Nurse practitioner bill, SB 491 (Hernandez), is down but not out

In part because of its own hypocrisy, the nurse practitioner bill has for the present taken an inglorious swan dive. Nonetheless, we believe it'll come to the surface again. But first, let's get to the juicy hypocrisy.

 

Political readers on healthcare will no doubt recall the nurses' efforts this summer to stop schools from allowing teachers and parents to administer insulin injections to diabetic students. The argument the nurses used was that teachers and parents weren't educated and trained to recognize when insulin injections should be given, what harm might occur were such injections not timely given or withheld, and what adverse side-effects might be expected, let alone treated.  It was a "safety" issue, nothing to do with job preservation.

Physicians identified with these arguments because these arguments were the same that the physicians' lobbies were using to fend off passage of SB 491 (Hernandez).  That the nurse practitioner lobby let itself use these arguments on one hand while arguing against them on the other hand turned out to be the very essence of poor political timing. We doubt they'll repeat the mistake when the bill resurfaces which, in due course, we think it will. So the word we issue to the CMA and its allies is CAVE CANEM (beware of the dog, the sign that was found in the Roman rubble of an ancient eruption of Mt. Vesuvius).

 

In essence, relying on the idea that Obamacare will cause a shortage of physicians, emboldened by Senator Hernandez' willingness to take on the traditional physicians' organizations, the nurse practitioners (NPs) sought the right to practice at levels beyond their education and training and to do so without physician supervision. One argument the NPs used was the shortage of sophisticated medical care in rural  areas. What they didn't say was that the NPs would actually populate these areas and stay there. They  didn't promise to accept lower pay, either. In fact, why  should they?  If the NPs are licensed to practice medicine as physicians, shouldn't they then be entitled to equivalent remuneration? That, we say, would be the logical next step for the nursing lobby. But first it was necessary to get SB 491 passed and signed into law. That is why it's inevitable that the NPs will try again sooner or later.

 

The California Medical Association (CMA) successfully argued that quality and safety in medical care was dependent upon proper education and training. Physicians well know that it's hard enough  to make diagnoses and render treatment even with 12 to 15 years of college, medical school, and advanced internship and residency training.

 

The Union of American Physicians and Dentists (UAPD) weighed in heavily on the side of the CMA. The UAPD  and the CMA acknowledged the importance of nurse practitioners but stopped short of allowing their level of education and training to be legislated as equivalent to physicians' level of education and training. Both organizations argued that the right way to fix anticipated physician shortage problems would be to expand post-graduate residency training positions for newly minted physicians and to expand the number of medical schools. The key  is to provide "properly trained individuals," not simply to invoke a "quick fix" by giving higher priority to the number of licensed professionals as opposed to the quality of the education and training of those professionals.   

 

Other organizations that helped to  oppose SB 491 included the California Neurology Society (CNS), California Academy of Family Physicians, Diabetes Coalition of California, California Society of Anesthesiologists, Blind Children's Center, California Academy of Eye Physicians and Surgeons, American Society of Ophthalmic Plastic and Reconstructive Surgery, Latino Physicians of California, Chinese Medical Dental Association, Let's Face it Together, Minority Health Institute, Dream Machine Foundation, Canvasback Missions, Lighthouse Mission, Time for Change Foundation, Here 4 Them, Osteopathic Physicians and Surgeons, etc (if we've left out your organization, just let us know).

 

References

 

See our blog of 6 August 2013 and references

 

The Daily Journal, San Mateo County, "A Slipper (sic) Slope Indeed," Robert L. Weinmann, MD, 8/13/13

Sacramento Bee, "Expanding role of nurses a recipe for malpractice lawsuits," Robert L. Weinmann, MD, 4/24/13 

 

 

"Equal Work with Unequal Pay" Revisited

In a recent communique sent privately, I was asked about the meaning of  "equal work with unequal pay" from an earlier blog about pending legislation in California re SB 491, 492, and 493 where nurse practitioners, optometrists, and pharmacists would be equated with physicians. The writer asks "in what sense is the work of a nurse practitioner ever quite the same as the work of a board-certified neurologist?" The writer said "I personally would not be willing to pay a nurse practitioner as much as I would cheerfully pay my neurologist. How about you?"

