BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: SB 323 Hearing Date: April 20,
2015
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|Author: |Hernandez |
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|Version: |March 26, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sarah Huchel |
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Subject: Nurse practitioners.
SUMMARY: Authorizes a nurse practitioner who holds a national
certification to practice without physician supervision in
specified settings.
Existing law:
1)Establishes the Board of Registered Nursing (BRN) to
administer and enforce the Nursing Practice Act (Act).
(Business and Professions Code (BPC)
§ 2701)
2)Declares that the intent of the Legislature in amending
the Act is to recognize the existence of overlapping
functions between physicians and registered nurses and to
permit additional sharing of functions within organized
health care systems that provide for collaboration
between physicians and registered nurses. (BPC § 2725
(a))
3)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 or
the treatment thereof, and that requires a substantial
amount of scientific knowledge or technical skill as
specified. (BPC § 2725 (b))
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4)Defines "standardized procedures" as either policies and
protocols developed by a health facility through
collaboration among administration and health
professionals or policies and protocols developed through
collaboration among administrators and health
professionals by an organized health care system which is
not a health care facility. (BPC § 2725 (c))
5)States that the Legislature finds that the public
interest would be better served by the determination of
the legitimate use of the title "nurse practitioner" (NP)
by registered nurses. (BPC § 2834)
6)Requires licensure as a NP. (BPC § 2835)
7)Requires that for initial qualification or certification
as an NP, an individual must meet specified requirements
including having a valid and active Registered Nurse (RN)
license, possess a master's degree in nursing or graduate
degree in nursing and satisfactorily complete a NP
program approved by the BRN. (BPC § 2835.5)
8)Provides that standardized procedures may be implemented
to authorize an NP to do the following: order durable
medical equipment as specified; certify disability after
performance of a physical examination by the NP and
collaboration with a physician and surgeon; and approve,
sign, modify, or add to a plan of treatment or a plan of
care for individuals receiving home health services or
personal care services after consultation with the
treating physician and surgeon. (BPC § 2835.7)
9)Provides that the BRN shall establish categories of NPs
and standards for nurses to hold themselves out as NPs in
each category and provides what the BRN shall consider in
setting such standards. (BPC § 2836)
10)Provides that an NP may furnish or order drugs or
devices if specified conditions are met and are done in
accordance with standardized procedures or protocols and
the drugs or devices ordered are consistent with the NPs
educational preparation or for which clinical competency
has been established and maintained. (BPC § 2836.1 (a))
11)Provides that the furnishing or ordering of drugs or
SB 323 (Hernandez) Page 3
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devices by a NP occurs under physician and surgeon
supervision but that supervision shall not be construed
to require the physical presence of the physician, but
does include collaboration on the development of the
standardized procedure, approval of the standardized
procedure, and availability by telephonic contact at the
time of patient examination by the NP. (BPC § 2836.1
(d))
12)Requires one physician to supervise every four
prescribing NPs.
(BPC § 2836.1 (e))
13)Provides that drugs or devices furnished or ordered by
an NP may include Schedule II through Schedule V
controlled substances and shall be further limited to
those drugs agreed upon by the NP and the physician and
surgeon and specified in the standardized procedures.
(BPC § 2836.1 (f))
14)Requires that a NP complete a course in pharmacology
covering the drugs or devices to be furnished or ordered
and that a physician and surgeon may determine the extent
of supervision necessary in the furnishing or ordering of
drugs and devices by the NP. (BPC § 2836.1 (g))
15)Requires that all NPs who are authorized to furnish or
issue drug orders to controlled substances shall register
with the United States Drug Enforcement Administration
and that the furnishing or drugs or devices by NPs is
conditional on issuance by the BRN of a number to the NP
who has successfully completed the requirements as
specified and that the number provided shall be included
on all transmittals or orders by the NP.
(BPC § 2836.2 and 2836.3)
This bill:
1)Makes Legislative findings and declarations as to the
importance of NPs providing safe and accessible primary care.
