Back
to Summit ProceedingsNational Summit on State Regulation of Health Professionals in the 21st Century
Pam Brinegar: Hello again and welcome to our second session. We have four speakers who we will take in the order listed in your program. That means first up is Bruce Douglas. Bruce is Director of the Division of Registration of the Department of Regulatory Agencies for the State of Colorado. The Division of Registrations is comprised of 25 professional and occupational licensing boards and committees that regulate more than 30 professions including all the health care professions regulated in the State of Colorado. The division regulates over 221,000 individuals. Bruce graduated from Gettysburg College in Gettysburg Pennsylvania and from Georgetown University Law Center in Washington DC. He is a licensed attorney and prior to assuming his current position, he practiced law in the Colorado Attorney General's office. In that capacity he represented several of the agencies that are currently in his division. Bruce has broad experience in the field of professional regulation. At the national level, he is actively involved in CLEAR and he served as president from 1989-1990.
Bruce Douglas: Thank you Pam very much. I am going to talk this morning a little bit about restructuring boards from a "down in the trenches" point of view. It will not be highly theoretical; it is going to be what we really try to do and how it works getting there and why we try to make some changes in our licensing programs. I will begin by talking about the history in Colorado of trying to regulate the mental health professions which has definitely been a challenge. Going back before 1988, (and I will not spend a lot of time in the past because I need a starting point on what the problem was) we had licensing boards for only two groups, for psychologists and for social workers. Those boards came up for sunset review and it was not a very pretty picture. The psychology board, for example, which was created in 1961, and between 1961 and 1988 only entered five disciplinary actions, and revoked one license. So, we had a very restrictive structure with only two groups being licensed and the other mental health care providers being totally shut out. At the same time, we had two boards that were not doing a very good job in terms of protecting the public. So, that review resulted in a fairly major, some would say radical change, in how we do business in Colorado.
This is a model that has lasted us many years. We created two new boards for two recognized groups, marriage and family therapists and professional counselors. We also created the mental health grievance board that did two major functions. The grievance board became a board where unlicensed psychotherapists could register their credentials and file statements with the database and could practice legally in Colorado. Anyone could practice psychotherapy in Colorado as long as they filed their credentials with the State Grievance Board.
For the licensed group, the Grievance Board (which is a multidisciplinary board) was continued in Colorado and the research indicated that the board, in a very short time, had done a complete turn around and was actually disciplining practitioners vigorously. It was actually enforcing laws - you were not allowed to have sex with your clients and so forth. The Grievance Board was working very well but again the politics were very tricky at this point.
In 1997, one year before the Grievance Board was scheduled for its next regular sunset review, two things happened - both the psychologists and social workers, (hiring really big lobbyists, going all out having special fund raising events and actually in the case of psychology having the money pumped in from the national level) ran bills to try to escape this whole Grievance Board model to go back to traditional independence boards for the two groups.
It took everything in the world that I had and other resources our department had to kill those bills. It was very difficult. We were able to do it but one of our strongest arguments was really drawn around the sunset process: they should be waiting one more year, that this is not the right time. It was not based on any research, but was just a political power play. Frankly, the way it really worked was when the bill was voted upon, in the House Health Committee, the committee chairman, who is a friend of mine - you understand how this works even though the bill had no fiscal impact - the only motion that she would accept was a motion to send the bill to the Appropriations Committee and we knew how to take care of it in Appropriations. Again, we were able to kill both of those bills and we bought ourselves a year, but now it is 1998 and we really are in sunset review and we are trying to figure out what to do.
Another thing that is going on as part of the sunset review is that all of the mental health professionals, for the first time ever in Colorado history, maybe in US history, were meeting as a group. They had formed a coalition all the way from Ph.D. psychologists to primeval scream therapies and whatever. The whole range of licensed and unlicensed mental health providers were meeting in a coalition to try to really hammer out how they were going to deal with sunset articles, how they were going to deal with the Department of Regulatory Agencies, because they anticipated that we would be resistant to any kind of a change to the structure we already had in Colorado.
It was really interesting because certain groups had their own particular things that they really cared the most about. The marriage and family therapists and the professional counselors really wanted to gain 72-hour emergency treatment hold privileges for example. The unlicensed psychotherapists really wanted to have the privilege for communications with their clients like other groups had. They currently did not have a legal privilege for those communications. What it came down to is basically psychology and social work giving everybody what they wanted, whatever you want you will have, part of our coalition approach if you support letting us have our own separate boards. That was the big drive, they wanted their own separate boards. They were willing to give up things that in any other setting they were never going to give up.
Politically, our department is what I would call, in big trouble. Even some of our best allies from the year before tell us that you need to compromise, you do not have the arguments that are going around sunset. These are voters, these are constituencies, these are influential people, they do not like the system, but we know it works really well. You have the data, but that is all. You have the data, but you do not have the votes. So, we were trying to deal with the political realities of whether we just rollover, or do we go back to a system that we felt had not worked in the past, of individual licensing boards - the traditional model. Do we fall on our sword, do we try to count on a veto from the Governor and I did not have that commitment, but who knows? Or, do we start thinking compromise, like our friends in a lot of states were telling us?
The dilemma, I think, and this came up in the first committee, is what is driving this? Why does the profession feel so strongly that they want their own boards? And the words that I finally came up with, and I do not think it went over well, was that it was like tribalism. There is just a need to identify with the tribe, the sense is now that the current structure dilutes that professional pride, that professional identity and it was a very emotional thing. I tried to seek out just rank and file psychologists and social workers, neighbors, people I knew that were not involved in the organized political effort. And I got the same kind of feedback: this infringes on our identity, the system we have here. I do not feel like a psychologist, I feel like I am being lumped with all the mental health providers, or social workers or whatever.
