State Senator Ed Hernandez, D-West Covina, has reintroduced legislation that would allow nurse practitioners to treat patients and obtain diagnostic tests without the sign-off from a physician. He serves as chair of the Senate Health Committee.

“This is not a new fight here in California, but with 2.5 million previously uninsured Californians receiving health coverage under the Affordable Care Act, we need to pass this law to ensure that more trained health care professionals are available,” said Hernandez, according to the Sacramento Business Journal.

He added, “It is well documented that California is facing a shortage of primary care physicians and giving trained nurse practitioners full practice authority would go a long way to help remedy this situation.”

2013: Revival of SB493

Last legislative session, Hernandez authored Senate Bill 493, which passed the Senate on a 22-12 vote. Among the expanded responsibilities included in that earlier bill were “ordering durable medical equipment, prescribing drugs, establishing diagnoses, referring patients, performing procedures that are consistent with their training, and delegating tasks to medical assistants, among others.”

The 2013 measure eventually stalled in the State Assembly, due in large part to the concerns from the California Medical Association. The CMA, which represents 40,000 members of the state’s medical community, argued Hernandez’s proposal would compromise patient safety.

“Nurse practitioners are an important part of the health care team and, when practicing under physician supervision, can significantly increase access to quality medical care in a community,” the CMA wrote in opposition to SB493, according to a legislative analysis. “Allowing nurse practitioner practice without standardized protocols and physician supervision reduces patient safety and quality of care.”

Hernandez has yet to offer specific language for this session’s bill, Senate Bill 323. In order to meet the February 27 bill introduction deadline, he introduced placeholder language, also known as a “spot” bill.

Health care system stressed by Affordable Care Act

Fewer than 5 percent of the state’s 408,413 nurses have the advanced training and years of experience to be designated a nurse practitioner. As of Sept. 2013, 18,541 active nurse practitioners were registered and licensed by the Board of Registered Nursing.

Hernandez contends these nurse practitioners can help address the increased demands on the country’s health care system, which is under stress from the wave of new patients that signed up for insurance rather than pay a fine under the Affordable Care Act, also called Obamacare. In 2014, 6.7 million people obtained private health insurance, according to the Associated Press, “flooding a primary care system that is struggling to keep up with demand.”

Here in California, an estimated 1.2 million people have enrolled in new private health plans since the launch of the ACA, according to the San Jose Mercury News. That doesn’t include another 2.7 million new enrollees in Medi-Cal, the state’s taxpayer-funded health program. More than 12 million people, roughly a third of the state’s population, are enrolled in Medi-Cal.

Millions of new patients, without a corresponding increase in medical care providers, have led to longer wait times and people complaining of difficulty finding doctors accepting new patients — a problem that, Hernandez says, can be addressed through expanded scope-of-practice.

“If we truly want to increase access to quality care, especially in areas of our state where the provider shortage is at its worst, then we must allow trained medical professionals like Nurse Practitioners the ability to practice to the full extent of their training,” Hernandez said in a statement last year. “It’s unacceptable to mandate people purchase health coverage without taking steps to ensure those same people are able to use their coverage to see a qualified health care provider.”

A 2014 report by the Bay Area Council Economic Institute argued that expanding the scope-of-practice for nurse practitioners is “one of the most effective steps that states can take to increase the supply of primary care providers while maintaining high quality and driving down costs.”

In its placeholder language, SB323 promises it “will assist in addressing the primary care provider shortage by removing delays in the provision of care that are created when dated regulations require a physician’s signature or protocol before a patient can initiate treatment or obtain diagnostic tests that are ordered by a nurse practitioner.”

Shorter wait times with lower professional standards

It’s not yet clear how many nurse practitioners would be covered by Hernandez’s proposal. In 2013, Hernandez began with a requirement that nurse practitioners receive 6,240 hours under the supervision of a physician. The bill was later amended to reduce the time by a third to just 4,160 hours.

That change reflects the trade-off for proponents of scope-of-practice expansion: in order to add a meaningful number of new health care providers, the change requires a reduction in professional standards. Two-thirds of the state’s nurse practitioners already “have furnishing numbers … which allows them to order or furnish drugs and devices to patients using approved standardized procedures,” according to the legislative analysis for Hernandez’s 2013 bill. In other words, the majority of nurse practitioners already have one of the expanded powers sought with the proposal.

As CalWatchdog.com has reported, Hernandez unsuccessfully introduced a trio of scope-of-practice bills during the 2013-14 legislative session. The most controversial of the three measures, Senate Bill 492, would have expanded the scope-of-practice for optometrists.

