BILL ANALYSIS Ó
SB 491
Page 1
Date of Hearing: August 13, 2013
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
SB 491 (Hernandez) - As Amended: August 8, 2013
SENATE VOTE : 22-12
SUBJECT : Nurse practitioners.
SUMMARY : Permits a nurse practitioner (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.
Specifically, this bill :
1)Permits a 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 either:
a) He or she has practiced under the supervision of a
physician for at least 4,160 hours and is practicing in one
of the following settings:
i) A clinic, health facility, or county medical
facility;
ii) An accountable care organization, as specified; or,
iii) A group practice, including a professional medical
corporation, another form of corporation controlled by
physicians and surgeons, 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; or
b) He or she has practiced under the supervision of a
physician for at least 6,240 hours and maintains a list of
licensed health care providers most often used for the
purposes of obtaining information or advice.
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2)Permits an independent NP to do the following without
standardized procedures or protocols:
a) Order durable medical equipment, although nothing in
this bill shall prohibit a third-party payer from requiring
prior approval;
b) Certify disability after performing a physical
examination;
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;
d) Assess patients, synthesize and analyze data, and apply
principles of health care;
e) Manage the physical and psychosocial health status of
patients;
f) Analyze multiple sources of data, including patient
history, general behavior, and signs and symptoms of
illness; identify alternative possibilities as to the
nature of a health care problem; and select, implement, and
evaluate appropriate treatment;
g) Establish a diagnosis by client history, physical
examination, and other criteria;
h) Order, furnish, or prescribe drugs or devices;
i) Refer patients to physicians or other licensed health
care providers;
j) Delegate tasks to a medical assistant that are within
the medical assistant's scope of practice;
aa) Perform additional acts that require education and
training and that are recognized by the the Board of
Registered Nursing (BRN) as proper to be performed by a NP;
bb) Order hospice care as appropriate; and,
cc) Perform procedures that are necessary and consistent
with the NP's education and training.
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3)Requires a NP to refer a patient to a physician and surgeon or
another licensed health care provider if a situation or
condition of the patient is beyond the NP's education or
training.
4)Does not limit a NP's authority to practice nursing or limit
the scope of practice of a registered nurse.
5)Requires the Board of Registered Nursing (BRN) to adopt
regulations by July 1, 2015 establishing the means of
documenting completion of this bill's requirements.
6)Specifies that NPs shall not supplant physicians employed by a
clinic, health facility, or county medical facility
7)States that no reimbursement is required by this bill 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, 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.
EXISTING LAW :
1)Declares that the intent of the Legislature in amending
the Nursing Practice 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.
(Business and Professions Code (BPC) Code Section 2725
(a))
2)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. (BPC 2725 (a))
3)Defines "standardized procedures" as either policies and
protocols developed by a health facility through
collaboration among administration and health
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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))
4)Permits NPs to furnish and order drugs pursuant to
standardized procedures developed by the NP and the
supervising physician and surgeon when the drugs or
devices are consistent with the practitioner's
educational preparation or for which clinical competency
has been established and maintained. (BPC 2836.1)
5)Requires one physician to supervise every four
prescribing NPs. (BPC 2836.1)
6)Permits BRN to employ such personnel as it deems
necessary to carry out the nursing law, and permits BRN
to adopt, amend, or repeal such rules and regulations as
may be reasonably necessary to enable it to carry into
effect the provisions of the nursing law. (BPC 2715)
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill . This bill allows a prescribing NP to
practice independently of physician supervision and
standardized procedures after a period of supervised practice
if the NP has national certification and liability insurance.
This bill is author-sponsored.
2)Author's statement . According to the author's office,
"Independent practice would allow NPs to choose to see
Medi-Cal patients, a decision that is now left up to the
physician they work for. Due to the excellent safety and
efficacy record NPs have earned historically, the Institutes
of Medicine and the National Council of State Boards of
Nursing have recommended full practice for NPs. Currently, 17
states allow NPs to practice at the full extent of their
training and education with independent practice."
3)NP training and educational requirements . A NP is 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
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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 Masters degree, and many further pursue a doctorate in
nursing. There are currently 17,531 NPs licensed in CA.
NPs may specialize in disciplines such as acute pediatric
care, adult gerontological care, family care, women's health,
and mental health nursing.
4)This bill in practice . This bill would require NPs who wish
to practice independently to be nationally certified. To
qualify for national certification, an applicant must have
graduated from specified nationally accredited programs, have
a minimum of 500 clinical hours of faculty-supervised
practice, and demonstrated completed coursework in advanced
physical assessment, advanced pharmacology, and advanced
pathophysiology.