So, we tried to come up with a system that would retain the reforms, but would accommodate the need for tribalism, the need for different groups that we at this point had been fighting with for virtually ten years. So, we came up with a House Bill that was a compromise. First of all, we had what are called 23 prohibited acts, which were uniformly enforced, and violations of these acts would cause you to either lose your license or in the case of the unlicensed people, lose your listing in the database. Basic themes of the acts were conviction of a felony, false or misleading advertising, failing to comply with the mandatory disclosure requirements that we had already talked about, sexual contact, undo influence on the clients and failure to terminate a relationship with a client when it is reasonably clear that the client was not benefiting from the relationship and not likely to gain such benefit in the future. These were the teeth of our law. These were working. W e were able to agree with the coalition that they would keep all these 23 acts intact, uniform across all groups. They would not change one word for any group. That was kind of a bottom line demand that we had. Some of these acts are a little unusual. We probably would have let that one go - ordering unnecessary X-rays. I do not think a lot of mental health care providers do that anyway, but that was added by the legislature to all health care professions when they did that bill. They tacked it on to the mental health care professions but even that one stays uniform.
The other important thing is that we kept our open competition model. The licensed groups, under the compromise, would only have title protection. They would not be able to use their licenses to attack each other, or to attack the unlicensed psychotherapists. Both of these provisions are extremely important. Nothing in one part of the law could restrict another person acting within the scope of their license. So, you have an open competition model and you have a truce between the professions in terms of turf war and yet you give the professions back what they wanted more than anything else, more than life itself, which was their own boards.
The other part of the compromise, was the makeup of these new boards. We are talking about five boards now, four for the license groups and the grievance board would become the disciplinary board only for the unlicensed psychotherapists. But the makeup was identical, four to three public member majorities for all five boards which in Colorado is a radical departure from anything we have ever done before. So, unlicensed psychotherapists can continue to practice; they are under their own board again with the four to three public member majority. We also insisted on some other things administratively, we treat all these five boards for fee-setting purposes uniformly. So, you would have a uniform license renewal fee, you would not have the extremes of high fees and low fees that we did under the old system. We also have a shared staff called the management staff, a shared legal staff, a shared investigative staff for all five boards who try to again keep as much consist ency as we can within the mental health regulatory scheme of things.
For the first time, the Department of Regulatory Agencies in Colorado is at peace with the mental health care professionals. Ten years of fighting in the legislature took its toll on both sides but we are at peace. We have excellent working relationships with those professionals and yet, I do not think we gave away the store. I think we have kept the best features of our reform, but we gave them the one big thing they wanted. I think the lesson that I have learned about all this is when we talk about combined boards and super boards and whatever, it is a big emotional hot button with professionals. I am not sure it is worth the pain of going there. I am not so sure there is really anything really wrong with this professional identity thing, I think if you really believe in competition you have got to let groups establish their identity so they can compete, so people know that psychologists think they are that much better, let them run a TV commercial, let them do wh atever else they can to up their market share. Let the professionals know that there is nothing wrong with that.
I think that you can get what you want even if you have to compromise and in this case, we compromised significantly, giving up the structural change but keeping the sub delivery forms. I will resist any attempts, piecemeal to try to change it if one group starts breaking their agreement to stay in kind of a coalition mode, that will be another fight and I am certainly ready to take that one on as is our department.
Now, I would like to talk about another structural change that is a major change that just happened in Colorado this year and was based on a whole different fact pattern, a whole different problem we are trying to deal with. And that is a major bill to totally restructure Colorado's State Board of Nursing. The problem was just the opposite of what we had with the mental health care providers. The nursing board, it was not that they were not disciplining nurses, they were just disciplining so many nurses in record numbers it was really in danger of sinking in its own case load.
The eleven-member board was dealing with 734 new complaints last year. That is a 63 percent increase from 1991. The other thing that was happening was that the nursing board was developing a very serious backlog of cases in the Attorney General's Office. Some of the cases were two years old, some of them were three years old. The situation was not fair to the public, certainly unfair to the nurses. So, we had 265 nursing board cases in the Attorney General's office at the end of the year. That is 139 percent increase from 1991.
The other thing that was happening, frankly because of the caseload situation, was the board became a board of complaint processing against nurses. It was taking all of the nursing board's time to deal with this case load and it could never deal with any other really big picture issue facing the profession of which there are many very important issues. So, we wanted to come up with a change that would let the board deal with the case load more efficiently and at the same time deal with other issues that we think the board was created to deal with.
What does this new structure look like? The old structure is the traditional board of nursing that you would see anywhere around the country. The whole board, all 11 members, sees everything that comes in. They are dealing with every incoming complaint. They have to read every report of investigation. The cases go to a hearing and there would be an administrative law judge who would actually hear the case, and the initial decision would come back to the board of nursing and the board would have to make the final adjudication on the panel. The board was kind of a closed loop system that again worked well when our complaint load was down, and when the board workload had been a lot less.
The theory behind the new model is that by dividing the board in half you double the ability of the board to do its job. If you are appointed to the board of nursing in Colorado think of yourself as either an A or a B. You will be doing two different functions as the inquiry panel to the board divides the incoming case load in half and deals with the incoming complaints. One of the beauties of the system I think is that the inquiry panel's role is very clear. You are actively involved in the investigation. You can actively work with the prosecutors and the investigators and do not have to worry about whether this case might come back to you for final adjudication.
If on the other hand, a case does go to hearing we have added a whole layer of due process for the nurse. When the administrative law judge issues a ruling, it does not go back to that inquiry panel, it goes to the corresponding hearings panel. These people are like a jury. They do not know anything about this case. They have never seen the investigative report and they were not part of the original decision to send that case for investigation at all. Besides really doubling the abilities of the board to do its work, I think that due process piece is really important.