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2)Authorizes an NP who holds a national certification from a
national certifying body recognized by the BRN ("certified
NP") to practice without the supervision of a physician if the
certified NP practices in one of the following settings:
a) A clinic.
b) Specified health facilities, including a general acute
care hospital, acute psychiatric hospital, skilled nursing
facility, intermediate care facility, correctional
treatment center, and hospice facility, as specified.
c) A county medical facility.
d) An accountable care organization.
e) A group practice, including a professional medical
corporation, another form of corporation controlled by
physicians, a medical partnership, a medical foundation
exempt from licensure, or another lawfully organized group
of physicians that delivers, furnishes, or otherwise
arranges for or provides health care services.
f) A medical group, independent practice association, or
any similar association.
3)Provides that in addition to any other practice authorized in
statute or regulation, a "certified NP" practicing in
specified settings may do all of the following without
physician supervision, unless collaboration is specified:
a) Order durable medical equipment.
b) Certify disability for purposes of unemployment after
performance of a physical examination by the certified NP
and collaboration, if necessary, with a physician.
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, if necessary,
with the treating physician and surgeon.
d) Assess patients, synthesize and analyze data, and apply
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principles of health care.
e) Manage the physical and psychosocial health status of
patients.
f) Analyze multiple sources of data, identify a
differential diagnosis, and select, implement, and evaluate
appropriate treatment.
g) Establish a diagnosis by client history, physical
examination, and other criteria, consistent with this
section, for a plan of care.
h) Order, furnish, prescribe, or procure drugs or devices.
i) Delegate tasks to a medical assistant pursuant to
standardized procedures and protocols developed by the NP
and medical assistant that are within the medical
assistant's scope of practice.
j) Order hospice care, as appropriate.
aa) Order and interpret diagnostic procedures.
bb) Perform additional acts that require education and
training and that are recognized by the nursing profession
as appropriate to be performed by an NP.
4)Requires a "certified NP" to refer a patient to a physician or
other licensed health care provider if a situation or
condition of the patient is beyond the scope of the education
and training of the NP.
5)Requires a "certified NP" to maintain professional liability
insurance appropriate for the practice setting.
FISCAL
EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
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1.Purpose. This bill is sponsored by the Author . According to
the Author's office, this bill permits an NP to practice
without physician supervision if the NP is certified by a
national certifying body, maintains professional liability
insurance that is appropriate for his or her practice setting,
and is practicing in one of the following settings:
a) A clinic, health facility, or county medical facility;
b) An accountable care organization, as specified; or,
c) A group practice, as specified.
This bill also specifies the scope of practice for NPs and
specifically permits an independent NP in the settings listed
above to perform services that are widely agreed to be the
extent of services that NP perform today. Finally, this bill
clarifies that an NP must refer a patient to a physician or
other licensed health care provider if a situation or
condition of the patient is beyond the NP's education or
training.
2.NP Training and Educational Requirements. An NP is a
registered nurse who possesses additional preparation and
skills in physical diagnosis, psycho-social assessment, and
management of health-illness needs in primary health care, and
who has completed a NP program that conforms to BRN standards.
NP programs are required to include 12 semester units or 18
quarter units of clinical practice
(3 hours of clinical practice each week equals one unit). NPs
are required to have a Master's degree; and many further
pursue a doctorate in nursing. As of September 2013, the BRN
reported 18,541 active, licensed NPs. NPs may specialize in
disciplines such as acute pediatric care, adult gerontological
care, family care, women's health, and mental health nursing.
3.Standardized Procedures. The NP scope of practice is currently
determined by standardized procedures, which are the legal
mechanism for NPs to perform functions which would otherwise
be considered the practice of medicine. The Medical Practice
Act authorizes physicians to diagnose mental and physical
conditions, to use drugs in or upon human beings, to sever or
penetrate tissue, and to use other methods in the treatment of
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diseases, injuries, deformities, or other physical or mental
conditions. As a general rule, the performance of any of
these functions by a NP requires a standardized procedure.
Standardized procedures are defined as policies and protocols
developed by a health facility or organized health care
system, with input from administrators and health
professionals, which establish parameters for medical care.
An NP may perform standardized procedure functions only under
the conditions specified in a health care system's
standardized procedures, and must provide the system with
satisfactory evidence that he or she meets its experience,
training, and education requirements.