This bill also requires an NP to have worked under physician
supervision for the equivalent of two years of full-time work
for certain practice models, and three years for solo
practice. These timelines are based on the work of Patricia
Benner, who described domains and competencies for advanced
nursing practice, and the research of Karen Bryckzynski, who
explored the clinical practice of NPs. These competencies are
referenced by the U.S. Department of Health and Human Services
in guidance reports.
5)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
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. A
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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.
5)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.
6)Prescribing authority . NPs may furnish drugs by obtaining a
DEA number to prescribe Schedule II-V drugs pursuant to a
protocol and standardized procedures. The DEA considers a 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.
7)Supervision requirements . Of the 17,500 NPs in California,
12,500 are furnishing NPs. 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, meets regularly with the NP, review patient charts, or
be within a geographic proximity.
8)The Affordable Care Act (ACA) & NP Autonomy . The federal
Affordable Care Act (ACA) was passed in March 2010 to provide
quality, affordable healthcare for all Americans and improve
the quality and efficiency of that care. The January 2014
implementation date of ACA will result in millions more
Californians entering the primary care market. Primary care
providers will be responsible for health promotion, disease
prevention, early diagnosis, and the coordination of care with
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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. This shortage is exacerbated by the fact
that fewer physicians are choosing to enter the field of
primary care than are leaving it.
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 notes that the contention
that APRNs 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. 16 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 ACA.
11)Improving access to primary care . It is estimated that the
majority of the seven million Californians currently without
health insurance will be able to access primary care after the
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implementation of ACA. According to the sponsor, allowing
independent NP practice will likely make that care more
accessible, reducing the strain on the already overburdened
physician population. NPs have been found to have a greater
propensity to care for underserved populations and frequently
have less student debt, making them more likely to work in
environments with lower profit margins, such as rural areas.
There are two major ways in which the independent practice for
NPs provided by this bill may provide increased access to
primary acre services:
a) Retail clinics . Retail clinics have grown substantially
over the last decade. Retail clinics are medical clinics
who contract to operate out of pharmacies, grocery stores,
and "big box" stores, such as Target. California's ban on
the corporate practice of medicine limits operation of
these clinics to professional medical corporations, so
these clinics must be 51% physician owned. Retail clinics
primarily provide care for simple acute conditions-such as
bronchitis and vaccinations-typically delivered by a nurse
practitioner.
The Rand Corporation, a nonprofit research organization,
reports that the overall cost of care at retail clinics is
substantially lower than in physician offices, urgent care
centers, and emergency departments - and the care is
comparable in quality. The Rand Corporation study further
indicates that these clinics do not appear to be disrupting
the traditional physician-client relationship, because 60%
of retail clinic consumers report having no primary care
physician.
It is anticipated that these clinics may proliferate if NPs
are able to operate without physician supervision because
it would become more cost-effective for these clinics to
employ greater numbers of NPs. Retail clinics are
currently constrained by the 1:4 ratio of physician
supervision of prescribing NPs.
b) Medi-Cal and Medicare populations . 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
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women, and seniors. Medicare is the federal government
health insurance program for seniors and persons with
disabilities.
ACA is expanding Medi-Cal eligibility and the California
HealthCare Foundation estimates that more than 1.4 million
Californians will be newly eligible for coverage.
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.
NPs in California may 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.
14)Accountability provisions . This bill will require
independent NPs to have 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.
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15)Arguments in support . AARP writes, "With the implementation
of the Affordable Care Act and the expansion of Medi-Cal,
millions more Californians will be seeking affordable, quality
health care. We need to make better use of the health care
resources we have in our state. This bill does this by
allowing nurse practitioners to practice up to the full extent
of their education and training and provide quality health
care without (to an extent) unnecessary, restrictive
oversight. By removing most of the unnecessary supervision
requirements, SB 491 will increase Californians' access to and
choice among quality health professionals, reduce wait times
and reduce paperwork burdens.
"Nurse practitioners are educated and trained to provide high
quality primary health care. They diagnose and manage
patients' care, prescribe medications and refer patients to
specialists. Decades of evidence, recently noted by the
Institute of Medicine and the National Governors Association,
demonstrate that nurse practitioners provide safe, effective
care whether or not they are supervised by physicians."