The US Supreme Court has approved the old way of doing it, upholding the way a licensing board is really structured in this country, but it was a divided course and I think, whether the old way is legal or not, I think that this way is fairer to the nurse and will work much better. There are some other subtle things going on here. By the panels meeting monthly with smaller case loads, it will be quicker for settlement offers to go back and forth between the nurse and the nurse's attorney, the inquiry panel, and the inquiry panel's attorney. This will mean the settlements do not seem to drag out forever, and so the board can actually remember what the case is about when a counter offer comes back to the board.
At the same time the board will meet as a whole, the full board will meet quarterly at least and maybe more than that, where there will not be anything on the board's plate at all but big picture issues. They can actually deal with their job as regulators for the profession of nursing and for the regulation of nurse aides, which is also under our nursing board in Colorado, and not be brought down with individual cases.
I should mention that the law gives the board authority to designate to either one of the inquiry panels the authority to do licensing. So the licensing cases that would have had to go before the board can now be farmed out to the inquiry panel. You will not have delays built into the difficult close call licensing cases to wait for the full board meeting. So, we are really excited about this. It goes into effect it goes into effect July 1.
We are in the process now of dividing the current case load in half; color coding all the files, getting everything ready to go. The President of the Board of Nursing, her job will be to divide the boards into panels. The panels are supposed to be evenly balanced so if you had two public members, there would be one on each panel and so forth. We are hoping again that this reform will help the nursing board and the profession of nursing in Colorado.
I would like to mention briefly another regulatory structure that has evolved in our state. I do not It is what I would call direct regulation by division without a board. There has been a trend towards that. It started out with the physical therapy board nearly 15 years ago, when it was reviewed by the legislature and the legislature was very unhappy with the because it was not disciplining physical therapists.
At the same time, Colorado faced a very severe shortage of physical therapists. The board was extremely rigid on entry to practice in the state. People from other states were turned down routinely trying to move their licenses into Colorado because of things like there had never been a uniform passing rate on the exam. So, they were being turned down because their state had adopted a lower passing rate than our state. Even if the individual physical therapist had a higher passing score, those kind of things. Also, we virtually had slammed the door shut to foreign graduates.
We discipline very aggressively and we have had very major cases involving millions of dollars insurance billing fraud, sexual conduct, substandard practice. At the same time, we are very liberal. We are virtually an open state in terms of mobility into the state from other states in this country and we are very liberal on foreign graduates. Our law basically says that whatever is considered to be a physical therapist in the country where that person is coming from, we will accept it. If Hungary says that is what a physical therapist is, that is what we will take. That is generated some controversy at the national level, but those people still have to pass the national exam. Foreign graduates still have to pass that national exam which I think is a big safeguard. I think we have gone full circle and we will see what the legislature thinks of it when they review our performance next.
I was never having the board meet because there was not really anything for them to do, except let us say to change the laws so they have to meet twice a year, whether they need to or not. We structure an agenda that starts at about ten o'clock in the morning and sometimes we make it to lunch and sometimes we do not. But they do meet twice a year. This formula for hunting and fishing outfitters, we have adopted a same kind of advisory committee model. For other professions, it is just direct regulation without even advising. Acupuncturists, direct entry midwives, alcohol and drug abuse counselors. This year we almost passed a bill to regulate naturopaths or naturopath physicians. It passed the House where the Speaker of the House sponsored it, but it died on a tied vote in Senate Committee. Again, with the bill would have been this same model - direct regulation without a board.
The final area I wanted to touch on relates to policy oversight of these boards. I am not going to talk about a super-board, but in a state like Colorado and a lot of states around the country where you have a centralized department where all these boards are located, what is the role of the department? In Colorado, we clearly have a statutory role to do sunset reviews of not only the boards within our department, but throughout state government. That has been very effective.
We have also tried to coordinate with the governor's office. We have a new Governor take office in January and we will coordinate really closely with them on what kind of board members we need. Where the board is weak, where the board could use more diversity and so forth. That has been helpful to try to keep some linkage between the overall departmental needs and specific board needs and keep the governor's office in that loop. We have been involved in board member orientations and get them ready as soon as they are appointed and can go to a meeting and not cause too much harm. We have also been involved in ongoing board member training for all of our board members.
The last power that we have is what I call the power of persuasion. It involves several things - we control the staff, we control the budget, that is certainly a club but I think it is also a matter of the department's credibility where we can go in and say, "we think what you are about to do is a mistake. We think you need to rethink this." It is an informal power. A recent example is that or 14 years Colorado has been the only state in the country to allow full independent practice for dental hygienists. If a dental hygienist wants to practice apart from a dentist they can do that and this has always been pretty much hated by organized dentistry. But, for 14 years also, as part of the scope of practice for independent dental hygienists, the law says that hygienists can apply topical sealant as a preventive measure. For all of those years, the dental board has interpreted topical agents for prevention to include sealant. Sealants have become a big issue now and the dental board several months ago started holding public hearings on the issue. There was a lot of testimony, a lot of the dental profession and schools came in aggressively saying the literature has changed and it is not a good idea to be doing this. The board voted to adopt a preliminary policy that would prohibit hygienists from applying sealant unless the patient has first been seen by a dentist. It was a round about reasoning saying, to do it right, you really need a diagnosis to decide whether or not to apply the sealant, only dentists can diagnose, therefore, you need to see a dentist first. We went into the board and said that if we are going to make that kind of a change the legislature needs to give direction. This is not what a board is supposed to be doing. Maybe the literature has changed, I am not persuaded but maybe you are, but then you should be talking to the legislature, and this debate should be taking place there.