Hernandez and his wife, Diane, operate an optometry practice in La Puente. As of June 2013, Hernandez had accepted more than $140,000 in campaign contributions from optometrists.

“The success of the Affordable Care Act depends on the success of the health exchange in California,” Hernandez told the Assembly Health Committee Tuesday at a hearing I attended. “The success of the exchange is of the utmost importance.”

A fact sheet from Hernandez’s office claims the bills address the current “primary care physician workforce shortage” that will be compounded by the incoming flood of 3 to 7 million Californians eligible for health insurance with Obamacare’s 2014 implementation. At each hearing on the three bills, Hernandez explained that efforts to train more primary care physicians will take seven to 10 years. In the meantime, millions of patients will be waiting to access health care as Obamacare brings in more patients.

SB 491 would have expanded what nurse practitioners can perform. It was killed in the Assembly Business, Professions, and Consumer Protection Committee last week.

SB 492 would have expanded the scope of the practice of optometrists; I wrote about it Monday. It was pulled by Hernandez after failing to pass the Assembly Business, Professions, and Consumer Protection Committee.

The third bill in the package, SB 493,  passed the Assembly Health Committee Tuesday. SB 493 would authorize a pharmacist to administer drugs and biological products that have been ordered by a prescriber, such as a medical doctor. And it would allow the pharmacist to perform other functions, including furnishing self-administered hormonal contraceptives, nicotine replacement products, and medications not requiring a diagnosis. The bill also authorizes pharmacists to order tests on drug therapies.

Opponents say it’s risky to issue birth control medications without a medical doctor involved because of possible complications. For example, WebMD Health News reported, “Birth control pills that contain the hormone drospirenone must now carry a warning that they may increase the risk for potentially fatal blood clots, according to the FDA.”

Pharmacists

“Pharmacists are highly trained and widely deployed throughout communities and so it makes perfect sense to use this health care workforce to provide basic primary care services to our residents,” according to the American Association of Pharmacists.

California Society of Anesthesiologists and the California Medical Association canceled their objections to SB 493 after amendments were made to tighten eligibility for the pharmacists whose duties would be expanded.

The CSA and CMA said the bill would create an “Advanced practice pharmacists” classification, which would allow pharmacists to evaluate and manage disease and health conditions, in collaboration with other health care providers.

The CSA and CMA testified that health care should be delivered in a coordinated team approach with a physician involved in patient care.

“We believe physician ‘extenders’ are beneficial for patient care and extend the reach of physicians,” the CSA website says. “However, allowing mid-level providers independent medical practice and prescribing authority creates a fragmented, uncoordinated, and dangerous situation for patients in California.”

Details

Under the bill, pharmacists could:

* Provide consultation, training and education to patients about medication therapy, disease management and prevention;

* Participate in multi-disciplinary review of patient progress, including access to medical records;

* Furnish contraceptives (including non-emergency), prescription smoking cessation drugs and devices and prescription medications for travel purposes;

* Order and interpret tests for monitoring and managing efficacy and toxicity of medication therapy;

* Independently initiate and administer routine vaccines for persons 3 years of age and older.

SB 493 creates a new “advanced practice pharmacist,” who would have to do one of the following:

* Earn additional certification in an undefined area of practice;

* Complete a one-year post graduate residency that includes provision of direct patient care as part of an interdisciplinary team;

* Have experience managing patients for at least one year through a collaborative practice agreement or protocol with specified provider or entity.

SB 493 would allow the new “advanced practice pharmacist” to:

* Perform physical assessments;

* Order and interpret medication therapy related tests;

* Refer patients to other health care providers;

* Initiate, adjust or discontinue medication therapy in collaboration with other health care providers;

* Participate in the evaluation and management of disease and health conditions in collaboration with other health care providers.

Under SB 492, optometrists would diagnose and treat any disease relating to the eye or any medical condition with and ocular manifestation, essentially allowing optometrists to practice ophthalmology. The California Medical Association opposes SB 492.

Naturally, the California Optometric Association is thrilled with the bill and has commensurately made significant contributions to legislative committee members of the committees responsible for hearing and passing the bill.

And now, with SB 492 in the Assembly Business, Professions and Consumer Protection committee Tuesday, the campaign is plastering the airways with new radio spots, paid for by the  California Optometric Association.

As the ad opens, a woman says “it’s time for other health care specialists to step forward and be allowed to deliver… so your neighbors have access to the health care they have been promised.” She says go to www.bridgingtheprovidergap.com, and says the ad is paid for by the California Optometric Association.