16)Arguments in opposition . The California Medical Association
writes, "Allowing nurse practitioner practice without
standardized protocols and physician supervision reduces
patient safety and quality of care. Patients are best served
by a physician-led team that can provide high quality and
cost-effective care. Nurse practitioners are an important part
of the healthcare team and, when practicing under physician
supervision, can significantly increase access to quality
medical care in a community. Current law requires that nurse
practitioner practice include the development and use of
standardized protocols and physician review and approval of
patient treatment plans. These requirements are in place to
ensure that patient care includes the involvement and
oversight of a physician who is substantially more qualified
and experienced to oversee patient care, both in depth and in
years of education and training, than a nurse practitioner
practicing alone."
17)Author's amendment . The author would like to amend the bill
to remove the independent practice pathway in which an NP may
practice without physician supervision after at least 6,240
hours of supervised practice.
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18)Related legislation . AB 1000 (Wieckowski and Maienschein)
would allow patients to self-refer to a physical therapist
(PT) and receive treatment for 45 calendar days or 12 visits,
whichever comes first, before being seen by a physician and
receiving sign off on the treatment plan initiated by a PT.
AB 1000 is currently in the Senate Appropriations Committee.
AB 1208 (Pan) defines a "medical home" and "patient centered
medical home" as a health care delivery model in which a
patient establishes an ongoing relationship with a personal
primary care physician or other licensed health care provider
acting within the scope of his or her practice. The bill
states that the provider shall work in a physician-led
practice team to provide comprehensive, accessible, and
continuous evidence-based primary and preventative care, and
to coordinate the patient's health care needs across the
health care system in order to improve quality and health
outcomes in a cost-effective manner. AB 1208 is currently on
the Senate floor.
SB 352 (Pavley) authorizes medical assistants to perform
technical supportive services in any medical setting upon
specific authorization of a physician assistant, NP, or
certified nurse-midwife without a physician on the premises.
SB 352 is currently on the Assembly floor.
19)Previous legislation . SB 726 (Ashburn) of 2010 was an effort
to promote healthcare in rural areas allow qualified health
care districts and qualified rural hospitals, as specified, to
directly employ physicians under an existing pilot project.
SB 726 was held in the Senate Business, Professions, and
Economic Development Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
AARP
American Nurses Association
American Nurses Association, California
Association of California Healthcare Districts
Bay Area Council
Blue Shield of California
Board of Registered Nursing
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C.W. Brower, Inc.
California Association for Nurse Practitioners
California Association of Clinical Nurse Specialists
California Association of Nurse Anesthetists, Inc.
California Association of Physician Groups
California Association of Public Hospitals and Health Systems
California Family Health Center
California Federation of Teachers
California Hospital Association
California Nurse-Midwives Association
California Optometric Association
California Pharmacists Association
California Primary Care Association
California Society of Health-System Pharmacists
California State Association of Occupational Health Nurses
Californians for Patient Care
City of Turlock
Congress of California Seniors
Dignity Health
Indiana State Nurses Association
Latino Community Roundtable
National Asian American Coalition
National Association for the Advancement of Colored People
National Association of Pediatric Nurse Practitioners
Private Essential Access Community Hospitals
Stanford Hospital and Clinics
United Nurses Associations of California/Union of Health Care
Professionals
University of California
University of California, San Francisco
Western University of Health Sciences
134 individuals
Opposition
Aesthetic Institute
AFSCME
Alameda-Contra Costa Medical Association
American Academy of Pediatrics, California
American Federation of State, County and Municipal Employees,
AFL-CIO
American Society for Dermatologic Surgery Association
Blind Children's Center
CalDerm
California Academy of Eye Physicians and Surgeons
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California Academy of Family Physicians
California Chapter of the American College of Emergency
Physicians
California Medical Association
California Podiatric Medical Association
California Psychiatric Association
California Right to Life Committee, Inc.
California Society of Anesthesiologists
California Society of Plastic Surgeons
Canvasback Missions, Inc.
Consumer Attorneys of California
Diabetes Coalition of California
Here For Them, Inc.
Latino Physicians of California
Let's Face it Together
Lighthouse Mission for Christ
Medical Board of California
Minority Health Institute, Inc.
Osteopathic Physicians and Surgeons of California
The Dream Machine Foundation
Time for Change Foundation
Union of American Physicians and Dentists/AFSCME-Local 206
Ventura County American Chinese Medical Dental Association
111 individuals
Analysis Prepared by : Sarah Huchel / B.,P. & C.P. / (916)
319-3301