BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 233
                                                                  Page  1

          Date of Hearing:   July 5, 2011

                            ASSEMBLY COMMITTEE ON HEALTH
                              William W. Monning, Chair
                     SB 233 (Pavley) - As Amended:  June 28, 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 by telephone or other means of communication 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)Permits the treating physician and surgeon to request to 
            communicate directly with the consulting physician and 
            surgeon, and requires, when determined to be medically 








                                                                  SB 233
                                                                  Page  2

            necessary, jointly by the treating physician and surgeon and 
            the consulting physician and surgeon, the consulting physician 
            and surgeon to examine and treat the patient in person. 

          6)States that the consulting physician and surgeon is ultimately 
            responsible for providing the necessary consultation to the 
            patient, regardless of who makes the in-person appearance. 

          7)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. 

          8)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 








                                                                  SB 233
                                                                  Page  3

            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 
            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 








                                                                  SB 233
                                                                  Page  4

            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 
            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 








                                                                  SB 233
                                                                  Page  5

            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 
            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 








                                                                  SB 233
                                                                  Page  6

            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 
            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 








                                                                  SB 233
                                                                  Page  7

            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 
            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 








                                                                  SB 233
                                                                  Page  8

            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. 

           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 
            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)TECHNICAL AMENDMENTS  .  On page 5, in line 2, before 
            "physician" add "consulting",
          in line 6, after "a" add "treating", and in line 20, after "a" 
            add "treating".


           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