BILL ANALYSIS
AB 877
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Mary Hayashi, Chair
AB 877 (Emmerson) - As Amended: April 14, 2009
SUBJECT : Healing arts: scope of practice.
SUMMARY : Restricts legislative authority over the scope of a
healing arts practice to actions and conclusions of the
Executive Branch of Government. Specifically, this bill :
1)Requires the Director of Consumer Affairs (DCA) to appoint a
scope of practice committee (SOP committee) to perform
occupational analyses and prepare written reports, as
specified, on any bills seeking to substantively expand the
scope of a healing arts practice.
2)Provides the committee shall be comprised of five members as
follows:
a) Two academics, one representing each side of the scope
of practice issue;
b) Two practitioners, one representing each side of the
scope of practice issue; and
c) One public member
3)Requires a legislative policy committee to provide a bill
proposing to substantively expand the scope of a healing arts
practice to the appointed SOP committee for performance of the
occupational analysis.
4)Requires the SOP committee to prepare a written report within
90 days of receipt of the bill that does all of the following:
a) Evaluates the education, training, and experience of all
healing arts practices that would be affected by the
proposed substantive expansion of the scope of practice;
b) Evaluates the quality and quantity of the training
provided by the health care professional degree curricula
and postgraduate training programs to health care
practitioners in active practice with regard to the
increased scope of practice proposed; and
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c) Reviews other states that have a scope of practice for
the relevant healing arts practice that is identical or
similar to the proposed change and any available
information on how that scope of practice has affected the
quality and cost of health care in those states.
5)Requires the cost of an occupational analysis and written
report to be paid by the licensing board for the healing arts
practice that would be subject to the proposed expanded scope
of practice.
EXISTING LAW :
1)Vests the entire law-making authority of the state, except the
people's right of initiative and referendum, in the
Legislature, and authorizes that body to exercise any and all
legislative powers which are not expressly or by necessary
implication denied to it by the Constitution.
2)Provides for the licensure and regulation of various healing
arts practitioners by boards within the Department of Consumer
Affairs.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of the bill . According to the author's office, "Every
year scope of practice bills are introduced in the Legislature
without any thorough analysis being prepared. Currently, health
mandate bills have to be analyzed by the California Health
Benefits Review Program before they can be heard in committee.
Scope of practice bills need a similar entity to analyze and
review these bills before they are heard in committee. This
will ensure that members of the Legislature can make an informed
decision before expanding the scope of practice for various
health care professionals.
"This bill would provide a procedure for an objective review of
the proposed expansion in the scope of practice in order to
ensure that the changes would not adversely affect the health
and safety of Californians."
Background . Health policy analysts commonly refer to an "iron
triangle" of health care - cost, quality, and accessibility of
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care. The "iron triangle" analogy represents the theory that
health care reform measures aimed at improving the performance
of the health care system along any one dimension of the iron
triangle, can negatively impact one or both of the other
dimensions. Proposed regulatory changes to health care
providers' scope of practice have often been viewed as a
tradeoff amongst the iron triangle health policy goals -
assuring the quality of health; expanding access to health care;
and controlling health care costs.
Scope of practice issues are also commonly characterized as
highly politicized 'turf wars' between two competing groups of
health care practitioners. However, in the modern healthcare
delivery environment, scope of practice change proposals
typically involve complex policy issues that significantly
impact a broad variety of healthcare practitioners. In the
words of the Federation of State Medical Boards (FSMB), "Scope
of practice changes are among the most highly charged policy
issues facing state legislators and health care regulators.
Debates on scope of practice can be contentious and are
influenced by a variety of factors, including: fluctuations in
the health care workforce and specific health care specialties;
geographic and economic disparities in access to health care
services; economic incentives for physicians (M.D., D.O.) and
other health care practitioners; and consumer demand?."
Patient safety and public protection must be the primary
objectives when evaluating these requests."
Core legislative function . The California Constitution
(Constitution) vests each branch of government with certain core
or essential functions that may not be usurped by another
branch. The Constitution vests the entire law-making authority
of the state, except the people's right of initiative and
referendum, in the Legislature, and prohibits the Legislature
from delegating the legislative function. The determination and
formulation of legislative policy is a core legislative function
- in the words of the California Supreme Court, "The essentials
of the legislative function are the determination and
formulation of the legislative policy?. [A]bsent a
constitutional prohibition, the choice among competing policy
considerations in enacting laws is a legislative function."
Ad hoc scope of practice committees . Numerous states,
including New Mexico, Oregon, & Texas, have considered and
rejected proposals to create ad hoc scope of practice committees
similar to the one proposed by this bill. In addition, Iowa
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experimented with a pilot program involving ad hoc scope of
practice committees, but allowed the program to expire. Ad hoc
committees have been characterized as doing little more than
providing a central forum for conducting traditional 'turf wars'
between competing health professionals.