We were able to get the board to back off. The Colorado Dental Association is very angry with our department, while the dental hygienists think we walk on water. That was never the issue to me. The issue was that this was not the board's prerogative. It raises some interesting issues. If the decision of the board is to do it, I think that the repercussions in the real world of health care delivery in our state would have been enormous and I do not think anyone was thinking about that. Colorado, sadly, I am embarrassed to say, is one of only four states that does not include dental care in its health care plan for low income children. The lack of dental care for the poor is a reality, particularly in our rural areas. More than one half of Colorado's counties has no dentist at all who will take Medicaid patients. We also have a large migrant worker influx at certain times of the year of these kids. The only dental oral healthcare they get has been from dental hygienis ts. In an ideal world, I think every kid should be able to see a dentist and a hygienist and an optometrist or an ophthalmologist and a lot of things. But, it is not a perfect world, and this would have really disrupted that health care delivery to those kids.
Again, I am not sure if a licensing board in a vacuum should be making those kinds of decisions. Even though we were able to change the boards' minds, to me it raises a broader issue in terms of whether a type 1 board in a health care area really makes sense in all areas, whether perhaps the department should not be given some kind of a statutory role to formally review decisions that cut across professions, at least scope of practice decisions. I am not a big believer in super boards partly because I have gotten burned so badly in our experiment in that regard, but I am wondering if the department's role needs to be formalized.
Pam Brinegar: Thanks, Bruce. Our next speaker is Dena Puskin. Dena is the Director of the Federal Office for the Advancement of Telehealth. Prior to her current position, Dr. Puskin served as the Acting Director of the Federal Office of Rural Health Policies. She has assumed many leadership positions both within and outside of government. She currently chairs the joint working group on Telemedicine, the agency committee that coordinates the development of Telemedicine initiatives across the federal government as well as within the Department of Health and Human Services. Dr. Puskin spends considerable time speaking at national forums and writing academic papers and reports on health reform, rural health policy and Telemedicine issues. In the past year, she has given over 25 speeches on rural health and Telemedicine and has published several papers on Telemedicine and health reform.
Dena Puskin: Pleasure to be here and to co-sponsor this meeting. I have been very concerned and interested in the broader issues of professional licensure since 1988 when I joined the Office of World Health Policy. The issues of licensure are reviewed from a rural perspective in a somewhat different way and I think it was touched upon by the previous speaker. If you are working in rural health, sometimes you view the licensure restrictions as an impediment to access to care and not facilitators of access to quality of care. I think one needs to recognize that some people do view it as not necessarily facilitating the best and highest quality care especially in under-served areas.
You heard earlier from my colleague at the Bureau of Health Professions and both of us work at the Health Resources and Services Administration. I am going to focus in on telemedicine and telepractice. My office, the Office for the Advancement of Telehealth, is far broader and we deal with distance education, and a range of issues. Today, I will focus specifically on Telemedicine and Telepractice. Our mission is to advance the use of telecommunications and information technology to increase access to quality health services for undeserved populations. We have a tremendous focus on those who do not have, the "have nots" so to speak in terms of health care.
We have a partnership and we staff. We basically staff a joint working group on Telemedicine which is a group that cuts across all federal agencies, and there are over 60 members. It cuts across essentially places like the Department of State as well as the Veterans Administration and it has several functions. I will discuss a little bit later why I am telling you about this. Basically, it coordinates telehealth activities, telemedicine activities across agencies. It tries to ensure that there is no overlap in federal funding and it provides a forum for sharing information. The issue of cross-state licensure has been on this group's agenda for a long time and we have been dealing with it in different ways. It is one of those things like malpractice - it ebbs and flows. It is now flowing.
Let us talk about what we mean by telemedicine and telepractice. Part of it is basically providing basic clinical care at a distance. It is about helping people get care that they need when they need it. I will assure you that telemedicine and telepractice is expanding as rapidly in urban America as in rural. The reason is that we have isolation and that we do not like to acknowledge that in our inner city it is just as sad. If you live in inner city New York and it takes you two hours to get by subway to a medical center, are you any worse off than the rancher in Wyoming? Yes, maybe. Or as badly off.
It is about also helping practitioners to do their job better. We have an explosion of information out there. Practitioners can not, busy primary care practitioners can not, easily keep up with all the information that they need. They need help. It is also about providing services directly to consumers.
There is a woman in Arizona who is receiving essentially services from a home health nurse at a distance. She can consult every day with the nurse and can have her blood pressure taken, heart and lung sounds transmitted. All the demonstrations that have been used looking at this equipment for home health, have demonstrated that not only can we see savings in dollars, but we see essentially reductions in hospitalizations for acute exacerbation, and supervision of chronic disease patients is much better. What about the licensure issue? Clearly, we are talking about provision. Use of modern telecommunications and computer technology to provide health care at a distance. That is what we are talking about when we talk about Telemedicine. It is actually clinical services at a distance.
In 1988 I began looking at this in Texas at Texas Tech when I joined the Office of Rural Health Policy. The first project that I ever handled, I knew nothing about Telemedicine. I got the project because I was a biochemist by background. I asked what does that have to do with it? They said, "I do not know." We grew rapidly. In 1992 we did our first policy monograph and I published several papers at that time. We identified the problems of cross-state licensure as a major barrier to the ultimate diffusion of this technology to benefit rural America. Our basic concerns were the fact that people in rural America do not necessarily get their care in the states they are living in. A lot do but a lot do not because they live on borders. You look at Nebraska and Iowa and around the country you can see.
In 1997 with the Joint Working Group on Telemedicine and the Department of Health and Human Services and the Department of Commerce we produced a report sent to Congress called the Telemedicine Report to Congress in which we continued to identify cross state licensure as a major issue. We said, however, that telemedicine was not the issue. The issue was licensure.
Telemedicine brought in to practice concerns about licensure and whether our licensure laws were basically out of step with the delivery of health services in this country. In fact, with the use of modern telecommunications, we were talking about breaking down geographic barriers. Health care, at least within the US, did not necessarily reflect something that was unique from one state to another. Do we train? Are there really differences in training? Do not all practitioners have the same tests? What were the real differences that could demonstrate a relationship to quality that would outweigh the benefits the technology gives from improving access?
