State Government Relations
Overview of Legislative and Regulatory Activity
1996 Summary
Table of Contents
Licensure and Regulation
Scope of Practice
Telehealth
Medicaid
Managed Care
Workforce and Quality
Ballot Inititatives
State Legislative Summary -- Nursing Practice Issues
State Legislative Summary -- Other Legislative Trends
LICENSURE AND REGULATION
Restructuring of Health
Profession Regulation
Changes in health care financing and delivery structures are driving changes in the current health
care provider licensing system. State legislatures have considered changes in the regulation of
nursing from amending nurse practice act (see scope of practice section) to a major overhaul of
the entire state licensure system.
At the same time, The Pew Health Professions Commission released a report in December of
1995, Reforming Health Care Workforce Regulation: Policy Considerations for the 21st
Century. The Commission recommended changes in licensure systems "to better meet the
demands of an evolving health care system." Pew staff have been speaking to legislators,
regulators, health care professionals and others this year to promote policy considerations
outlined in this report as well as stimulate comments on the recommendations. ANA submitted
comments on the recommendations to Pew in December of 1996. The Commission has received
new funding for 1997 to address regulations governing health providers given the past
recommendations and to focus on new methods for financing the training of practitioners in
non-hospital settings (graduate medical education).
The Pew Charitable Trusts awarded 14 individual grants on December, 12 1996, to address
the reform of health profession regulation. The American Academy of Nursing
received $20,000 to convene a summit meeting with major nursing organizations to reach
consensus on regulation for the future that will promote effective health outcomes and protect the
public. ANA has been involved in the planning of the summit meeting.
The Nebraska Nurses Association/Nebraska Board of Nursing received a $20,000
grant to evaluate Nebraska's current nursing regulatory system in relationship to the Pew
Recommendations and streamline regulatory processes for all levels of providers of nursing care.
Other recipients of the grants include the Interprofessional Workgroup on Health Professions
Regulation (coalition of 17 different health care professions); National Black Nurses Foundation;
National Conference of State Legislatures; Maricopa County Community College District (two
grants); National Council of State Boards of Nursing; State College of Optometry - State
University of New York; Colorado Health Professions Panel; National Citizens' Coalition for
Nursing Home Reform; Eastern Virginia Medical School; Council on Licensure Enforcement and
Regulation; and Michigan State University.
In 1996, a variety of legislation was introduced to address the current licensure systems. In
Oregon, the Department of Administrative Services is conducting a study that will look
at all the state licensure boards and determine if it is possible to consolidate all health boards and
how quality and efficiency could be improved.
Legislation was introduced in Missouri that removes authority from regulatory
boards and places it with the division director, including accounting and financial functions. The
Board of Nursing would only be responsible for activities that require the use of board members
judgements and expertise. South Carolina introduced legislation that would authorize
the Department of Labor, Licensing and Regulation to provide administrative regulation of
professions and occupations and a framework for advisory and disciplinary panels.
Efforts have been underway in Colorado to deregulate government entities.
Legislation was introduced but did not pass, that would have required supervision of professions
and occupations now performed by the various agencies within the Department of Regulatory
Agencies to be done by private trade organizations. Similar legislation is anticipated to be
introduced in 1997.
The Virginia legislature passed legislation that would require the Board of Health
Professions to study and prepare a report for the Governor and the General Assembly by October
1, 1997. The report would include findings and recommendations on the appropriate criteria to be
applied in determining the need for regulation of any health care occupation or profession.
In Utah, one of the technical advisory committees of the Health Policy
Commission is examining state licensure and certification for health care professionals by
comparing the current system to recommendations released by the Pew Health Professions
Commission on Workforce Regulation. Exploration of ways to assess continuing competence is a
priority.
SCOPE OF PRACTICE
Long Term Care
Nursing practice has been threatened by the replacement of nurses with unlicensed assistive
personnel and other types of health care providers. For example in the long-term care arena,
changing options for the provision of long-term services such as personal attendant services and
service locations outside of institutions may bypass nurses. In addition, state governments are
offering a wide array of long-term care options beyond nursing facilities such as in-home services,
adult foster care, assisted living facilities, and residential care. These facilities do not typically
have full time nurses on staff.