I agree with the challenger that nurse practitioner education and training is not comparable to the training of a physician, much less  to a physician who  has also done additional specialty training. I agree with the writer.  I would not expect to pay the same for the lesser trained practitioner.

But since that wasn't the point of my editorial I'll take another whack at it. My point is that if SB 491 et al pass in California, the decision as to who gets paid and at what rate will pass into new and untested hands. Unless the nurses' union is asleep at the switch, once SB 491 passes, it can be expected that the nurses' union will lobby to make sure that the newly minted nurse-physicians get paid the same as graduate physicians. The argument will be a legal one, namely, that the legislature, having designated nurses as equivlalent to physicians, is now obligated to see that they get equivalent pay.

In this case I asked my challenger to explain why a certain physicians and surgeons organization wasn't lobbying against SB 491. I was told that the group was "focused on other things." My response is that if the Hernandez series,  SB 491, 492, and 493 get signed into law it won't be long before there are no "other things" on which to focus.

Physicians' groups should oppose SB 491 et al in the interest of making sure that optimal medical care remains the goal, not watered down versions thereof.  So far we know that the California Medical Association, the Union of American Physicians and Dentists, and the California Neurology Society have taken up the campaign and so have many individual physicians.

MEDI-CAL PROVIDER CUTS: SB 640 AND AB 900

When does austerity mean tossing sick people under the bus?

Answer: anytime there's a government shortfall.

SB 640 (Lara) and AB 900 (Alejo) are designed to prevent the 10% Medi-Cal provider cuts that are now in the legislative hopper.  California is short of money. Apple's Tim Cook is now under the gun for sequestering money abroad in order to avoid taxes in the USA.  Last we looked, Cook was not only from America, but also from California. Not to worry. There's another way to get some money into California: cut down on the money spent on the sick and poor, especially citizens who are sick and poor at the same time.  That definition is fulfilled by Medicaid patients. In California, that program is called Medi-Cal.  

Medi-Cal has always had a sordid reputation in California. In 1981 Medi-Cal had to be coerced to  get back nearly a million dollars it carelessly overpaid to a single recipient for double-billing  (that was when a million dollars was still thought of as money).  The ante has  gone up since then but the program remains a conduit for channeling less and less money to  Medi-Cal patients. The impetus is to reduce Medi-Cal provider payments by 10% even though it's understood that such a move will drive providers out of the system.  Fewer providers plays into the hands of those who want more than the 10% cut. If enough providers opt out the cut in provider fees will considerably excced 10%.  Doctors will get blamed for not participating in a widespread system of moral bankruptcy and financial irresponsibility.

SB 640 and AB 900 will reverse the 10% cut providers and their patients suffer as a result of the 2011-2012  state budget. The California Medical Association has challenged the cuts in court and gets credit for sponsoring these bills.  We recommend support for SB 640 and AB 900.

SB 491 (Hernandez) CLEARS COMMITTEE

NURSES WIN KEY COMMITTEE VOTE

First, the facts

In a stunning victory for Nurse Practitioners SB 491 (Hernandez) cleared the Senate Appropriations Committee by a 4 to zero vote (DeLeon, Hill, Lara, and Steinberg). There were
no votes against the bill (Walters, Gaines, and Padilla were not recorded to have voted). No matter, the measure needed only the 4 votes it got.  

The California Medical Association, opposed to the bill, said in its Hot List that "this bill gives nurse practitioners independent practice" because "nurse practitioners will no longer need to  work pursuant to standardized protocols and procedures or any supervising physician and  would basically give them a plenary license to practice medicine."

One of the arguments by Senator Hernandez that proved particularly attractive to proponents was his assertion that allowing Nurse Practitioners to practice medicine "can reduce the cost of medical care by allowing lower-cost workers to  do more routine tasks in place of higher-paid MDs." In this blog, we have already asserted why this fanciful concept may well prove to be illusory. The nurses are well organized and have a strong union. In the opinion of this author the nurses' unions would be asleep at the switch were they to stand idly by while their colleagues got paid less than physicians for doing the same work.