We looked at several models of licensure in terms of the way one would deal with cross-state licensure issues. There were consultation exceptions. A lot of states had come for the occasional consult. We had endorsement. The American College of Radiology basically proposed a model that was based on endorsement across states. That is where if you are a practitioner in one state you could apply to another state and that state would endorse your license in that state.
We looked at reciprocity and we looked at mutual recognition that of course is now well known to all of you the basis for the interstate compact model of the National Council of State Boards of Nursing. We looked at the registration model, and at the time California had not passed this legislation. We looked at the limited license model of the federation and we examined the issues surrounding national licensure. Now, you heard from my colleagues earlier, at this time we have now no desire on the federal level to be essentially the national licensure agency. But, even at that time we talked about the evolution of technology and that if the states did not make certain changes eventually there would be enormous pressure on the federal government to do something. We have had several pieces of legislation go through.
Again, the constitutional issues and some of the issues regarding preemption made it clear that even now there is not this great push for the federal government. However, national licensure does not mean federal licensure. There are ways to achieve national licensure with national standards and basically the Pew study is about essentially creating national standards that mean mutual recognition, and create a national licensure system. Clearly, there was enormous interest in that because clearly that was what we thought was a direction that was a direction that needed to go if we were going to achieve the benefits of Telemedicine in the future.
So, what happened? Well, what has happened since 1997? The push for cross-state licensure has actually created a backlash. It did not go the way one would have liked it to go. We do have the success and you will here later from my colleague on the panel. I consider it a success what the Council has done. They achieved a consensus on standards and they adopted a mutual recognition model to help support that.
Let us look state by state. In 1997 eleven states had adopted restrictive licensure laws. We were concerned then. We are we in 1999? Twenty states have adopted licensure laws requiring explicitly full licensure to practice in the state. From our perspective, that is a step backwards. That makes life harder, not easier. Four states have adopted the Federation of State Medical Board's limited license. This may not be up to date, but this is what I have: Alabama, South Dakota, Tennessee and Texas for physicians.
While we think that the federation approach is certainly an attempt to deal with things, in some ways, by explicitly listing some of these limited licenses and some of the differences across them, we do not achieve the national standards that we think are essential for telemedicine to reach its fruition. Also we are seeing still within the states so much variation even within the adoption of its laws that we do not think it has achieved the potential that was there.
What is the good news? Arkansas, Utah and Maryland have adopted or introduced mutual recognition for nurses. We consider this an enormous step forward. Notice, however, they are not contiguous. A bit of a problem! Okay, introduce Nebraska. Now, look at this, Texas. For nurses, they have the mutual recognition model. Physicians, they tightened it up. I think in some ways you could argue where the federation's tight noose is. Wisconsin and North Carolina. Okay? North Dakota is an interesting issue in full licensure and requiring it. North Dakota, this may go against your view of rural states being more willing to be flexible on these issues. I do not think they have an idea on what this technology is about. This is all about essentially using enhanced telephones by and large. Most of what people are doing, what we call store and forward. That is sending an image and talking on the telephone about the image. It is not that interactive. As of 1999, Arizona, Florida, Mon tana, New Hampshire, North Dakota, Oklahoma, Oregon and West Virginia introduced restrictive licensure laws in just that one year. So, we are not exactly going forward.
Well, what is happening in terms of the federal government? I mentioned that there has been a series of legislative attempts that have not gone anywhere. Senator Conrad who is from North Dakota, is extremely interested in this issue as are Senators Daschle and Baucus. Senator Daschle is from South Dakota and Senator Baucus is from Montana. They are very interested and you can understand why because they see restrictive licensure as a deterrent to getting services to their constituents. Conrad for several years has introduced legislation to in essence require over time some kind of a national license.
So, legislation is unlikely. Looking at regulatory efforts - watch Medicare. Medicare has a limited payment passed under the Balanced Budget Amendment. Congress passed legislation to allow for a limited payment to rural undeserved areas for Telemedicine consultations. Increasing pressure is on Congress to define something called store and forward, that use of technology that essentially takes a still image, by and large, videoplay, and sends it to the consultant. It is reviewed at a later time and discussed. In other words, it is not a live interactive.
In order to do that, they have to define, what is store and forward? What is telemedicine practice? They have not done it. They now have major studies doing that. The FDA has been very carefully looking at telemammography. Bit by bit you see the FDA approving a home care device and so the regulations that come into place over that, in a sense de facto, set regulatory boundaries to a certain technology. That is not telemedicine of course, procurement and protocol development. The federal government has set standards for video conferencing procurement. They are very interested in certain agencies setting some common guidelines and procuring technology. Again, de facto standard about what technology may work, what does not. What is appropriate, what is not.
Protocol development. Many grants are given out by the federal government in which are defined protocols of how you should handle a counsel. Those will become available. The issue here is we do not have agreement in the specialty as to what the standards of care are. Government is very reluctant to set professional standards. But, the protocols being developed very much may set de facto standards that occur. And, I think there will be increased pressure on society to do so as payments will drive some of this.
Finally, I want to talk about internet regulation. There was an earlier discussion about some of the privacy and confidentiality ruling that has come out. I think it is very important to look at what we have in terms of the internet. The internet is a very interesting phenomenon in our country. It is the great leveler. Basically, we are finding all sorts of information, as you did, on the Web site. Anything you want. Do you realize that for $50 I can go on a web site, and get a consultation from a physician. I can get a consultation from a physician and she will prescribe.
There is another web site that gives you some credentials, or supposed credentials of the practitioners. There is another web site that will provide for you, again, a consultation. There is no information about the quality of the practitioners, just the president and some of the officers of the company. Unless you look really carefully, you will not know that that web site is incorporated as Slovenian.