Some advocates from the disability and aging movements believe that decision making for
long term care services should be shifted from the medical establishment to consumers and their
families and long-term services have become too "medicalized." Some critics believe state nurse
practice acts act as barriers to the expansion of long-term care in home and community based
settings and decrease consumer's ability to choose and manage the services they receive. The
result is a long-term care system that is over-medicalized and more expensive than necessary. In
addition, some believe that there needs to be a differentiation between "health maintenance tasks"
and "nursing tasks" and that many tasks previously performed by nurses can be safely performed
by non-licensed personnel.
Massage Therapy
Virginia and Maryland passed legislation to certify massage therapists under
the Board of Nursing. When first introduced, the bill language in Virginia did not differentiate the
practice of massage therapy from the practice of nursing. The Virginia Nurses Association
worked successfully to change this language and solidify the practice of nursing. A bill was also
passed in South Carolina that establishes licensure requirements for massage therapists.
Emergency Medical Services
Emergency medical service personnel (EMS) have been attempting to expand their scope of
practice into areas of wellness, health education and immunizations. Several states have also been
grappling with the use of EMS personnel in emergency departments. On the issue of emergency
medical technicians, the North Dakota attorney general issued a critical ruling related
to nursing practice. The attorney general's opinion concluded that a physician cannot assign
medical tasks embraced within the definition of any profession to EMS personnel in a hospital
setting on a routine, non-emergency basis unless the EMS personnel is licensed by the appropriate
professional board to perform the services.
Board of Nursing
The Nevada Board of Nursing recently attempted to expand the scope of practice for
nursing assistants. The proposed rules would have allowed nursing assistants to perform
additional services beyond the "basic restorative services" that they are currently allowed to
perform. Further, it would have allowed the institution to determine these tasks. Both the Nevada
Nurses Association and the American Nurses Association successfully fought to have this
language defeated.
Unlicensed Assistive Personnel
(UAPs)
In a recently enacted, long-term care bill in Maine, language was included that would
amend the nurse practice act to require nurses to coordinate and oversee patient care
services provided by unlicensed health care assistive personnel (the bill does not define
the term "patient care"). Currently Maine nurses may delegate appropriate nursing services only
to licensed practical nurses and qualified nursing assistants.
Without expanding the authority of nurses to delegate beyond these two categories, the
legislation would allow institutions to assign patient care to anyone they choose regardless of
education, preparation or competence, and require nurses to oversee and coordinate their
activities. Hospitals and other health institutions would then be able to determine the
qualifications and competency of such health care personnel.
Oklahoma authorized the Board of Nursing to oversee UAPs and RNs to delegate
tasks to UAPs. The law creates a council to develop a list of tasks and duties that UAPs will be
allowed to perform.
New York State, with the support of the New York State Nurses Association,
introduced legislation that was later vetoed by the governor that would have required the Office
of Professional Discipline to seek civil enforcement proceedings against unlicensed assistive
personnel who illegally practice a profession.
Advanced Practice
Several SNAs were successful in influencing the passage of legislation pertaining to direct
reimbursement for advanced practice registered nurses (APRNs.) Legislation in
Tennessee and Iowa requires insurers to reimburse for services provided
within the scope of practice of APRNs as long as services are covered in the contract. New
Mexico legislation requires the state Corporation Commission and the Department of
Insurance to study and proposed corrections to the state's insurance code for services provided by
APRNs. In Florida, insurers are required to establish eligibility criteria for
psycho-therapy for licensed health care providers including APRNs. The bill also bars insurers
from
discriminating against health care providers solely on the basis of a practitioner's license. (See
enclosed chart)
APRNs have made progress in expanding their scope of practice. The Ohio Nurses
Association, after eleven years of lobbying, helped pushed through legislation that acknowledges
four categories of advanced practice nursing in the nurse practice act.
The Kentucky Nurses Association aggressively pursued prescriptive authority.
After much debate, both chambers of the Kentucky Legislature passed the proposal, and the
Governor signed it into law. Oklahoma also granted prescriptive authority to nurses in
the state. Florida legislation calls for a taskforce to conduct a study regarding
prescribing controlled substances by APRNs. Kansas expanded prescriptive authority
for registered nurses anesthetists. Louisiana is developing rules governing the
development of demonstration projects using APRNs to provided prescriptive services under the
direction of physicians in certain underserved area.