4.Protocols. Protocols are a part of standardized procedures
and are designed to describe the steps of medical care for
given patient situations. They are used for management of
acute or episodic conditions, trauma, chronic conditions,
infectious disease contacts, routine gynecological problems,
contraception, health promotion exams, and ordering of
medications. Protocols are developed in consultation with a
supervising physician.
5.Prescribing Authority. NPs may furnish drugs by obtaining a
number from the United States Drug Enforcement Agency (DEA) to
prescribe Schedule II-V drugs pursuant to a protocol and
standardized procedures. The DEA considers an NP to be a
"prescriber," but NPs who write prescriptions are considered a
"furnishing" NP under California law. Furnishing is the
delegated authority to write prescriptions, and is done in
accordance with approved standardized procedures and
protocols. Physician supervision is required and the
physician must be available, at least by telephonic means, at
the time the NP examines the patient. Furnishing NPs are
required to be supervised by a physician, but non-furnishing
NPs are not.
6.Supervision Requirements. A physician may supervise up to
four furnishing NPs. The law does not specify the quality and
extent of supervision necessary, only that the physician be
available by phone when a NP examines a patient. There is no
requirement that the physician work in the same facility with
the NP, meet regularly with the NP, review patient charts, or
be within a geographic proximity.
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7.NP as a Primary Care Provider. The Institute of Medicine
(IOM), an independent nonprofit organization which is part of
the National Academy of Sciences, published a report in 2011,
in which it concluded that NPs deliver the same quality of
primary care as physicians. IOM noted that although NPs are
most immediately sought for their medical skills in primary
care, they integrate practices from several disciplines,
including social work, nutrition, and physical therapy.
The IOM report notes that some argue that NPs should not be
allowed to be independent primary care practitioners because
physicians are more qualified due to their extensive academic
and clinical training, and unique cognitive and technical
skills. However, the IOM report noted that the contention
that NPs are less able than physicians to deliver care that is
safe, effective, and efficient is not supported by research.
Further, NPs are trained to refer out when conditions rise
beyond their competencies and have the ability to coordinate
care between providers.
NPs have been slowly granted practice autonomy in other states
over the last decade. According to information provided by
the American Association of Nurse Practitioners, 21 states
allow NPs to evaluate patients, diagnose, order and interpret
diagnostic tests, and initiate and manage treatment under the
exclusive license authority of the state board of nursing.
Today, nurse practitioners (which make up slightly less than a
quarter of all primary care professionals), together with
physicians and physician assistants, provide most of the
primary care in the United States. The demand for a larger
primary care workforce will grow as access to coverage,
service settings, and services increases under the federal
Affordable Care Act (ACA).
8.Primary Care Access and Medi-Cal. The ACA was passed in March
2010 to provide quality, affordable healthcare for all
Americans and improve the quality and efficiency of that care.
California was an early adopter of the ACA and has been a
leader in enrolling eligible residents. According to the
Kaiser Family Foundation, nearly 3.4 million previously
uninsured Californians recently gained coverage under the ACA.
Primary care providers will be responsible for health
promotion, disease prevention, early diagnosis, and the
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coordination of care with other providers for these new
entrants to the market.
Accessing these providers will be a challenge given the
current state of the nation's health care workforce
restrictions. The Association of American Medical Colleges
estimates a nationwide shortage of 45,000 primary care
physicians by 2020. According to a 2013 article in the
journal Health Affairs, this shortage is caused not only by an
increase in the number of people with health insurance, but
overall population growth, population aging, and an ongoing
decrease in the number of medical school graduates choosing to
practice primary care. The article stated, "Increasing the
role of NPs as primary care providers can be an important
approach to increasing primary care capacity."
Permitting independent practice by NPs will allow greater
access to care for Medi-Cal and Medicare populations.
Medi-Cal is the state's Medicaid health insurance program,
funded by both the federal and state government for low-income
families and children, people with disabilities, pregnant
women, and seniors. Medicare is the federal government health
insurance program for seniors and persons with disabilities.
The California HealthCare Foundation reports that presently,
adults with Medi-Cal are nearly twice as likely to report
difficulty getting a doctor appointment than other insured
adults in California. In 2008, there were only 50 primary
care providers for every 100,000 Medi-Cal beneficiaries in
California, well below the federal guidelines of 60 to 80 per
100,000. NPs are limited in their ability to be reimbursed
for care covered by Medi-Cal due to physician supervision
constraints.