So I went online to find out who Bridging the Provider Gap was. The website says, “Californians for Accessible Healthcare is a coalition dedicated to filling the ‘provider gap’ in California’s health care system. It includes the California Association for Nurse Practitioners www.canpweb.org, California Society of Health-System Pharmacists www.chsp.org,California Optometric Association www.coavision.org and California Pharmacists Association www.cpha.com.

But the real shocker was when I saw the News / Press Contact for Bridging the Provider Gap:

“Steven Maviglio, Forza Communications, 916.607.8340.”

Yup, the same Steven Maviglio who works as a Political consultant, and is currently serving as spokesman for Assembly Speaker John A. Pérez, for $9,500 a month, paid by the Legislature and taxpayers.

In March when he announced the job with Perez, Maviglio said he didn’t have any clients involved in Assembly matters.

“It seems like he’s serving two masters,” said Jessica Levinson, an expert in political ethics at Loyola Law School in Los Angeles, in a recent story about Maviglio, by the Sacramento Bee.

“He may be doing a great job serving both of them, and he may not be doing anything improper,” Levinson said. “But at the very least it feels uncomfortable and improper because he is serving a legislator and serving clients who seek to influence that legislator.”

Campaign contributions

Hernandez has also accepted more than $140,000 in campaign contributions from optometrists, optometry businesses and the California Optometric Association, according to the California Secretary of State, and reported by CalWatchdog contributor John Hrabe.

This is how politics works in the world of special interests. And according to  Hrabe, “Maplight, a nonprofit research organization that reveals money’s influence on politics, reports Hernandez’s single largest contributor over the last four years has been the American Optometric Association, which has donated $33,700 to his campaign committees.”

So why are nurse practitioners and optometrists pushing legislation to do the work of physicians without the background, education and training?

At issue are three bills, SB 491, SB 492, and SB 493, by Sen. Ed Hernandez, D-West Covina, which seek to change the “scope of practice” for medical paraprofessionals —

nurses, licensed vocational nurses, nurse practitioners and physician assistants — along with optometrists and pharmacists.

A legislative committee hearing was held Tuesday on the bills. The doctors who oppose two of the bills made a strong case that there is much more at stake than concerns about a physician shortage caused by the implementation of President Obama’s overhaul of the U.S. health-care system.

Doctor: ‘Solution’ creates bigger problem

To better understand why doctors oppose elevating nurse practitioners to private practice, and allowing optometrists to do surgery, I met with emergency room physician Tom Sugarman, M.D., president of California Chapter of the American College of Emergency Physicians.

Sugarman said Hernandez’s bills say nothing about, nor will they do anything, to address access to health care, or what he characterized as the perceived shortage of primary care physicians in underserved areas in California. “They think these bills will solve a problem which doesn’t even exist,” Sugarman said. “They instead are creating a bigger problem.”

Sugarman said SB 491 “will not increase the number of nurse practitioners, or move them to rural and underserved areas.”

“But we will have a new class of opiod prescription writers,” Sugarman added.

Hernandez, who chairs the Senate Health Committee, introduced  SB 491, SB 492, and SB 493, “scope and practice” bills, to address the anticipated doctor shortage as Obamacare implementation takes place in California.

SB 491, the nurse practitioner bill, did not pass the Assembly Business, Professions and Consumer Protections Committee on Tuesday. However, it was held over for reconsideration and will be heard again next week, giving Hernandez time to wrangle a couple of votes from committee Democrats, most of whom abstained from the vote.

SB 493, the pharmacist bill, passed unanimously. Significantly amended, SB 493 would now increase training and education for pharmacists, creating an advanced practice pharmacist degree that would allow for some expanded medical care under strict protocols and in conjunction with a physician.

‘A thinly veiled attempt to capitalize on health reform’

But SB 491 and SB 492 would allow optometrists and nurse practitioners to practice medicine without supervision of physicians. Proponents of the bills claim that allowing them to diagnose and treat patients without physician supervision will alleviate the reported doctor shortage in some parts of the state, which is expected to worsen in 2014 with implementation of the Affordable Care Act, also known as Obamacare.

“In reality, both SB 491 and SB 492 are a thinly veiled attempt to capitalize on health reform,” said Dr. Sugarman.

The fact that Hernandez, an optometrist, is authoring a bill from which he would personally benefit hasn’t gone unnoticed.