The Nebraska Nurses Association spearheaded efforts to enact a "Nurse Practice
Act" for APRNs. The proposal expands prescriptive authority to include schedule II controlled
substances. In addition, the legislation removes all "delegated medical acts" and places the nurse
practitioners' scope of practice in a statute as well as exempts APRNs from medical practice.
Furthermore, the Board of Medicine would be removed from joint rulemaking and approval of
practice agreements.
Licensed Personnel
Legislation was passed in Tennessee that amends the pharmacy practice act and
recognizes pharmacists as "primary care providers and provides for a "collaborative agreement"
between pharmacists and prescribers for administration of drugs and physical assessments of
patients.
Nurse Practice Acts to be Opened in
1997
The following states anticipate opening their Nurse Practice Acts (NPA) in 1997:
Alabama is under sunset review by the legislature. Arizona's State Board of
Nursing is preparing language to include the definition of competence and delegation. The
Arkansas Nurses Association has heard rumors that the NPA may be opened to allow
medical assistants to administer medications.
The Florida legislature may open all health provider regulatory acts to provide
language that would better protect the public from incompetent providers. All health provider
regulatory acts may be open in Indiana to change the standard disciplinary language
used by all health professions boards. The Iowa NPA may be opened to introduce
language that would allow the Board of Nursing to share NCLEX data with schools of nursing.
The New Mexic o NPA will be under sunset review and the New Mexico Nurses
Association is pushing for full prescriptive authority of mastered prepared Clinical Nurse
Specialists.
The Nurses Anesthetist Association in New York State plans to reintroduce
legislation to amend the NPA to codify CRNS practice. The Oregon Nurses
Association will introduce legislation to add the category of Clinical Nurses Specialists and Nurse
Anesthetists. The Tennessee Nurses Association will open the NPA to include language
for mandatory continuing education for relicensure, recognizing nurses in advanced practice and
delegation.
Utah has a task force reviewing the NPA and a determination will be made if the
political climate is right to pursue changes in 1997. The Wisconsin Nurses Association
may open the NPA to include language to protect the nurse's right to use the title RN. The
Wyoming Board of Nursing is introducing legislation through the nurse legislators to
require criminal background checks on all licensees.
TELEHEALTH
Increasing development and use of communication technology raises questions about how to
address the issue of a provider licensed in one state but providing services in another via
technology. Legislation on telehealth introduced in 1996 was related to physicians only.
Legislation is expected to include other providers in the future. Conneticut, Indiana,
Oklahoma and South Dakota have passed legislation that allows nonresident
physicians to provide consulations via technology across state lines on an irregular basis.
Tennessee allows for a limited license for out-of-state physicians.
Texas requires an out of state physician to be licensed by the Texas Board of
Medical Examiners. Maine has called for a study to analyze the option for a non-resident
physician to provide consultations with patients without a license as long as they do not
include primary care or primary interpretation of diagnositic tests. A California bill
provides for out-of-state physicians to provide consultations and practice medicine as long as they
are not the primary authority for a patient within the state. Kansas and
Nevada have also passed telehealth legislation.
Although only a few states have addressed the issue of telemedicine, many state licensure
boards, government agencies and professional organizations are discussing this issue. ANA has
brought together individuals from interested nursing organizations to form a working group on
telehealth. The National Council of State Boards of Nursing has developed a model for a
multi-state license. The Federation of State Medical Boards drafted model legislation last year
that
would allow special licenses for physicians who use technology to consult on medical cases in
other states. The federal government has devleloped a joint working group on telemedicine to
coordinate telemedicine activities within the Department of Health and Human Services and
across cabinet agencies.
MEDICAID
When states establish managed care programs, they must usually obtain one of two types of
waivers from the Health Care Financing Administration (HCFA). Section 1115 of the Social
Security Act allows HCFA to waive certain Medicaid statutory requirements to assist states with
specific demonstration projects.