Milton Lorig, MD, Union of American Physicians and Dentists, wrote in the Sacramento Bee that "physicians like myself have undergone far more rigorous training" and that he doubted that a mid-level practitioner "would have made the diagnosis of NMDA-Receptor Autoimmune Encephalitis" that he recently treated. Lorig argued that "patients deserve ready access to providers who are adequately trained." He did not, however, persuade DeLeon, Hill, Lara, or Steinberg -- just one would have been sufficient to save the day for optimal care.

Author's amendments may still be introduced, for instance, a provision to delete the authority for nurse practitioners to make diagnoses of patients and to perform procedures. Allowing expanded use of skilled nurses should not be done by lowering practice standards that physicians, nurses, and scientists have worked centuries to develop.
 

AB 655 (Hayashi's Hypocrisy) : The Sequel

LAWMAKER MARY HAYASHI CHARGED WITH SHOPLIFTING is the title of an article posted on SF GATE from the San Francisco Chronicle, 10/29/2011.

SHOPLIFTING POLITICIANS is the title of the post on JUDICIAL COUNCIL WATCHER.

Here's the facts as they've been reported so far: Hayashi was shopping at Neiman Marcus and left the store with items priced at $2,450. She checked out at the register without paying for these items, got stopped by security, was taken to the Tenderloin Police Station, and was booked on one count of felony theft. She is eligible for three years in prison if convicted although as a new arrival to the felony theft scene a full three-year sentence is not expected. Her mouthpiece said she was "distraught" at the misunderstanding whereby she inadvertently by-passed the cash register and walked out of the store with the goods.

We are willing to post this story as reported but we'll wait for her defense and court judgement before drawing final conclusions. In the meantime, we'll explain why we've learned not to trust her anyway.

During the hearings on AB 655 she repeatedly told everyone and anyone who would listen that there was no opposition to the bill even though by this time it was known that there were dozens of private objections to the bill that had been sent not only to her office but also to the relevant legislative committees. All were ignored by Hayashi and her staff. Instead of thoughtful reply, we were told there was "no opposition." Technically, there's some truth to this assertion because there were no negative votes in the legislature. So it was not a complete lie that there was no opposition. There was, however, enough disception to dishonor her office and to sully the reputation of another assemblyperson who contributed to the deception in a sham speech and charade on the Assembly floor (which we have on video for appropriate release, like at election time).

It's not as though this instance were the first and only example of sub-standard conduct reported to have been committed by Hayashi. Two years ago it was reported that she used $202,212 from her own campaign money to assist her attorney spouse to win election to the Alameda county bench.

But there's plenty of soiled linen to pass around. Here's the latest from our reporter in Anaheim where the California Medical Association met last week. Jim Hinsdale, MD, out-going president of the CMA, proudly told the CMA attendees that AB 655 was one of CMA's more important legislative successes this year (CMA was actually the sponsor of this bill). Jodi Hicks, now in charge of lobbying for the CMA, dismissed assertions that the bill allows sham peer review.

The legislation was reportedly intended to enable transfer of peer review information about doctors among hospitals in order to prevent doctors who were shown to be incompetent from moving from hospital to hospital without full disclosure.

The legislation as written, unfortunately, enables hospital administrations to transfer material that is false and defamatory even if it is known that the information is false and defamatory. It enables and protects false witness. In essence it allows the equivalent of peer review blackmail.

When strenuous efforts were made in good faith to amend the bill resistance came from the CMA CEO, Dustin Corcoran, who spoke with the undersigned and allowed a snippet of amended language, just not enough to allow expungement of false and defamatory language. Some believe that the real force behind the bill was the California Hospital Association and that the basic ideology is to enable control of doctors by hospital administrations and foundations.

R.V. Rao, MD, Chief of Surgery at his hospital, says that "it is time to file ethics charges against this legislator to the California legislative assembly for blatantly misleading the California legislative assembly." We think that's a good idea.

The next step is for hospital committees that do peer review and credentials to meet and confer and decide what they need to do before the first lawsuits are filed in which the individual doctors serving on these committees are sued for defamation. The law may protect peer review and lawful conduct. It does not protect illegal activity.

The hornets are beginning to swarm. Committees at two hospitals known to this writer have already held meetings in which the topic was how to protect themselves as committee members from the consequences of this incompetent legislation.