Technology is moving so rapidly that the regulatory paradigm that you are operating under may not be appropriate to where we are going and where people want to go. So, it raises significant challenges for you, no question. What I would like to tell you is a little bit about what we think some of the issues are and what we are examining at the joint working group. Credentialing. What is the role of credentialing? If you view telemedicine as technology with as a set of tools. When you are talking about a set of tools that are part and parcel of the practice of health care. Is a stethoscope a new specialty? We are talking about videoconferencing. We are talking about image phones. We are not talking about something really unique. We are talking about applying telecommunications and computer technology to the delivery of health services. All health professions should be made familiar with it. There should be requirements for accrediting training programs that say they h ave a course, and provide training in it. Continuing the education, if you want to look at something, look at continuing education in terms of the licensure requirements, as some kind of continuing education in the deployment of technology.
We think maybe that training programs at some point ought to be accredited, but certainly health profession schools need to begin to provide training in the use of technology and medical infomatics or health infomatics. In fact, back in 1994, the Yearly House Conference on Telemedicine, talked about recommendations for mandating in any health profession schools that have this kind of program.
Accrediting provider sites. The issue is not so much I think accrediting health professions in what they do, but if you are a medical school or a consultant school, what kind of standards are you employing in running your program? There is some issue and discussion about that.
Certification. There is a push on certain groups to certify in the area of telemedicine. Again, which tool do we certify. What do we certify? Again, the problem of telemedicine is that it is not one thing. Certification ensures that health care professionals meet and define standards for specified practice. We do not have the standards. Even if we did have the standards for certain kinds of practices, they are very specific for the specialty involved. They are not generic. We do not see telemedicine as a new specialty, but there are legitimate issues that need to be addressed because there is a lot of difference of opinion.
If the joint working group is going to be looking at some of these issues, in fact, they are asking for comment, what are some of the questions that we are looking for? What is to be accomplished by certification in telehealth? What would be the rationale be for certification? Would certification measure the knowledge domain or the defined skills? What dimensions of practice would be validated by certification? What would measure the practicality of the mechanism for certification? What would be the potential impact of certification on the health care consumer? We can actually see this as decreasing access.
Right now we are talking about a tool to help primary care practitioners. Is every primary care practitioner going to have to be certified in telemedicine? Would the proposed certification be required prior to practice? Would the certification be mandatory or voluntary? If certification is recommended would there be an outside organization? The standards must be met. And finally, how would the stated needs of certification be linked to measurable patient outcomes? This costs money. Right now the more you certify, what is the benefit?
We are basically asking each professional domain to review the document we have prepared which is only a two page document, and provide their position statement for the Joint Working Group. We will synthesize these positions and put it on our web site. We will come to no conclusions. We believe it is time for dialogue on this issue because of this tremendous pressure to add certification.
I talked about credentialing and the problems of the web. We think that there are enormous issues in trying to control the information on the web. I need not tell you that. One step we are taking is that we are establishing some standards by which the government will link to certain web sites at least in Health and Human Services. Since the government is the most highly respected source of information on the web, by creating those standards for what we will link to, we are hoping that we can help to influence what is actually considered legitimate to have on the web.
I think it is important since I have mentioned the Web to ask you a question and I am sure most of you have not. Have you seen our web site lately? If you have not, I urge you to go on it. If you have difficulty going on it, contact us. If you have difficulty, try the text version only. There are some graphics. Let me just say that we are putting a policy paper on licensure and updates on the Web probably in the next week to week and a half. We periodically put policy papers on. You can find information about who is funding what and you can find out about telemedicine projects that exist in your state.
Clearly, there have been lessons learned and not learned in the last several years. As telemedicine was brought into focus there were licensure issues. They are legitimate issues to be resolved. Major concerns remain in terms of quality of care but we believe most of the concerns that are echoed right now at least regarding cross-state licensure are driven by economic interest and not consumer protection. Given that, where are we? I think by their actions, consumers are saying that access to health care should not be hindered by geographical boundaries and they are increasingly asking why is it? That is our challenge. Can we answer that in any way that any of us are comfortable? Thank you very much.
Pam Brinegar: Thank you Dr. Puskin. Our next speaker is Jo Elizabeth Ridenour who is the Executive Director of the Arizona State Board of Nursing a position she has held since 1995. Prior to this position, she served as the Chief Operating Officer/Director of Nursing at Maricopa Health System. She is the current President of the National Council of State Boards of Nursing and has served as a board member of that organization since 1995.
Jo Elizabeth Ridenour: I think one of the biggest challenges that Pew has given us is to really think into the next century. What should the building blocks of a maximally functioning health regulatory system look like? I should note that the comments I make today are those of my own and not necessarily of the National Council.
I think the first remedy for the defects in the regulatory system is a national policy board to give advice on scopes of practice as well as continued competency issues. I think the national geographic remedy of state turf issues is a wonderful and exciting way to approach issues we have been dealing with for over 30 to 50 years within our states.
One of the things we have been trying to do at the National Council is to make sure there is much more empirical work tied to the changes that we make in our regulatory functions. In lieu of that goal, we have partnered with the Urban Institute to do a three-part study and the phase one findings were released in December. A lot of what I will say in the next few minutes relates back to the phase one findings of this first report.
One of the things we found is that few people, even nurses, understand the legislated mandates and scopes of practice issues. We would hope that a number of experts from this advisory board would also give us ideas of how do you really educate the public, and licensees and what scopes of practices really are.
In the foundation for material for the phase one findings that took place last year, there were eleven different focus groups in the interviews and we talked to everyone from the legislative branches to professional organizations, to board members, to board staff, to nursing organizations, nursing executives and nurses themselves. In trying to envision what this national board might do, I saw them as a national scope of practice rendering opinions through paper hearings and that the framework would include a regulatory impact competitive statement. Before this board would take any action on the scope of practice, the action must contain the written statement outlining the action, objectives and alternative ways to achieve the probable events to the public and invite public comments from the respective parties before publishing a final opinion.
