June 1999 Bulletin

'Scope' bills pile up

'This is a real patient-safety concern.'

Providers try to expand practices with strong lobbying in states

By Carolyn Rogers

State legislatures are bustling with scope of practice bills these days, due to the persistence, determination and organizational skills of many health care provider groups. Pharmacists, optometrists, podiatrists, chiropractors, psychologists and physical therapists, to name a few, are regularly making their case to state legislators.

Their goal: to carve out a wider scope of practice for themselves, often attempting to leave physicians out of the treatment plans altogether. Their formula for success: strong lobbying efforts combined with a politically active membership willing to sacrifice time and money to make things happen.

The groups present themselves to legislators, managed care organizations, and the public as low-cost, viable alternatives to physician care. This concerns many physicians who fear that, in the rush to lower health care costs, patients' safety may sometimes be put at risk.

Here is a sampling of the states that have seen scope of practice legislation introduced in 1999:

Athletic trainers: Florida, Georgia, Massachusetts, Missouri, Nebraska, New Jersey, Nevada, Rhode Island, Virginia, Washington, Wisconsin and Wyoming.

Chiropractors: Arkansas, Colorado, Connecticut, Florida, Hawaii, Idaho, Indiana, Iowa, Massachusetts, Maryland, Minnesota, Mississippi, Montana, New Hampshire, New Jersey, New York, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington and West Virginia.

Physical therapists: Connecticut, Georgia, Hawaii, Indiana, Kansas, Massachusetts, Minnesota, New York, Pennsylvania, Tennessee, Texas, Virginia, Washington and West Virginia.

Podiatrists: Arkansas, California, Connecticut, Idaho, Indiana, Iowa, Maine, Massachusetts, Missouri, Mississippi, Nebraska, New Jersey, New York, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Virginia, Vermont and Washington.

Since the beginning of the year, eight states-Connecticut, Georgia, Indiana, Missouri, New York, Pennsylvania, Texas and Virginia-have introduced legislation that would in some way permit patients direct access to physical therapists.

The Missouri State Orthopaedic Association (MSOA) argued against physical therapists' push for direct access in that state in 1998 as well as 1999. Jay Harms, MSOA executive director, says, "Last year, the physical therapists came in wanting to see patients without a doctor's referral. They wanted unlimited access to all patients and their own licensing board. One of the issues we raised in response is level of education. Physical therapists have a master's degree-they are not educated to diagnose symptoms. This is a real patient-safety concern."

During his testimony before the General Assembly in 1998, Douglas Kiburz, MD, an orthopaedic surgeon and current president of MSOA, pointed out 27 different diagnoses that could be made when a patient presents with a complaint of shoulder pain. Four of those diagnoses are carcinomas. "Shoulder pain is a realistic complaint presented in daily practice," Harms says. "Without training in making a diagnosis, the patient will not receive proper care.

That bill eventually died, but the physical therapists came back in 1999.

"This year," Harms says, "they wanted to perform screening and educational procedures, evaluate athletic injuries, provide consultative services and develop fitness and wellness programs for asymptomatic patients without a referral. We don't object to them providing education and screenings for asymptomatic patients-therapists are better trained than some people currently providing these services. They also wanted to treat self-limited, recurring injuries without the prescription or direction of a physician. That's what they wanted, but what they asked for was independent practice."

After numerous revisions, it now looks as if the General Assembly is willing to give physical therapists the educational and screening procedures and fitness and wellness programs, Harms says. It also looks as if they will be able to treat recurring or self-limited injuries, but only if a physician diagnosed the injury within one year and physical therapy was prescribed as part of the original treatment plan.

"Patient safety is our primary concern," Harms says, "and they have met many of our objections in the version of the bill that appears to be headed for passage. It appears they'll get a lot of what they asked for. Our concern now is that they'll get limited direct access this year and then come back next year looking for independent practice."

Another hot issue in 1999 state legislatures concerns the practice of podiatry; 21 states have introduced legislation this year that would expand podiatrists' scope of practice.