The makeup of the committee proposed by AB 877 - two members on
"each side of the scope of practice issue" and one public member
- suggests the proposed committee would be susceptible to
becoming little more than a 'turf war' forum. As previously
stated, scope of practice issues are complex and multifaceted
and subjecting them to a committee that may become a negotiation
between two of the numerous health care practitioner groups
potentially affected by the proposed change, seems unlikely to
result in an "objective review of proposed changes in the scope
of practice of health professionals," as intended by this bill.
As the California Chiropractic Association (CCA) notes in taking
an opposed unless amended position, "Scope of practice questions
represent complicated public policy issues that can have a
dramatic impact on patient health and safety. For this reason,
CCA supports the concept of requiring a more comprehensive
analysis of these types of bills. However, only allowing two
sides of a scope of practice issue to be represented on the
committee means the California Medical Association (CMA) would
represent the opposition to most proposed scope expansions.
This is a problem because scope of practice negotiations often
result in trade offs between professions. This bill will allow
CMA or the profession pushing for an expansion to recommend in
the analysis a negotiated trade off that does not harm medical
doctors, but could have a dramatic impact on other professions
and public health. Scope issues are multifaceted and the
committee composition should acknowledge that fact."
AB 877 provides broad discretion to the DCA, a member of the
executive branch of government, to appoint the members of the
proposed committee. This bill contains no provisions outlining
any qualification requirements, or ensuring that appointed
members are objective and without potential conflicts of
interest. The author points to the California Health Benefits
Review Program (CHBRP) as a similar entity to the proposed
committee. However, unlike the proposed committee, CHBRP is an
academic entity that includes numerous checks and balances to
ensure that its reports to the legislature are objective.
According to CHBRP:
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California Health Benefits Review Program (CHBRP) responds
to requests from the State Legislature to provide
independent analysis of the medical, financial, and public
health impacts of proposed health insurance benefit mandates
and repeals. A small analytic staff in the University of
California's Office of the President works with a task force
of faculty from several campuses of the University of
California, Loma Linda University, University of Southern
California, and Stanford University as well as actuarial
consultants to complete each analysis during a 60-day
period, usually before the Legislature begins formal
consideration of a mandate bill. A strict conflict of
interest policy ensures that the analyses are undertaken
without financial or other interests that could bias the
results. A National Advisory Council, made up of experts
from outside the state of California and designed to provide
balanced representation among groups with an interest in
health insurance benefit mandates, reviews draft studies to
assure their quality before they are transmitted to the
Legislature. Each report summarizes sound scientific
evidence relevant to the proposed mandate but does not make
recommendations, deferring policy decision-making to the
Legislature.
Finally, AB 877 appears to be a solution without a problem - the
author has not provided any examples where a legislatively
enacted change in a healing arts scope of practice has adversely
affected the health and safety of Californians. In short,
balancing the complex policy issues surrounding healing arts
scopes of practice to ensure the health and safety of
Californians is a core function of the Legislature. The
appropriate and effective scope of practice committee to
evaluate these policy issues for the Assembly is the Business
and Professions Committee.
Support . The California Dental Association (CDA) writes in
support, "In 2004, CDA co-sponsored legislation ? in an effort
to create a permitting process that would allow oral and
maxillofacial surgeons who met certain criteria to perform
specified elective procedures in accredited outpatient
facilities.
"While the legislation was passed by the Legislature receiving
only two "No" votes, the Governor vetoed the bill stating that
he was not yet comfortable that these practitioners were
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sufficiently qualified. In his veto message, the Governor
requested his Director of Consumer Affairs (DCA) to conduct an
occupational analysis of the oral and maxillofacial surgery
profession to determine if the procedures in question could be
performed safely and competently on an elective basis.
"In the meantime CDA co-sponsored new legislation which was
nearly identical to the previous year's bill, as a legislative
vehicle to move the issue forward again depending upon the
results of the state's analysis.
"In early June 2006, the final report from the consulting firm
chosen by DCA was released to the public. The report concluded
that oral and maxillofacial surgeons were fully qualified to
perform the elective cosmetic procedures permitted by the
CDA-sponsored bill. Ultimately, the bill was signed by the
Governor on September 30, 2006. While the issue was debated at
length in policy committees; the occupational analysis provided
members of the Legislature as well as the Governor an objective
report of the issues at hand.
"This bill does not remove the authority of the Legislature;
further it will assist them in making informed decisions using
information provided by an objective third-party ensuring the
health and safety of patients."
REGISTERED SUPPORT / OPPOSITION :
Support
California Dental Association
Opposition
None on file.
Analysis Prepared by : Whitney Clark / B. & P. / (916)
319-3301