According to the Centers for Medicare and Medicaid Services,
fewer American doctors are treating patients enrolled in the
Medicare health program, reflecting physician frustration with
its payment rates and rules. The number of doctors who opted
out of Medicare last year nearly tripled from three years
earlier. Other doctors are limiting the number of Medicare
patients they treat even if they don't formally opt out of the
system.
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NPs in California may currently only treat Medicare patients
if their supervising physician is a Medicare provider.
According to an article in the medical journal Health Affairs,
Medicare, Medicaid, and private insurers typically reimburse
NPs at rates that are just 75-85% of what they pay physicians
for the same services. NPs generally have less overhead than
physicians (lower educational debt loads and fewer equipment
costs because of the lower complexity of procedures
performed), and are therefore more likely to work for a lower
reimbursement.
A 2013 study published in the journal Health Affairs found
that between 1998 and 2010 the number of Medicare patients
receiving care from NPs increased fifteen times. Those states
which allowed greater NP autonomy saw a 2.5 times greater
likelihood of patients' receiving their primary care from NPs
than did the most restrictive states. The authors concluded
that "Relaxing state restrictions on NP practice should
increase the use of NPs as primary care providers, which in
turn would reduce the current national shortage of primary
care providers."
9.Accountability Provisions. This bill will require independent
NPs to have professional liability insurance. Presently,
supervising physicians are partially accountable for an NP's
practice and a physician's license is at stake for
unprofessional conduct by a supervised NP. Independence will
require that the NP be wholly accountable for his or her
actions, and the required liability insurance would arguably
help protect consumers in the event of a malpractice action.
10.Arguments in Support. Supporters of this bill include
patient and employer representatives, healthcare systems,
insurers, nursing organizations, pharmacists, naturopaths, and
academic institutions. Supporters recognize the extensive
training and certification of NPs ensure patient safety and
believe passage of this bill will increase both healthcare
access and provider participation in Medi-Cal.
The California Association of Physician Groups (CAPG) writes
that since the implementation of ACA, "?California has added 5
million newly insured patients to the healthcare system.
Recently, newly insured patients tried to find doctors once
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they had obtained coverage but found that many practitioners
had closed their practices to new patients ?. California has
an aging primary care physician and osteopathic workforce.
Other states have proven that NPs with full practice authority
function well in that role, and there is a wealth of national
studies that have analyzed the environments in which full
practice authority has been legislated and all have concluded
that it is a safe and effective means to increase access to
quality care. While there is a wealth of studies that support
this concept, there is little or no evidence to refute it.
"Our members are engaged in the service of providing access to
health care. This bill increases the ability to provide access
in meaningful ways to cope with the expansion of the patient
base in California. It modernizes licensure law to reflect
the current reality. It allows Nurse Practitioners to
practice to the full extent of their education and training."
California Health & Wellness write, "The State's movement of
the rural market from fee-for-service to managed care in
November 2013 marked an important first step in proving rural
health care delivery for Medi-Cal beneficiaries. We believe
that. . .
SB 323 is an important next step that will create new access
points in the health care delivery system - a particularly
crucial need in the Medi-Cal program."
11.Arguments in Opposition. Opponents are physician
organizations and individuals who are concerned that NPs are
insufficiently qualified to practice without supervision and
limiting their independent practice to specific settings, as
defined in the bill, does not guarantee interdependent
practice teams.
The California Chapter of the American College of Cardiology
(CA-ACC) writes, "CA-AAC worries this bill would fracture
health care teams comprised of multiple health care providers
working together to provide coordinated care. Nurse
practitioners are an important part of these health care
delivery teams working in conjunction with supervising
physicians. Nurse practitioners however, do not have
sufficient education and training to examine and diagnose
completely independent of physicians and such a practice puts
patients at risk.
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"Additionally, the bill introduces potential conflicts of
interest and undermines the corporate ban on the practice of
medicine because nurse practitioners are not covered by the
ban. A hospital or clinic is incentivized to hire
non-physicians in order to direct those employees to maximize
profits."