The following is a summary of the status of states' Medicaid section 1115 waivers as of
8/15/96:
- States developing a waiver: CT, IN, ME, NJ, VA, WA
- States who have submitted a waiver: no final approval by HCFA: AL, GA, KS, MD, MO
NH, NY, TX, UT, WI
- States with federal approval of a waiver: implementation expectation - IL, KY (modify)
- States with waivers approved and being implemented: AZ, CA, DC, DE, HI, MN, OK, OR,
RI, TN, VT
- States with waivers approved - state law needed to implement: FL, MA, OH, SC
- States with Medicaid waiver disapproved by HCFA: LA, MT
Most states have not legislated direct access to APRN services for patients in managed care
organizations. Those that have, permit APRNs to serve as "gate-keepers" under Medicaid
managed care. This year Maine passed a bill requiring all group plans to include routine
pelvic and clinical breast examinations performed by participating nurse practitioner or certified
nurse midwives without prior approval of a physician. In Iowa, the legislature clarified
that managed care organizations are not required to reimburse APRNs for their services unless
their collaborating physician has entered into a contract with the organization.
Federal guidelines require state Medicaid agencies to reimburse for services provided by
APRNs. Louisiana and the District of Columbia do not reimburse APRNs
directly for Medicaid services. The District is exempt because of a Medicare waiver to
exempt RNs as primary care providers. This year Louisiana introduced legislation to
reimburse services for nurse anesthetists, nurse midwives and nurse practitioners but this
provision was deleted from the final law.
MANAGED CARE
Another trend in the state legislatures has been the enactment of legislation to require insurers to
disclose provider incentives. The Health Care Financing Administration issued rules this Spring to
require Medicare managed care plans to disclose and limit provider incentives. Many state
legislatures followed suit. The Washington State Legislature passed a bill requiring
health care insurers to disclose provider incentives including whether they require providers to
comply with specific targets or dollar amounts. The New York State Assembly passed
a bill to require HMOs to disclose certain information to consumers about a plan's benefits,
policies and procedures including limitations and exclusions and the procedures used to approve
or deny health care services.
The number of states that passed "any willing provider" laws sharply decreased in 1996. In
1994, ten state legislatures approved any willing provider laws, but only two states
(Texas and Arkansas) approved similar legislation in 1995. Meanwhile, any
willing provider legislation was defeated in 12 states in 1995 (Colorado, Florida, Georgia,
Hawaii, Louisiana, Mississippi, Nevada, Rhode Island, Tennessee, Utah, Virginia, and
West Virginia). The decrease in the enactment of any willing provider laws is attributed
to increasing grassroots pressure from the managed care community.
Generally, any willing provider laws require managed care plans to accept any provider
willing to meet the terms and conditions of participation in that plan. Most states are evolving
their managed care debate to other issues such as "direct access" and "due process." Direct access
proposals permit health plan members to utilize the services of specialists (most often OB/GYNs)
without first going through their gatekeeper. Due process proposals address issues related to
appeals filed by health plan members or providers. Seventeen states are examining direct access
legislation, and due process proposals are being considered in 41 state legislatures.
Other state legislatures are following the example of introducing legislation to establish a
process for patients and providers to appeal decisions by utilization review agenda and to prohibit
health plans from imposing so-called gag rules on providers. In the New York State Assembly, a
bill has been introduced that would prohibit managed care organizations and other health plans
from limiting a physician's right to discuss a condition or course of treatment with a patient or
from limiting a physician's right to act as the patient's advocate in seeking approval for a course
of treatment. ANA has endorsed similar Federal legislation that applies to all providers. The
Indiana Senate approved a bill that would exempt women's health specialists from the prior
approval requirements of managed care plans and would ban the use of gag orders for providers
by plans.
48 Hour Maternity
Legislation/Mastectomy Post-Surgical Care
A legislative backlash has resulted because of questionable reimbursement policies put into effect
by managed care and insurance companies. Since obstetrical deliveries are the most frequent
cause of hospitalizations today, these companies are seeking to decrease costs by discharging
mothers and babies as soon after delivery as possible. Health care providers, consumers and
legislators have many concerns about the effect arbitrary discharges, based on cost savings alone,
will have on the health and well being of women and infants. Legislation has been passed in many
states as well as on the federal level that would require a new mother to remain in the hospital 48
hours after delivery.
Laws enacted in Alaska, Florida, Georgia, Iowa, Maine, Maryland and
Washington define certified nurse midwives as "attending providers." Many of the
48-hour laws require insurers who shorten length of stay to provide coverage of home visits by a
registered nurse with appropriate qualifications.
The trend for decreased hospitals stays has also extended to mastectomy patients with some
managed care companies reimbursing for the procedure on an outpatient basis. Legislation was
passed in Illinois and introduced in Indiana that would require insurers to
cover a minimum of 48 hours of post-surgery hospital care for mastectomy patients.