In South Carolina, for example, House Bill 3240 sought to give podiatrists the right to amputate toes.

Jan Kellar, director of health policy and affairs for the South Carolina Medical Association, says "We had two orthopaedic surgeons testify at three different times against the bill. They testified, in essence, that you can teach anybody to cut off the toes, but podiatrists are not trained to treat the disease itself-diabetes. A lot of diabetics eventually have to have their toes amputated, but cutting off a limb should always be a last resort. If podiatrists were allowed to do it, the surgeons argued, it would happen more often. And where does it stop, will they want to remove the foot next? Fortunately, we were able to defeat the bill, but we know they'll be back next year."

Anything below the knee would be fair game for podiatrists in Vermont, if House Bill 187 became law.

Madeline Mongan, director of government relations for the Vermont State Medical Society (VSMS), says "the bill has been ordered to 'lie,' so it's pretty much dead. We had previously reached a compromise with the podiatrists whereby they would expand their scope of practice to the middle of the lower leg, but in order to do surgery on ankles and above, they would have to be board-certified or credentialed by the hospital. They rejected that compromise at the last minute. The committee became frustrated and ordered the bill to lie on the calendar. The bill will probably die, but they'll be back next year."

The VSMS routinely assembles teams to address scope of practice issues. The issue team that responded to the podiatry legislation was doubled in size with the addition of several orthopaedic surgeons. The team held conference calls and met in person with the podiatrists to try to work out a compromise.

Unfortunately, she says, orthopaedic surgeons tend not to be politically active. "At one meeting, eight podiatrists showed up and three of our issue team members-including two orthopaedic surgeons-cancelled. The meeting was a little lopsided," she says.

Mongan says orthopaedic surgeons as a group aren't as politically active as some other physician specialties in the state, such as ophthalmologists, who have their own lobbyist and are very active in responding to optometry legislation.

"When we need to fight a bill, we send orthopaedic surgeons all of their legislators' names, address and phone information and the best time to call, but we don't get much of a response," she says.

After 67 years of being limited to the foot, Arkansas podiatrists just recently won the right to work on the ankle.

"They've been trying to get to the ankle in Arkansas for years," says Lynn Zeno, director of governmental affairs for the Arkansas Medical Society. "One way they've tried to accomplish that is through obtaining hospital staff privileges, but with the exception of some rural hospitals, they've been blocked from getting them (hospital privileges). The other way is through legislation."

Although the Arkansas Medical Society officially opposed the bill, it still managed to sail through.

Ruth Thomas, MD, and Karen Seale, MD, both orthopaedic surgeons in Little Rock, Ark., testified in opposition to the legislation.

"It was a very unpleasant experience," Dr. Thomas says. "This bill was on a fast track, so we had very little time to prepare. I was ill-prepared for the mechanics of the Senate hearing, which put me at a disadvantage. After I gave my testimony, I had no opportunity to respond to statements that I disagreed with. I felt I had made some solid arguments, but I got the distinct impression that this was decided before I even walked in the door."

Zeno attributes passage of the legislation to a combination of bad timing and a lack of interest from the medical community at large. He says there was not a lot of opposition from the orthopaedic community.

Dr. Thomas also places partial blame for the defeat on the poor response by the Arkansas orthopaedic community in terms of contacting their legislators.

The new law extends Arkansas podiatrists' scope of practice to include "diagnosis and medical, mechanical, and surgical treatment of ailments of the human foot and ankle." They are excluded from amputating the foot, administering any anesthetic other than local, and they may not perform any nerve or vascular grafting.

J. Adam Speer, executive director of the American Association of Orthopaedic Foot and Ankle Surgeons, agrees with Dr. Thomas that orthopaedic surgeons need to become more active in educating their legislators and making the case for patient safety.

Orthopaedic surgeons also need to be more active in state medical societies, Speer adds, to make sure that orthopaedic issues are high on their list of priorities.

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