilize the
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patient.
4)Establishes the Physician Assistant Practice Act administered
by the Physician Assistant Committee of the Medical Board of
California (MBC) to regulate physician assistants (PAs).
5)Allows a PA to 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 approved
by MBC, except as otherwise provided.
6)Specifies, in regulations, that a PA may only perform 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 (i.e., a
Delegation of Services Agreement (DSA)) by a supervising
physician who is responsible for the patients cared for by
that PA.
7)Requires a PA and his/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,
as specified, for some or all of the tasks performed by the
PA.
8)Establishes the Nursing Practice Act (NPA) administered by the
Board of Registered Nursing (BRN) to regulate nurse
practitioners (NPs).
9)Defines NP to mean a registered nurse (RN) who possesses
additional preparation and skills in physical diagnosis,
psycho-social assessment, and management of health-illness
needs in primary health care, who has been prepared in a
program that conforms to BRN standards and performs medical
functions pursuant to standardized procedures developed and
approved by the supervising physician and surgeon.
10)Authorizes PAs and NPs 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.
11)Authorizes PAs and NPs 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.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
1)PURPOSE OF THIS BILL . According to the author, this bill is
prompted by a recent situation in which a physician was
requested to provide a consultation in the ED at Mission
Hospital in Orange County and sent his PA to provide the
further assessment. The PA was subsequently prohibited from
providing the consultation. The author maintains that
although these types of services are routinely 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 this bill
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 preparation of the patient under the supervision
of the physician and surgeon, and, in doing so, 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.
2)BACKGROUND . EMTALA was passed as part of the Consolidated
Omnibus Budget Reconciliation Act of 1986. 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
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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 coverage of its
provisions.
EMTALA applies only to participating hospitals, i.e., hospitals
that have entered into provider agreements under which they
will accept payment from the federal Centers for Medicare and
Medicaid Services under the Medicare Program for services
provided to beneficiaries of that program. EMTALA applies to
virtually all hospitals in the U.S., with the exception of the
Shriners' Hospital for Crippled Children and many military
hospitals. Its provisions apply to all patients and not just
to Medicare patients.
EMTALA allows an on-call physician, under hospital policies, the
option of sending a representative, i.e., directing a
non-physician practitioner or his/her representative to appear
at the hospital and provide further assessment or stabilizing
treatment to an individual. According to EMTALA, this
determination should be based on the individual's medical need
and the capacities of the hospital, and the applicable state's
scope of practice laws, and hospital by-laws and 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.
3)SCOPE OF PRACTICE OF PAs and NPs. Current regulations specify
that a PA may only provide those medical services which he or
she is competent to perform, as determined by a supervising
physician; that are consistent with the PA's education,
training, and experience; and, that are delegated in writing
by the supervising physician responsible for the patients
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cared for by the PA. The DSA is required to be signed and
dated by the PA and supervising physician. It identifies what
types of services the PA is allowed to perform, how they are
performed, how patient charts will be reviewed and signed, and
what type of medications the PA will transmit on behalf of the
supervising physician. PAs may provide medical services
pursuant to more than one DSA. Every practicing PA is
required to have a DSA and make a copy available upon the
request of the MBC. Failure to have a current DSA constitutes
a violation and grounds for disciplinary action against a PA's
license.
Medical tasks performable by a PA may only be those that are
usual and customary to the supervising physician's practice.
Examples of such medical services include taking patient
histories; ordering or transmitting orders for X-rays;
initiating arrangements for hospital admissions; completing
forms and charts for a patient's medical record; issuing or
transmitting drug orders under specified conditions;
performing surgical procedures that are customarily performed
under local anesthesia; and, using ionizing radiation to
perform certain types of medical imaging.
NPs are RNs who are prepared by advanced education to provide
primary care including medical procedures that may be required
for a specialty area. According to information from BRN, the
NP does not have an additional scope of practice beyond the
usual RN scope and must rely on standardized procedures for
authorization to perform overlapping medical functions.
Pursuant to the NPA, NPs are authorized to perform nursing
functions that are essential to providing primary health care
and which do not require standardized procedures, such as
physical and mental assessment; disease prevention and
restorative measures; skin tests and immunization techniques;
withdrawal of blood; and, authority to initiate emergency
procedures.
Standardized procedures are the legal mechanism for NPs to
perform functions which would otherwise be considered the
practice of medicine. Such functions include diagnosis of
mental or physical conditions, the use of drugs in or upon
human beings, and severing or penetrating tissue of human
beings. The performance of any of these functions by a NP
requires a standardized procedure. Standardized procedures
must be developed collaboratively with staff from the health
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care facility where they will be utilized and approved by the
NP's supervising physician and surgeon.
4)SUPPORT . The sponsor of this bill, the California Academy of
Physician Assistants (CAPA), 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 this
bill clarifies an inconsistency in state law by explicitly
authorizing PAs and other mid-level practitioners to perform
consultative and treatment services in the hospital ED,
thereby increasing the provision of urgent medical care and
decreasing patient overcrowding. The United Nurses
Association of California/Union of Health Care Professionals
adds that PAs provide valuable services within the health care
team and this bill is needed to align state and federal law.
5)OPPOSITION . The California Nurses Association (CNA) objects
to this bill and views it as an expansion of scope of practice
and an encroachment into the practice of medicine. CNA
asserts that the law is clear that physicians may provide
emergency consults, care, treatment, and surgery; and allowing
"other appropriate personnel" to provide these services raises
concerns over whether or not any of these types of personnel
retain the appropriate levels of training and competence to
perform these services. CNA believes this bill lessens
standards of care for patients by promoting the broad
delegation of certain aspects of care, including consultations
and stabilization determinations, to non-physician
practitioners.
6)OPPOSE UNLESS AMENDED . The California Chapter of the American
College of Emergency Physicians opposes this bill unless it is
amended to clarify that the definitions of emergency
services, care, and consultation include delivery by
appropriate licensed personnel to the extent permitted by
hospital by-laws or rules and regulations as provided under
EMTALA and to require, when determined to be medically
necessary, jointly by the treating physician and surgeon and
consulting physician and surgeon, the consulting physician to
examine and treat a patient in person.
7)PRIOR LEGISLATION . SB 1069 (Pavley and Fletcher), Chapter
512, Statutes of 2010, authorizes PAs, pursuant to a DSA, and
NPs, pursuant to approved standardized procedures, to order
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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.
8)AUTHOR'S AMENDMENT . The author will be offering an amendment
to clarify that a consultation takes place using other means
of communication other than by telephone. On page 4, line 25,
after "telephone" insert "or by other means of communication".
REGISTERED SUPPORT / OPPOSITION :
Support
California Academy of Physician Assistants (sponsor)
Medical Board of California
United Nurses Association of California/Union of Health Care
Professionals
Several individuals
Opposition
California Nurses Association
Analysis Prepared by : Cassie Royce / HEALTH / (916) 319-2097