WORKFORCE AND QUALITY
Workforce and quality issues in state legislatures are taking several approaches. In some states,
model legislation dealing with nurse staffing levels and linking it with quality is being discussed
through the public hearing process. In other states, SNAs have been successful in getting state
legislatures to commission studies on quality and patient safety in health care institutions. Other
states are focusing on data collection as a means to provide information to the health care
consumer.
Five bills dealing with the level of nursing staff in hospitals were introduced at the request of
the Massachusetts Nurses Association and heard by the Massachusetts Legislature's
Joint Committee on Health Care. One bill, would set staffing standards for hospitals by specifying
how many nurses are required in hospitals, based on the number of patients and the severity of
their illness. Another bill would expand the Patients' Bill of Rights by giving patients the right to
know hospital staffing levels.
A third bill would require that a medical staff person be identified by their profession or
status -- registered nurse, licensed practical nurse, etc. -- on a label pin. A fourth bill calls for
mandatory data collection so that staffing levels can be tied to quality of care. Other states have
focused on the worker identification legislation with both Washington and Iowa having bills
introduced in their state legislatures requiring health care facility workers to wear proper
identification.
At the request of the Kentucky Nurses Association, legislation was introduced in
the Kentucky Assembly that calls for the interim Joint Committee on Health and Welfare to
conduct a study on health care safety and quality issues at health care facilities and their impact on
patients and personnel. The Committee will seek input from health care providers and
professionals including representatives from the Kentucky Nurses Association.
In Alabama, legislation was introduced calling for a Medicaid Agency Consumer
Hotline that would give civil immunity to employees, nurses and others who provide information
regarding patient care.
Whistle blower language was introduced in Washington State, New Jersey and
New York that would provide protection against employer retaliation if a health care
professional reports health and safety concerns.
Data Collection
The Florida Nurses Association was successful in pressing for legislation that requires a
taskforce to study the effects of the number of licensed nurses and the skill mix of licensed,
technical and nonlicensed nursing staff on services including, but not limited to length of stay,
patient accidents medication errors and delays in surgical procedures. The taskforce report is due
to the governor by December 31, 1997.
The Pennsylvania Nurses Association worked successfully with the House Health
and Human Services Committee to recommend legislative language that would require the
collection of Nursing Quality Indicators by the state's data collection agency.
Several states have enacted legislation to establish new statewide data collection and
dissemination programs. A new Connecticut law establishes an Office of Health Care
Access whose purpose is to coordinate data collection and analysis among institutions. In
Maryland, Gov. Glendening (D) signed legislation which lays the groundwork for
evolving long term data collection.
A Utah law establishes a two-year quality improvement demonstration project
which incorporates collection and analysis of patient level encounter data. In Alabama,
Delaware, Georgia, Hawaii, Illinois, Minnesota, Nebraska, Utah and
Virginia, legislation was introduced pertaining to mandatory data collection from
hospitals and physicians, cost containment and data collection systems.
Retraining
The Mississippi Nurses Association in collaboration with the Nursing Organization
Liaison Committee received funding from the Robert Wood Johnson Foundation through the
"Colleagues in Caring: Regional Collaborative for Nursing Work Force Development" project.
Their grant calls for planning and implementation of a program for infrastructure for
contemporary workforce development through creative educational initiatives. In addition nursing
was successful in enacting the Nursing Workforce Redevelopment Act to carry on the work of the
grant and to administer further grants for the creative educational initiatives to assist registered
nurses in moving from acute care facilities to community care.
The New York State Nurses Association successfully secured $50 million in nurse
retraining grants for displaced health care workers.
BALLOT INITIATIVES
Ballot initiatives in California received much attention although they did not pass.
Proposition 216 (backed by the California Nurses Association and Ralph Nader) and Proposition
214 (backed by SEIU) were patient protection initiatives. Both would have ended "gag" rules,
require public disclosure of financial data, quality evaluations and consumer complaints, and
establish staffing standards for hospitals. Proposition 216 would also authorize taxes on some
mergers and executive salaries, establish penalties if a health system closes a hospital and set up an
independent consumer association to monitor profit motives.
Oregon's ballot initiative, Proposition 35, would have restricted the base on which
health care providers would receive payment. This initiative was watched closely in light of
capitation replacing traditional fee-for-service payments.
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