The California Society of Plastic Surgeons writes, "The
dangers around having unqualified health practitioners
performing cosmetic medical procedures are seen by our members
on a regular basis. Many times a patient will come to us only
after they have had a cosmetic procedure performed by a
practitioner resulting in poor outcomes. Patients are
embarrassed and grief stricken over the outcomes, realizing
they may not be reversible. NPs do not have the training or
education to be performing cosmetic medical procedures such as
procedures utilizing lasers. There are many complications
that can arise when using lasers and having a physician
supervise the NP is essential to ensuring patient safety."
12.Prior Related Legislation. SB 491 (Hernandez, 2013) would
have permitted an NP to practice independently after a period
of physician supervision if the NP has national certification
and liability insurance, and authorizes the NP to perform
various other specified tasks related to the practice of
nursing without protocols.
( Status: This bill was held in Assembly Appropriations
Committee.)
13.Policy Issue. This bill replaces the present code section
authorizing an NP to order durable medical equipment, certify
disability, and approve, sign, modify, or add to a plan of
treatment or plan of care for individuals receiving home
health services or personal care services pursuant to
standardized procedures. If this bill were to pass, an NP who
is not nationally certified and not practicing in the settings
specified in this bill may not be authorized to do the items
above pursuant to standardized procedures.
14.Recommended Author's Amendment. It is recommended that the
author clarify that NPs who are not authorized to practice
independently may continue to order durable medical equipment,
certify disability, and approve, sign, modify, or add to a
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plan of treatment or plan of care for individuals receiving
home health services or personal care services pursuant to
standardized procedures. It is also recommended that
2835.7(b) be clarified to pertain only to those NPs who are
authorized to practice independently. For code clarity,
Section Two of this bill should be renumbered and the original
language of 2835.7 be retained.
On page 3, line 9, strike "2835.7" and add "2837"
On page 3, line 11, strike "2835.7" and add 2837"
On page 4, line 2, after "practitioner," add "who meets the
qualifications of (a)"
On page 4, line 3, after "following" add "without supervision
of a physician and surgeon"
On page 5, above line 6, add "SEC.3. Section 2837 of the
Business and Professions Code is amended to read:
2838. Nothing in this article shall be construed to limit the
current scope of practice of a registered nurse authorized
pursuant to this chapter.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the
California Constitution because the only costs that may be
incurred by a local agency or school district will be incurred
because this act creates a new crime or infraction, eliminates
a crime or infraction, or changes the penalty for a crime or
infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the
California Constitution.
On page 5, strike lines 6-14.
SUPPORT AND OPPOSITION:
Support:
AARP
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AltaMed Health Services Corporation
Alzheimers Association
American Nurses Association\California (ANA\C)
Anthem Blue Cross
Association of California Nurse Leaders
Bay Area Council
Blue Shield of California (BSC)
California Association for Nurse Practitioners (CANP)
California Association of Nurse Anesthetists (CANA)
California Association of Physician Groups (CAPG)
California Association of Public Hospitals and Health Systems
(CAPH)
California Council of Community Mental Health Agencies
California Family Health Council (CFHC)
California Health & Wellness (CH&W)
California Hospital Association (CHA)
California Naturopathic Doctors Association (CNDA)
California Pharmacists Association
California Primary Care Association (CPCA)
California Senior Legislature
California Society of Health-System Pharmacists
Congress of California Seniors (CCS)
Johns Hopkins University Division of Occupational and
Environment Medicine
Maxim Healthcare Services, Inc.
MemorialCare Health System
Pacific Clinics
Private Essential Access Community Hospitals (PEACH)
Providence Health & Services
Sharp HealthCare
Small Business Majority
Stanford Health Care (SHC)
St. Joseph Health
United Nurses Associations of California/Union of Health Care
Professionals (UNAC/UHCP)
University of California
Western University of Health Sciences
Several individuals
Opposition:
California Chapter of the American College of Cardiology
(CA-ACC)
California Chapter of the American College of Emergency
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Physicians (California ACEP)
California Medical Association
California Society of Plastic Surgeons (CSPS)
California Academy of Family Physicians (CAFP)
Numerous individuals
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