The next major remedy for the regulatory defects has to do with the oversight board on the next overhead. And as David Swankin has written in some of the materials he has talked about regarding this particular recommendation, it is probably the most controversial of all six, related to government. When I was trying to do some research to see if anybody had really measured if there is anything in relation to this change that might truly impact the board, I found some work by Steven Breyer in his book called Regulation and Its Reform. He asserts that effective consumer protection is related to the disciplinary action that the boards take. A few procedure requirements really result in few changes for public protection. How can the Policy Oversight Board really address this claim by Steven Breyer? Maybe what are some of the structure changes relevant to improving oversight? I have been pleased to read about the state regulatory council that has been formed in Te xas, called the Texas Health Professions Council. My first recommendation really models after what they have been able to achieve. It is not an umbrella organization, but was originally charged to be responsible for two things: a toll free complaint line, for the entire state, and a board member training manual. The boards have continued to work together and they found many different economies, including group contracting, purchase and accounting functions being combined, mail functions and copy services just to name a few. They are still the policymaking body but they have found that they have become an effective administrative unit.
What is another possibility for oversight? In Arizona we passed an Ombudsman System Aid Act in 1985. The Ombudsman Advocate is for both the consumer and the licensee where complaints are investigated, information is given to the board and the response is needed and this report is summarized on an annual basis to the legislature.
Another one is probably one you are very familiar with which is the consumer protection agency to make sure that there are watchdogs out there ensuring that the needs of the health consumers are being met. We all agree that there needs to be legitimacy in the way that the boards are perceived in making their decisions. One way to achieve this is through public representation. I think more importantly that we need to put more focus on how people are selected for the boards on which they serve. Is there a way to really collect this in a different way than we have done in the past? It requires perhaps a truly independent board to evaluate the nominees based on their competence, experience and integrity.
Again, from the Urban Institute phase one findings, they found that when they interviewed people and conducted focus groups, one of their findings was that the all licensing health regulatory boards are really the best kept secret in health policy and somehow we have been challenged over the years to become much more visible on the radar screen of many people. In the report it talks about how do you access and give information to consumers and employers?
I do not think you will find a board in here that disagrees that we need to be given adequate resources. Again, in the Urban Institute Report, they state that the legislative members and executive overseers really expect much but in actuality they really give little as far as making those decisions on the appropriate amount of resources to be made available. We are hoping from the regulatory study that as states go forward with their budget processes they are able to give comparative data to further substantiate the need for whatever resources they are requesting.
Another consideration with which I really would like to challenge you and to you think about more is based on where we are with regulatory outcome studies at this point. Really take a different approach on how do we continue to make sure we are measuring that which is really most important for consumer protection. It is called the high noon process. We are very familiar with sunrise and sunset, well this is in the middle. It is really that we are responsible for looking at our own regulatory functions and assessing whether we doing it right or not. Based on that result we give a report to the health committee to make sure that they understand where we are as a licensing board and to vote to accept or reject the report.
Again, in the Urban Institute's Report you will see that there are about 50 indicators that they have begun to explore and should really assess for its vital functions. There are no magic cures but I think that the Pew Commission has challenged us and we need to continue to consider whether those building blocks truly represent a functioning regulatory system and perhaps, the high end approach, which is collecting data and demonstrating whether we are making progress or not, is the right way to go. Thank you.
Pam Brinegar: Thank you Ms. Ridenour. Our final speaker is David Swankin. David is President and CEO at the Citizen's Advocacy Center which is a training research and support network for public members of health regulatory and governing boards. He is also a partner in the law firm of Swanson and Turner, specializing in regulatory and administrative law. He has a broad background in both government and public interests advocacy and a government career including assignments in the White House and the US Department of Labor. He was the first Executive Director of the White House Office of Consumer Affairs in the mid 1960's and served as a Commissioner on the Pew Health Professions Commission during 1997 and 1998.
David Swankin: I would like to talk a little bit about the board's structure. I think it is important and probably in a way it should come last in the session because a board's structure is the way to carry out what it is that you are trying to achieve subsequently. Board structure is the institutional arrangement we create in order to achieve our objectives and in licensing that is to protect the public. I also think it is important to never forget that the reason we have to talk about board structure is because of the history of professional licensing. This is not a lecture on that.
We set up, beginning 150 years ago, individual boards. For good reason. We have a medical board at the state level. We have a nursing board, etc. Then, over the years, we overlaid a whole other set of regulatory mechanisms at various levels, federal state and local. So, we have local communities that do help us and we inspect facilities like the nursing homes and the hospitals with still another mechanism. We have a system that is a non-system; that is what we have done.
In the real world, that is not how practice takes place. People work together. Think of any institution. Think of a nursing home, doctors, nurses, physical therapists, occupational therapists, etc. Every single one of them regulated by a different professional licensing board in the 50 states. I guess the best way to summarize it is to think about this way, and this not a plea to move this on the federal level. It is an understanding that we have a non-system. If we regulated the airlines the way we regulate the health professions we would have 50 state boards that license pilots, 50 different state boards that license mechanics, 50 different state boards that license flight attendants. We have a different agency, federal or something else that regulated the airport, the manufacture of a plane, and so if we were starting from scratch I do not think we would have created the system that we have now.
I know at the Pew Commission one of the things we thought about was, should we just throw it all out and just pretend we were starting all over again and talk about what we would create? We rejected that idea because we thought it would be useless. We had the non-system system that we have now. The question is, what can we do about it to make it work. I am quite comfortable with that approach. What can we do with the system that we now have to make it work?