“So-called scope expansion is a potential financial windfall for these allied health professionals, who would be able to administer lucrative services like Botox injections,” said Dr. Sugarman. “But it would also enable them to diagnose and treat patients with serious medical conditions and complicated diseases, like diabetes and glaucoma. To ensure patient safety and quality of care, it’s critical to have the physician as the point of contact for care.”

Sugarman said optometrists would clearly like to be able to do more than they are allowed to do. “But people are better off with no care than bad care,” he said.

“Putting forth the bills shows Hernandez has limited understanding of how the body works,” Sugarman said.

Existing law requires optometrists in diagnosing or treating eye disease to be held to the same standard of care as physicians and surgeons and osteopathic physicians and surgeons. SB 492 would expand this requirement to include diagnosing other diseases.

“To diagnose and treat diabetes … I wouldn’t do that!” said Dr. Sugarman. “If that’s what you want to do, then go to medical school and do a residency.”

Ophthalmologists, optometrists and opticians all provide eye-care services, but optometrists and opticians are not physicians. Hernandez’s bill would allow optometrists to do many procedures currently only performed  by ophthalmologists.

According to the Harvard Journal of Ophthalmology, an optometrist is a health-service provider who is involved exclusively with vision problems. Optometrists are specifically educated and trained by an accredited optometry college in a four-year course but do not attend medical school.

Harvard explains an ophthalmologist is a doctor of medicine, M.D., or doctor of osteopathy, D.O., who specializes in the medical and surgical care of the eyes and visual system and in the prevention of eye disease and injury. An ophthalmologist has completed four or more years of college premedical education, four or more years of medical school, one year of internship and three or more years of specialized medical and surgical and refractive training and experience in eye care.

Tougher to recruit nurses than doctors?

“It’s an easy tag line to say these bills will expand access to care,” said Dr. Sugarman. “It sounds great, but they have yet to prove how.”

Sugarman said he has far more trouble recruiting nurse practitioners and physician assistants than doctors to his medical practice. “I’ve never heard any nurse practitioner say she can’t find a doctor to sign off on protocol. Those pushing this bill just don’t want supervision.”

As for the optometrist bill, Sugarman said Hernandez is using his power and leverage in the Legislature to push SB 492. According to Sugarman, without Hernandez’s legislative power, the bill would have no legs.

“Allowing them to practice medicine with no additional training, oversight or protocols compromises quality of care and patient safety,” Sugarman said. “It also threatens collaborative, team-based care in which physicians, nurse practitioners and other professionals play roles for which they are specifically trained.”

In preparation, Sen. Ed Hernandez, D-West Covina, who is an optometrist, introduced three bills earlier in the year to expand the “scope of practice” for California’s para-professional medical practitioners — nurses, licensed vocational nurses, nurse practitioners and physician assistants — along with optometrists and pharmacists.

SB 491, nurse practitioner licensing, SB 492, optometrist licensing, and SB 493, pharmacy practice, were scheduled for a hearing Tuesday in the Assembly Business, Professions, and Consumer Protection Committee.

SB 492, the optometrists licensing bill, was postponed until next week. SB 493 was passed unanimously by the committee.

However, SB 491 proved far more contentious, taking up nearly three hours in the hearing. It is still alive — but it’s on life support.

Based on some testimony, the measure to expand the roll of nurse practitioners appears the perfect conduit to expand Medi-Cal, the state’s publicly subsidized welfare health coverage. SB 491 would authorize nurse practitioners to not only work independently from doctors; they would be allowed and even encouraged to accept Medi-Cal patients.

Do nurses need ‘supervision’ to practice medicine?

As Hernandez warned, the legislation is controversial and politically charged. The sharpest focus was on the concept of “supervision,” which came up hundreds of times during the hearing. Doctors who testified were adamant that nurse practitioners provide excellent care — under the supervision of a physician.

Hernandez said he authored the bills because people of color, living in rural areas and inner cities, already lack access to adequate medical care. With Obamacare implementation underway, the existing doctor shortage will only be made worse when millions of currently uninsured Californians are added to the government sponsored health care plan, and more specifically, to Medi-Cal.

“Here in the state of California, we have a capacity issue. We have a work-force shortage,” Hernandez said. He warned the problem is already at a breaking point in inner-cities, as well as rural parts of the state. Up to 7 million uninsured Californians will be required to be insured as of next year, Hernandez said.

Hernandez invited Catherine Dower of the UCSF Center for Health Professions to testify on behalf of his bills. Dower, who co-directed the Pew Health Professions Commission’s national Taskforce on Health Care Workforce Regulation and was a principal author of its reports on health professions regulation, spoke at the previous hearing on expanding the scope of practice for nurse practitioners.

Dower referred to a study by the Institute of Medicine which found the barriers should be removed from the nursing “scope of practice,” allowing more nurses to expand responsibilities.

National support for expanding nurses’ role

At the March hearing on SB 491, Dower referenced former U.S. Sen. Tom Daschle’s blog post, which recommended expanding the “scope of practice” for all primary care providers, including nurses. Daschle, now a lobbyist, also recommended giving the government more power over decision making.

Dower said she regularly testifies on the subject around the country. “Economists are finding in the 17 states without physicians onsite, access improved for adults 16 percent to 20 percent, and 17 percent for children,” Bower said.

But the studies Bower referred to used nurse practitioners from medical teams, and not practitioners in sole private practice.

This is where doctors warned about the limitations of nurse practitioners.

“SB 491 is bad medicine,” said Dr. Ruth Haskins, a 30-year OB/GYN physician, and chairwoman of the legislative council of the California Medical Association. “The best kind of care is collaborative medicine,” Haskins said.

Doctor: Nurses have much less training

Haskins said the protocols and procedures which guide nurse practitioners how to care for their patients come from physicians. “Physician involvement is key in this process.”

She explained doctors have thousands more hours of training than nurse practitioners, as well as a medical degree. And she warned if SB 491 passes, 14,000 nurse practitioner will be able to prescribe opiod medications — narcotic pain medication that resembles morphine in its pharmacological effects.

“Nurse practitioners are already seeing patients, and most already have a full docket of patients,” Haskins said. “In teams, nurse practitioners can learn more under physician oversight.”

Paul R. Phinney, a doctor who is president of the California Medical Association, warned that nurse practitioners reach their level of competence and need a physician’s supervision. And Phinney said they are not necessarily a cost-effective solution. “Nurse practitioners order more lab tests, CT scans and medications,” Phinney said.  Doctors are able to more quickly make accurate and efficient diagnosis than nurse practitioners, because of training and scope of experience, according to Phinney. And Phinney reiterated the importance of the medical team, where nurse practitioners have an important role.

Phinney said that after Arizona passed a similar bill allowing nurse practitioners to practice independently from doctors, nurses did not flock to the rural and inner city areas. “It’s worse in California,” Phinney said. “Medi-Cal rates are the worst in the nation. What would incent nurses to flock to rural areas?”

“SB 491 fragments care. We need collaborative team care,” Phinney added.

California Academy of Family Physicians President Dr. Carol Havens concurred, and said while the CAFP has been a longtime supporter of quality collaborative care, there is no evidence nurse practitioners will set up practices in underserved areas. “Nurse practitioners will practice for three years, before leaving for more money in lucrative practices, whereas family physicians practice more than 20 years,” Havens said.

SB 491 would only require nurse practitioners to practice for three years under the supervision of a physician before they can set up their own private practice. Havens warned about the many “medi-spas” springing up all over California, and the serious medical problems arising from the lack of physician supervision.

 ‘Supervision’: a definitional snafu

The California Business and Professions Code section 2052 makes it a crime to practice medicine without a license.

While this rule precludes unlicensed individuals from performing most medical procedures without a medical license, there are exceptions that allow nurses to administer Botox and other cosmetic treatments offered at medi-spas.  Some nurses perform these procedures when a doctor is not on site. However, the law says all procedures must be performed and conducted under the “supervision” of a physician, but the specific definition of doctor “supervision” is unclear. Even the Department of Consumer Affairs, which is the oversight agency, charged with overseeing both the nursing and medical boards, is unclear on the definition of supervision.

Consumer Affairs department spokesman Russ Heimerich recently told the Ventura County Star story that defining “supervision” is “the $21 million question.” According to Heimerich, “What it’s [supervision] been taken to mean so far is that if a physician has standing orders or has confidence in the nurse and has done the medical exam to do the procedure, the physician doesn’t have to be present.” However, “the physician needs to have examined the patient first and prescribe the procedure.”

Havens explained the situation with nurse practitioners and doctors is similar to paralegals and lawyers; lawyers do not allow paralegals to oversee legal clients and cases without supervision.

The committee was divided on the vote; six committee members would not vote on the bill,  five voted aye, and four  voted no.  SB 491 failed, but it was granted reconsideration.

It appears Sen. Hernandez has only one week to talk the members who declined to vote into changing their minds.