Troy Brennan this morning talked about the issues that we looked at when we developed our recommendation. They were limited public participation, limited information accessibility for the public, little policy coordination among individual boards, states and other consumer protection mechanisms, and the new role protecting consumers in the new health care area which is really a conclusion of it all.
So there were six recommendations on board structure that have been mentioned today: the policy advisory body; state policy coordination oversight body; increased public membership on boards; boards that provide more practice related information to the public; more staff and more funding for boards; and laws to facilitate professional mobility and practice across state lines. Those are the six recommendations in shorthand that were put out by the Pew Commission regarding board structure.
The policy advisory body has been addressed this morning and will be addressed more especially in the scope of practice session tomorrow, so I really am just going to pass over that other than to say in my mind the notion of a national policy advisory body to develop standards and guidelines with regard to scope of practice and continuing competence is an extremely good idea. Practice guidelines have helped everybody and nobody takes a practice guideline as a federal agency and says, "this is the practice guideline." At least, it has not happened, and I hope it does not happen.
But, within an entire profession to look at a practice guideline, it has been enormously helpful in many ways and I think if we look for both scope of practice especially and continuing competence and we said, this is what we know collectively. We have looked at what the evidence has said and we generated more evidence and everybody would be helped. I think on that discussion all we can do is to add more facts to the decision making process so it is not purely political and that is why I think it is a good idea.
On the oversight policy board let me say this. I think everyone in this room, especially because a lot of people in this room come from regulation, many people, I would suppose would say to themselves, "oh, no! Another super board. We tried it once and it was a dismal failure." Not a lot of sympathy for that idea. I think looking at the history of oversight boards, I think the notion was driven by economics 20 years ago. The idea was that if we put the umbrella boards in, this is what they sold to legislatures, we are going to save money. We will have one set of investigators, we will have one set of telephones. We will save money. Guess what? All the boards said, first of all, you did not save money. Secondly, you cut down services. Third, it was a bad idea, why don't you just admit it? To the extent that is true, and I think there is some truth in that. I would never stand up here and support the notion of oversight policy boards. I think that we need a new reason to look at the need for oversight policy boards. They do not replace what existing boards do. I do not see them as that at all.
Having said that, there are other issues that transcend individual boards and the one that I like to put on the table is collaborative practice agreements. As I mentioned before, out there in the real world, people are working together all the time. A collaborative practice agreement is a good way to at least codify what people can do under what levels of supervision in what setting as a consumer protection. It is a good thing. But, the way we have it now is what it requires. If you have a collaborative practice agreement between pharmacists, nurses and physicians, in most states you will have three different boards writing three different collaborative practice agreements and you do not have to be a smart lawyer to understand that the most restrictive of those agreements is the one that will cover everybody else.
So, if two of those boards really think it through, and come up with a real sound collaborative practice agreement and the third board does not, nobody can work under it. We need to have some ability to address those kinds of issues. In the state of Virginia there is a health policy board that has been around for a long time. The joint commission which is a review body, (kind of like the auditor general in Arizona, they are called different things in different states) was an oversight board. A policy oversight board. Recently, within the last three months their report came out, extremely critical of the board. They said that it did not live up to what it was established to do. It did not coordinate policy. I do not see that as a criticism of the institution, I see it as a criticism of the way that that institution did not do what it was supposed to do. I would encourage people to have a more open mind to the notion that there is a need for an oversight policy coordi nating body.
The last idea I want to throw on the table is not just coordinating issues between boards, it is between boards and other types of institutions. Back to the nursing home, the people that look at the nursing home do not necessarily talk to the people, the professionals who were in the nursing home. There are a lot of examples of a lack of exchange of information and communication between the facility overseers and the licensing board. So, that is still another need, and to me, is what oversight is about.
Finally, the one I would like to talk a little bit about, is increased public membership on boards since it is where I come from. I think it is a good idea, obviously, and I think that it all has to do with accountability and credibility. Again, if you stand back from it, this is not an issue only facing licensing boards. Here is a press release from the Joint Commission on Accreditation of Healthcare Organization: "the Joint Commission on Accreditation of Healthcare Organizations is to establish a new public advisory group on health care quality. This action signals a clear joint commission intent to build working relationships with recipients of care, and those who advocate on their behalf." This is a quote from Dennis O'Leary. "We need to focus our attention on the interests of those who are receiving care or will receive care in the future." That is the public in the broadest sense.
There is not an institution around, in a day where people do not trust institutions, that does not require something to make itself more credible. Are public members better than professional members? No. Are they the good guys and the professional members the bad guys? No. Are they the ethical people as opposed to the unethical people? No. But, they do bring accountability and credibility if they are well selected, if they can do the job, which they can. Bottom line, since the 1990's medical boards, the granddaddy of all the regulatory boards, in ten of them, the public member has been elected by their peers to be the chair of the board. That says to me that you can achieve high quality public members if you have a method of looking for them. It is a whole other issue that maybe we will get to in the breakouts of what the qualifications of public members ought to be.
I think finally, when you look at boards, they are about much more than discipline. Boards, in most states, are given enormous authority by legislatures to set policies. I look much more to the rule making function of the board than I do to the disciplinary function. If all boards did was to conduct discipline, then I think public members would still be important, but not nearly as important as when talking about policy. What should the priorities for this board be?
I will leave you with this question: There are only a handful of states today that put out practitioner profiles of physicians. How many put them out for other health professions that deal directly with the public? If the idea was that the public ought to be able to find out about their health professionals, anybody know a place where you can find out a profile of your Physical Therapists that you deal with directly? Your Occupational Therapists, nurses? You have a sick person at home and you will have a visiting nurse, somebody will come into your house, any place you can look it up? We are just at the beginning of profiles. Buy a public member on any board, sure it will take money, sure it will take legislative authority, it would be way up there on my list. When are we going to do profiles? That is why you need public members. Thank you very much.
© Council on Licensure, Enforcement and Regulation (CLEAR)